[page 81]
OF DOCUMENTS AND LITIGANTS
DISPUTES ON INHERITANCE IN ABETIFI - A
TOWN OF COLONIAL GHANA
Stephan F. Miescher
Introduction[1]
In June of 1943, the Registrar of the Abetifi Native Tribunal recorded the following claim by plaintiff {kyeame Kwame Ansong against defendant Kwaku Ansong in the record book of this small customary court in what is now Ghana:
The plaintiff [{kyeame Kwame Ansong] claims that defendant [Kwaku Ansong, should] show cause why the [plaintiff] is not liable to declare before the Tribunal that plaintiff is the bona fide and undisputed owner of all that piece or parcel of land situated being and lying at Oboyan near Abetifi (Presbyterian Mission Station) and bounded by the properties of the late Kofi Suoman, Madam Obyaa, late Madam Kru; a land with a compound house and its messuages and other appurtenances thereto built some time ago by the plaintiff for his mother Akosua Okyeraa late of Abetifi.[2]
[page 82]
Both sides in this case agreed on the following events. About twenty years earlier, the plaintiff - an {kyeame (spokesperson) of the Ad[ntenhene of Kwawu[3] - had a house built at a cost of £52 for his late mother, Akosua Okyeraa, in the Christian Quarters of Abetifi. After his mother died, the {kyeame made an attempt to sell the house in order to recover some of his debt. His brothers, however, did not permit the {kyeame to part with the house. The brothers met under the mediation of their abusua (matrilineage) chief, Akwamuhene Kwabena Adofo, to find a compromise. One brother, Yao Charles, brought the {kyeame £13, for which a receipt was issued, in order to cover some of the {kyeame's debt on the house. The receipt of £13 was presented to the Tribunal as crucial evidence of a money transaction between Yao Charles and the {kyeame.
This dispute over the ownership of the house, as it was brought to the Tribunal, rested on two different readings of the receipt. The plaintiff, {kyeame Ansong, saw the receipt as acknowledgement that Yao Charles, on behalf of his brothers and the abusua, had given him £13 to help repay the loan on the house. Since the brothers had contributed £13 to the outstanding debt, the house became, according to the {kyeame, property of his whole abusua. The defendant, Kwaku Ansong, presented a different reading of this receipt to the Tribunal. He maintained that the receipt was a part-payment of £13 for the purchase of the house by Kwasi Akuamoa - one of the brothers of the {kyeame - who had sent the money to the {kyeame through Yao Charles; hence Kwasi Akuamoa had become the owner of the house. After this alleged sale of the disputed house, Kwasi Akuamoa had occupied the house with his wife and children until he died. The disputed house was inherited patrilineally - as defendant Kwaku Ansong explained to the Tribunal - by the children of the late Kwasi Akuamoa.[4] Defendant Kwaku Ansong was the brother-in-law of Kwasi Akuamoa; he represented the interests of the late Kwasi Akuamoa's children as their w[fa (maternal uncle).
Kwaku Ansong's interpretation of ownership and succession was vehemently disputed [page 83] by the {kyeame, who stated that the house was never sold and still belonged to his abusua. In order to underline his abusua's claim, the {kyeame had sworn an affidavit before the District Commissioner of Kwawu confirming the abusua's ownership of the house; the {kyeame presented a copy of the affidavit to the Tribunal as evidence. The {kyeame demanded that Kwaku Ansong prove the alleged sale of the house. This led the Tribunal to issue a summons calling Kwaku Ansong to testify, thereby initiating the present case.
This dispute about rights of succession in Abetifi calls attention to an ambiguous space in which people have maneuvered between two orders of inheritance throughout the twentieth century - one embedded in the matrilineal descent practiced among Akan people of Kwawu, the other established by the Presbyterian Church, the former Basel Mission. Both are part of a larger legal system created by colonial rule, elaborated and modified in post-independence Ghana. Such disputes concerning matters of inheritance were common among the people of Abetifi and frequently brought to the local Native Tribunal during the late colonial period. In this paper, based on close reading of {kyeame Kwame Ansong v Kwaku Ansong, I explore conflicts over inheritance in Abetifi in the 1930s and 1940s.
The present discussion examines the experiences of cocoa farmers, traders and teachers with the colonial legal system in Kwawu, an area of small rural towns in the Ghanaian hinterland. The practices of litigants in the Native Tribunals of Kwawu are more representative of the involvement of most men and women with the colonial legal system in Ghana than those presented by Roger Gocking for the littoral towns of southern Ghana.[5] English common law was more widely practiced in the coastal towns than in the rural hinterland. Moreover, a professional class of lawyers had emerged since the late nineteenth century.[6] No lawyers were based in Kwawu during the 1930s and 1940s. Legal practices, as applied in inheritance disputes, tended to be more fluid and usually remained outside the scope of higher colonial courts, since decisions by Kwawu Native Tribunals were less likely to be appealed by professional lawyers.
