This is an interpleader case. about two years ago the judgment creditor, Lokko, with a view to the raising of a loan of £16. As security, Konklofi offered his land. He told Lokko that the ladn was his own, that his father Jabba had had the ladn before him, and that it had beeen divided between him and his brother Kwamin Kuma. Lokko knew that the judgment debtor and his brother had occupied the land for a long time, that the judgment debtor had a village and cocoa and sugar cane farms upon the land, and that part of the £16 was to pay off a pledge over the cocoa crop--it is possible that he was informed that hte pledge was over the cocoa farm-- and in the circumstances Lokko lent the £16, with interest £8, receiving the ladn as security for the loan and interest.
The loan and interest not having been paid, Lokko brought an action in the District Commissioner's Court for his £24. Konklofi does not seem to have put in an appearance, and judgment was given in favour of Lokko for £24 and costs. Konklofi thereupon came to Accra and saw the claimant Bruce, who asked him what he had given as security for the loan. Konklofi said that he had given the land. Bruce thereupon advised him to try and pay the debt so as to free the ladn; that, I am of opinion, is practically what Bruce said. Teh mony was not paid, Lokko took out a write of fi. fa., and Konklofi's village, with his cocoa and sugar cane farms, where attached in execution--the notice of attachment is not clear as to what was attached, but that is all that is alleged to be attached, adn Lokko claims to attach no more.
As soon as the land was attached the Ohene of Berekusu heard of it, through Konklofi or otherise, and he, too, asked Konklofi what he had given as security for the loan. Konklofi explained that he had given his land, and the Ohene advised him to pay the debt and free the land. He also remonstrated with Konklofi for having pledged the land without first telling him, and Konklofi to ``pacify'' him, gave him a bottle of rum, which was accepted. The Ohene probabbly told Konklofi to go to teh claimant for advice, and Konklofi again proceeded to accra to see teh claimant, who decided to interplead on the ground that the land was attached to the stool of Berekusu, and therefore could not be seized in execution.
When the interpleader came on in the District Commissioner's Court, it was dismissed on the groudn that the claimant was not the right person to bring it. This Court, however, on appeal, reversed that decision, and then, at the request of both sides, proceeded to hear the case itself, iinstead of seending it back to the District Commissioner's Court.
The question to be determined is whethe rhte judgment debtor has such right, title and itnerest in the land in question, and the village and farms thereon, as can be attached in execution.
It is necessary to consider the history of this plot of land. I do not accept all that the claimant and his witnesses stated, and where I do not place credence in their evidence I have to fall back upon inferences and probabilities. the facts are, I beleive, as fowllows:-- Some 40 years or more ago Jabba, the fatehr of Konklofi and Kwamin Kuma, came to berekusu Larte Kofi, the then Ohene of Berekusu, and was given teh land in quesiton to work upon. He worked upon it until about 1873 or 1874, or thereabouts, when he died. The ladn was bush land, but porbably he had a small farm there, and the palm trees about the spot were regarded as for his use. His two sons were young men at his death, hardly old enough to have farms of their own, but as they grew older they attached themselves particularly to the land their father had; Konklofi worked one portion of the land and Kwamin Kuma worked the other, a road beign teh line between tehir respective portions. I do not think that Konklofi worked for Lamily as he states. All he wwould have done would have been to give her, as stoolholder, occasional pressents of palm nuts, palm wine, yames, etc. Konklofi had other farms on other parts of the Berekusu land where he worked by way of shifting cultivation, but the land inquestion he permenently settled upon. He made a village on the land, probably about twenty years ago, made a sugar cane farm close by, where the canse would be allowed to grow as long as the soil continued good, and about five years ago made a cocoa farm. He has been in the habit of giving the Ohene and the claimant, as the heads of his family, a small portion of the produce of his shifting cultivation, such as yams, etc., or the bush produce, such as palm nuts and palm wine; he does not give them anything from teh land in question. The land has never been definitely allotted to him as his portion fo the stool land, but it is recognised as his land, and I am satisfied that it could not be taken from him by the stool.
