Ababio II v. Kweku Nsemfoo (1947) is a landmark WACA decision on customary land law, tenant-farmer rights, and stool land administration in Ashanti.
The 1947 West African Court of Appeal decision in Nana Gyebi Ababio II, Essume Jahene of Essumeja v. Kweku Nsemfoo remains a foundational authority on land tenure under Ashanti customary law, particularly concerning how a victorious stool must deal with farmer-tenants settled on stool land after a boundary or title dispute. The case clarifies the obligations of a stool owner toward subject-farmers and articulates an important judicial principle on proving native customary law in native courts.
Cole v. Cole (1898)Full Case Summary & Legal Analysis | L.M.S.R
FACTS OF THE CASE Ababio II v. Kweku Nsemfoo(1947) LAW-MADE-SIMPLE Report (L.MS.R)
Land litigation had previously arisen between the Stool of Essumeja and the Stool of Offoasi, eventually reaching the Privy Council, which declared the land in favour of Essumeja.
After this victory:
The Essumejahene (appellant) attempted to negotiate terms for the continued occupation of Offoasi subjects (tenant farmers) through the Offoasihene (their chief).No direct notice was given to the farmers themselves.When negotiations failed, the Essumejahene obtained a writ of possession, resulting in the ejectment of Offoasi farmers, including the respondent, Kweku Nsemfoo.
The respondent sued in the Asantehene’s “A” Court seeking:
Recovery of possession of his cocoa farms and house, or
Damagesfor wrongful dispossession.
The Native Court ruled in his favour. The Chief Commissioner’s Court affirmed. The Essumejahene appealed to WACA.
ISSUE IN Ababio II v. Kweku Nsemfoo(1947)
Whether the Essumejahene complied with Ashanti customary law regarding notifying and negotiating tenancy terms with Offoasi farmers before ejecting them from stool land.
MUSTAPHA RUFAI OJIKUTU v. FELLA(1954) Full Report L.M.S.R
HOLDING IN Ababio II v. Kweku Nsemfoo(1947)
The WACA affirmed the lower courts, holding that:
Under native customary law, the appellant was required to notify the farmer-tenants directly, not their chief, and give them the opportunity to enter tenancy agreements. Failure to do so made the ejectment wrongful.
CUSTOMARY LAW PRINCIPLE ESTABLISHED Ababio II v. Kweku Nsemfoo(1947)
The core customary rule restated in the case: A stool that regains or establishes title over land must:
1.Notify the actual farmer-tenants in occupation, not merely their chief.
2. Invite them to appear and negotiate tenancy terms.
3. If they refuse, the stool owner must:Sue them directly in a competent courtRequire them to justify their occupationSeek orders compelling tenancy or eviction.
Failure to follow this procedure invalidates any attempt to eject them.
KEY JUDGES’ DICTA IN Ababio II v. Kweku Nsemfoo(1947)
1. Kyidomhene’s Dictum (Native Court
The Kyidomhene explained the custom succinctly:
“According to native customary law, the only remedy of the defendant was to notify the farmer-tenants… to come before him for tenancy agreements, and if they failed… he could sue them… to show cause why they farm on his stool land and refuse to enter into tenancy agreements.”
This dictum became the backbone of the decision.
2. M’Carthy J. (WACA) — On the Need to Prove Custom
M’Carthy J. clarified an important jurisprudential point:
“Proof by evidence of a native custom is not necessary before a Native Court whose members are familiar with that custom.”
He explained that:
The rule in Kobina Angu v. Cudjoe Attah requiring proof of custom applies to British-type courts, not Native Courts, whose members are custodians of their own customs.
Native courts may rely on their own knowledge unless the parties insist on leading evidence.
This has become a guiding authority on judicial notice of native law by native courts
3. On Writ of Possession
The court also stated:A writ of possession against a chief cannot automatically bind subject-farmers, unless custom requiring notice to them is complied with.The Privy Council judgment only settled title, not ejectment.
Citing Kuma v. Kuma, the court reaffirmed that:
A declaration of title is not equivalent to an order to forcibly eject persons already in occupation.
COURT’S REASONING
The Appeal Court dismissed the appeal for the following reasons:
1. Failure to Notify Farmers Directly
Negotiating only with the Offoasihene was “insufficient compliance with customary law.”The custom required direct personal notification to the tenants.
2. Knowledge of Notice Cannot Be Presumed
The respondent’s role as Safohene did not mean he was aware of the offer.Custom required an actual invitation—not constructive notice.
3. Writ of Possession Not a Substitute for Custom
Though the appellant had a writ of possession:It did not override the need to follow the native customary process.Ejecting farmers without offering tenancy terms was unlawful.
4. Native Court Competence on Custom.
WACA accepted the Native Court’s expertise in customary law and saw no reason to disturb its findings.
AUTHORITIES RELIED UPON in Ababio II v. Kweku Nsemfoo(1947)
1. Kuma v. Kuma (5 W.A.C.A. 4)A declaration of title does not automatically eject occupants.
2. Kobina Angu v. Cudjoe Attah Custom must be proved in British-type courts unless it has become notorious.But this principle does not bind native courts.
Appeal dismissed with costs of £15 1s. 0d.
Cole v. Cole (1898)Full Case Summary & Legal Analysis | L.M.S.R
KEY TAKEAWAYS FROM Ababio II v. Kweku Nsemfoo(1947)
chief must notify farmers personally before changing land tenure relationships.Custom governs procedure—not merely English legal forms such as writs.Native courts have inherent expertise in their customs.Title and possession are separate legal questions.This case reinforces Kuma v. Kuma and refines Kobina Angu.
Cole v. Cole (1898)Full Case Summary & Legal Analysis | L.M.S.R