All actors in the case, {kyeame Kwame Ansong v Kwaku Ansong, were navigating between at least two different systems of inheritance. Their actions were grounded in a deeply historical understanding of the available options. In arguing their claims, [page 84] the litigants sought to create their own spaces in order to operate to their advantage. The present discussion aims to show how the various participants - the plaintiff and his witness and the defense, as well as the members of the Tribunal - worked within the intricacies of these two conflicting notions of inheritance. An analysis of a single case enables a close examination of domains of negotiation and contestation, even if they may not be explicitly addressed within the recorded proceedings. Such an approach reveals the social relations and legal options of the litigants, embedded within the larger historical context of Kwawu during the late colonial period. This discussion expands the case study method developed by legal anthropologists examining processes of dispute settlements. I have attempted to make the case study method more historical by scrutinizing the historical construction of the colonial legal system as it operated in Kwawu.[7]
In this paper, I am especially interested in the innovations wrought by the introduction of written documents to legal disputes conducted in and outside the courtroom at the Abetifi Native Tribunal. I will explore the operation, meaning and interpretation of written documents within this case, and then examine how the existence of these documents influenced legal strategies selected by the litigants. Hence, the paper also addresses issues dealing with the interconnections between orality and literacy as reflected in the legal proceedings at a small rural court in colonial Ghana.
Abetifi in Kwawu
The Akan state of Kwawu, about one hundred miles north of Accra, is mainly located on part of a mountain ridge, at times resembling a plateau, with spectacular scarps that stretch from the Volta river in the east to the Asante town of Mampong in the west. Kwawu also encompasses lands in the forest area south of the ridge, and portions of the savannah of the Afram plains north of it. Most larger Kwawu towns, including Abetifi, are situated on the ridge and enjoy a cooler climate than the surrounding lowlands. During much of the nineteenth century, Kwawu was part of greater Asante, the dominant power in pre-colonial Ghana. In 1875, following the British defeat of Asante and invasion of the Asante capital of Kumase, the Kwawu {manhene (paramount-chief) and his ahene (subchiefs) broke with their Asante overlord and welcomed the Basel Mission, which opened a church and a school in Abetifi. The Basel missionaries were instrumental in negotiating the Protectorate Treaty of 1888 with the British, gradually incorporating Kwawu into the Gold Coast [page 85] Colony.[8]
As elsewhere in the Gold Coast, missionaries of the Basel Mission - a pietistic organization from Switzerland with strong ties to Württemberg in southern Germany - made a deliberate effort to separate their newly converted Christians from local people.[9] When they opened a station in Abetifi, they acquired land outside of town and offered plots to converts to build houses within the boundaries of the Salem or Christian Quarters. There, converts were expected to live according to a set of rules, the Gemeindeordnung, which intervened in every aspect of daily life and reframed relations by promoting specific forms of masculinity and femininity. According to these guidelines, and contrary to Akan practice, husband and wife were expected to live together with their children under one roof, share meals, worship together and plan the education of their children. For their sons, schooling was compulsory; for their daughters, it was optional, though recommended.[10] The Gemeindeordnung also established specific rules concerning inheritance and succession. During the First World War, the Basel Mission was expelled and replaced by the Scottish Mission.[11] Although the latter granted more independence to the mission church, which reorganized itself as the Presbyterian Church of the Gold Coast in 1926, the separate Christian communities continued and expanded during the interwar period.
Missionary and colonial observers portrayed the matrilineal people of Kwawu as industrious farmers who cultivated land around the towns on the ridge and in farming [page 86] villages south of the plateau, growing a variety of food crops such as "mountain rice, yams, plantains, bananas, maize, white and red beans, tomatoes, garden eggs and okra".[12] In addition, Kwawu men regularly hunted game in the Afram plains and fished in the Afram river.[13] During the colonial era, Kwawu people were also well-known for their trading activities. In the nineteenth century, when most trading interest focused on the north, traders frequented markets across the Afram plains in Salaga and Atebubu, exchanging kola nuts, imported fabric and glass beads for hides, metal craft and slaves. At the beginning of the twentieth century, Kwawu traders began to re-orient their trading towards the emerging commercial centers in the cocoa growing areas of southern Ghana. They successfully invested their profits in cash crops, launching a cocoa industry within Kwawu, and erected cement buildings in their hometowns on the Kwawu ridge to demonstrate their newly acquired wealth. During the interwar years, many large houses were built in Abetifi, some of them two stories high.[14]
Introduction of Colonial Law in Kwawu
The implementation of a colonial legal system in Kwawu was anything but simple. In the Gold Coast Colony, the British government had recognized chiefly judicial power in the Native Jurisdiction Ordinance, 1883. This defined the legal relation between a select group of chiefs' customary courts, called 'Native Tribunals', and British courts. While most criminal matters, such as murder, robbery, serious theft or slave-trading, were dealt with in British courts, the Tribunals primarily adjudicated civil cases, as well as some criminal offenses - 'seduction', 'slander', 'fetishism' and 'witchcraft' - which were considered too remote from English [page 87] common law to try in British Courts.[15] The Ordinance also granted the Governor of the Gold Coast the right to dismiss a chief and made judgments of the Native Tribunals subject to appeal to British courts.[16]