In the first place it is to be noted that this is not family land but stool land. The Berekusu stool has only a limited quantity of land attached to it, and for that reason it approaches family land more nearly than where there is a large tract of land appurtenant to the stool, but still it is stool land under an Ohene, and the decisions which apply to family houses and fmaily land do not apply in this case. The decisions as to family land, which reach far back, show that the English Courts will not, other than in exceptional cases, permit family property to b e seized in execution. In this way the family reaps the advantage of both the native and English law, without the disabilities of either system. By native law the family property could not be seized for the debto of one of the members, but any member of the family might be panyarred until the family paid the debt and expenses; the English law put an end to the panyarring, but allowed the family to retain the advantage of non-seizure for a private debt. Had section 19 fo the Suprem Court Ordinance, 1876, been in force at the date of the firsst decision, it is possible that the Coruts might have invoked the aid fo the concluding words of that section, and have rquried the family to pay, and, in default, have allowed the property to be sold. That course, however, was not adopted, and the law is now settled in favour of family property.
Stool property is on a different footing. I do not recollect ever having heard of family property having been partitions; on teh other hand, it is common in cases before this Court for a person to stay that the land is his because he got it from his father or grandfather. He does not say so in so many words, but it is clear that his father or grandfather first farmed the land, then built a village on it, settled on it, and became in time to be recognized a sthe exclusive owner fo the land. Possibly the first entyr may have been with the consent of the stool, but graudally, without further application to teh stool, occupation ripened into full ownership. In this manner much stool land has become private land. I have never known a case of family land having become private land in this way. Again, one ground of the refusal of the English Courts to allow family land to be seized in execution for the debt of a member of the family, is because it would introduce a stranger into the family. Usually the family property is a house; each room i soccupied by a member of the family; it would be difficult to sell the room occupied by a member, and it would not be fair to the rest of the family to have their privacy intruded upon. So, too, family land is often farmed in common. Stool land is nearer akin to waste land than to family land; subjects of the stool farm where they please as long as they do not disturb other occupiers; they may apply to the stool for land, but often they do not; all that is generally expected of them is to make contributions to tehir particular head. As decisons with respect to family land do not apply, I must consider the case upon its own merits.
A judgment may be enforced by teh attachments of all the judgment debtor's property real and personal (O. 44, r. 5). Where a person interpleads, ``if it shall appear to the satisfaction fo the Court that the land or other immovable . . property ...being in possession of the `judgment debtor' was so in his possession not on his own account, or as his own property, but on account of, or in trust for some other person, the Court shall make an order for releaseing the said property from attachment. But if it shall appear to the satisfaction fo the Court that the land or other immovable . . property was in possession of the `judgment debtor' as his own property, and not on account of any othe person ...the Court shall disallow the claim.'' (O. 45 r. 25). Now no direct evidence has been called as to whether Konklofi had any property (any right, title and interest) in this land, other than exclusive ownership, which could be sold, but it is nototious that as long as the stool-subject continues to live on or to work land, so long is he entitled to live on and to work that land. Furthermore, the evidence shoes taht Konklofi is entitledk to use his village and farms; as long as he likes he can live n his village, cut his sugar canse ssn dpluck his cocoa, and the stool hodler cannot disturb him. He has, therefore, even assuming the land to be stool land and not his property, a valuable interest in this land. I see no reason why this interest o rproperty should not be seized and sold in execution, and on that ground I am of opinion that the land should not be released.
But the judgment creditor goes further than this and contends that the land is no longer stool prpoerty, that the stool has reclassed its rights over the land to Konklofi.
I will now consider how far that contention is, in my opinion, good.
All the parties concerned are natives, and the transaction was a peculiarly native one. There is, however, as far as I am aware, no procedure in native law similar to our seizure in execution, so that it is not easy to apply native law. But some light may be thrown upon the subject by a consideration fo what would have happened in a case of this sort had it been dealt with by a native Court. When seeking al oan, the native borrower invariably comes pepareed to offer security of some sort: he may have friends ore relations as sureties; or he may give ladn as security; or, in former days, he may have given his body, i.e., he may have agreed to pawn himself to teh creditor in case of a default. In reply to his counsel, the Ohene Kwaku Nyami said that in this case Lokko should have looked to his sureties; but here the land stood for the sureties, and by native law it was to that which Lokko would have looked. It was this which I believe was recognize by both teh claimant and the Ohene when they tld Konklofi to get money and pay the debt and save the land. It was not shifting farm land that he had pledgeed, but land which he had occupied for many years, and which his father had occupied before him, ladn upon which he had built a village and upon which he had permenent cultivation; knowing all this they felt that, however, wrong Konklofi had been to pledge teh land without telling them, nevertheless the pledge was valid. That, I am of the opinion, is shown by their atituted at the time. It was only when the land was attached in execution that the idea occured to claimant that hte land, being stool land, could not be sold. Now if by native law a pledge of such land for a debt was valid, how can it be said that the ladn cannot be attached under a write of Fi Fa?
Mr. Papafio urged that stool land could not be alienated without the consent of the family or the stool hodler and elders. But teh consent need nto be overt, i tmay be implied from circumstances. In teh case of Obobi v. Solomon, before the Full Court in 1905, sool land was claimed as agaisnt the stool holder, and it was then held that reasonably prolonged occupation of stool land would of itself have been strong evidence that the occupier had the constent of the stool to occupy. In the present case there has been continuous occupation for about 40 years, and the occupier has been permitted to build a village on the land and to make permenant farms. the presen tis like thousands of similar cases. Stool land has been settled by a father, the son as succeeded, has built a village and has made a hoem on the land; there has been no express alienatoin by teh stool, but there has been recognition of the exclusive occupation. Suppose the Berekusu stool fell into debt? I can quite understand that Konklofi would be expected to share the debt, for he is subject to the stool, but if the stool land were to be seized in execution, can there be a doubt that Konklofi could successfully interplead? As sooon as the Court ascertained that he and his family had had continuous occupation for 40 years or over, and thathe had permenent cultivation upon the land, it would bdecide that he had appropriated that portion of the stool land to himself with the tacit cosent of the stool, and that it was no longer stool property, but his own property.
Whether the stool has impliedly consented to Konklofi appropriating the land as his own, or whethe rthe view be taken that teh tsool is now estopped form putting forward its claim to the land, does not matter, but I am of the opinion that the occupation has been of such continuance and of such a character that hte land must be now deemed to be the property of Konklofi and seizable in execution.
Claim disallowed. Costs for the execution creditor.
(Sgd.) W. BRANDFORD GRIFFITH, C.J.
N.B.--This judgment was affirmed on appeal.
Chief Justice reads the following judgment:--
In this case the main difficulty has been the reconciliation of English and native law, but a consideration fo the facts and of the practice of the native Courts gives a fair solution of the problem. As soon as the Ohene heard of the attachemlnt of the land in execution he asked Konklofi what he had given as security fo rht eloan. Konklofi explained that he had given his land. The Ohene advised him to pay the defendant and free the ladn. He also remonstrated ith Konklofi for having pleged the ladn without first telling him, and Konklofi, to ``pacify'' him, gave him a bottle of rum, which was accepted.
When seeking a loan, the native borrower invariably comes pepareed to offer security of some sort: he may have friends ore relations as sureties; or he may give ladn as security; or, in former days, he may have given his body, i.e., he may have agreed to pawn himself to the creditor in case of a default.
In reply to the Court the Ohene said that in this case Lokko should have looked to his securities, but here the land stood for the securities, and by native law it was that to which Lokko should have looked. It was this which I believe was recognised by both the claimant and the Ohene when they told Konklofi to get the money and pay teh defendant and save teh ladn. It is clear, therefore, that by native law Lokko should have looked to his security, i.e., to the ladn. That is what he is doing now. Had the case gone before a native Corut I have not doubt that such a court would have decided that teh Ohene, as head of the trie, must pay the debt, or that the ladn must go to Lokko. Thi sCourt cannot make such an order. But then the Ohene cannot claim the advantage both of English law and native law without their corresponding disadvantages. He cannot say taht the English Court has no power to compel him to pay teh debt, whilst by native law the land cannot caase to be stool property without a formal divestment on the part of the stool holder.
Here one has to reconcile English and native law as far as possible, the case being by neither.
In my opinion the way to r econcile it is to follow what a native Court would do in such circumstances as nearly as possible. ``Look to the surities,''' says the Ohene. Let Lokko lok to the land, wheich Konklofi says was hi ssurety. That is precisely what he is doing, in accordance with teh forms and methods of English procedure. By native law Lokko, not being subject to the Berekusu stool, would owe no duties to the Ohene of Berekusu with respect to the land taken, consequently the execution purchaser would purchase the land free from any tidies to the Ohene of Berekusu. If the Berekusu stool suffer damage it must be to Konklofi, who still remains subject to teh stool, that it must look.
Again, I am quite clear, if the Berekusu stool land was being sold in execution for debt, that this Court would hold that Konklofi's land did not pass by such a sale. It would do so upon the assumption taht Konklofi had apporpriated to himself a portion fo the stool land as his own property, and that the stool hodler had acquiesced in such appropriation. For these reasons and for the reasons given in my former judgment I am of the opinion that the land can be sold in execution, and that the Ohene, having declined to pay the debt, Lokko is entitled to sell the land in execution, and the judgment of the Court below should stand.
19th May, 1908.
Appeal dismissed with costs, £12 2s., for the respondant.