Although Kwawu became a British protectorate in 1888, its territory remained outside British jurisdiction.[17] During the 1890s, when British colonial officials began to interfere with Kwawu's affairs at the request of the Basel missionaries stationed in Abetifi, colonial representatives became acutely aware that they lacked jurisdiction.[18] In 1896 the Executive Council of the Gold Coast sought to remedy the situation by making the Kwawu protectorate part of a new district within the Eastern Province, without consulting "Kwawu chiefs and commoners".[19] Kwawu's legal status remained uncertain until 1909, when the Governor finally brought Kwawu [page 88] under British jurisdiction by proclamation.[20]
The Native Jurisdiction Ordinance, 1883 was amended in 1910. The revised ordinance applied the provisions of the 1883 law to all divisions of the Colony, including Kwawu, strengthening Native Tribunals, which became "compulsory courts of first instance in matters not falling clearly under British law".[21] Under the amended ordinance, literate chiefs were required to keep and preserve records of their proceedings; illiterate “Head Chiefs” (paramount chiefs) should, at least, inform the District Commissioner of all decisions in land cases, which were to be recorded in a special book. Appeals from Native Tribunals were directed to the “superior Native Tribunal” of the “Head Chief”' (in Kwawu the {manhene of Kwawu in Abene) and from him to the District Commissioner's Court. Only with the consent of the District Commissioner's Court, or by an order of a higher court, could there be further appeal to the Divisional Court.[22] In Kwawu a District Commissioner's Court was established at the new headquarters of Mpraeso in 1914, after Kwawu became a separate administrative unit.[23] Although it was the responsibility of the District Commissioner to supervise Native Tribunals, Kwawu Asafo companies, consisting of the mmerante] ('commoners' or 'young men'), were quite efficient in regulating the conduct of the Native Tribunals, by correcting, for example, the severest forms of extortion and forcing chiefs to adjust their court fees and fines through the early 1930s.[24] So far, no written English records of the Kwawu Native Tribunals have been found from the first decade of the amended Native [page 89] Jurisdiction Ordinance. Recordkeeping only improved after passage of the Native Authority Ordinance, 1927 (NAO). Continuous records from at least two Native Tribunals in the towns of Abetifi and Pepease have survived.[25]
A system of more "interventionist indirect rule"[26] was formalized in the Gold Coast by the NAO. It is outside the scope of this paper to recount the controversy around this Ordinance; but it suffices to say that the NAO improved the position of paramount chiefs and their councils as the highest authority within each state. The councils received the right to decide what constituted customary law, subject to the Governor's approval.[27] The NAO specified punishments for criminal offenses, thereby strengthening the criminal jurisdiction of Native Tribunals.[28] The Ordinance upgraded the chiefs' Tribunals while protecting them from their political opponents by explicitly banning "barrister, solicitor, proctor or attorney" from appearing for any party in legal proceedings in Tribunals, thus bringing senior chiefs into "closer collaboration with the British Government in return for a definite increase in prestige and responsibility".[29]
An important figure in the operation of the restructured Native Authorities was the Tribunal Registrar, who acted as the principal clerk and legal advisor. Outside the coastal towns, as in Kwawu during the 1930s and 1940s, Registrars were often the [page 90] only literate people on Native Tribunals, playing a central role in interpreting and implementing the provisions of the NAO, as well as adopting and modifying local customary law.[30] Aware of the Tribunal Registrars' influence, the colonial government sought to circumscribe their position by introducing formal legal training in 1929. Annual training and refresher courses included a variety of subjects such as court procedure, the NAO, administration of stool treasuries, the principles of "Direct and Indirect Rule", police duties and prison managements. Registrars were also instructed in "Native History and Custom", English grammar, sanitation, agriculture, postal duties and "General Knowledge".[31] The first few courses were disappointing. In 1931, at the annual two-week training course in Cape Coast, only nine of twenty-nine participants passed. The final report concluded that the lectures were geared to secondary school leavers, while many participants had only a primary school background.[32]
The government encouraged the professionalization of Tribunal Registrars by organizing the 'educated officers' of Native Tribunals into the Tribunal Registrars' Association. According to its by-laws, the Association fostered "mutual aid and friendship" among its members, all Registrars, and helped to attract a "better class of scholars" to the Native Administration in order to assist the chiefs "as regards to better management and improvements of their States". The Association organized the training and refresher courses under the auspices of the Secretary of Native Affairs and the Provincial Commissioners. The by-laws characterized the Association as a "good link", enhancing cooperation between the colonial government and the "Native States". Therefore, the by-laws explicitly barred the Association and all its members from entering politics. Although the Association elected its own governing council, the government kept a close watch by making political officers ex-officio council [page 91] members. Moreover, the minutes of the governing council had to be forwarded to the Governor.[33] In promoting the position of Tribunal Registrar as a new profession for 'scholars', the government sought to remedy the Depression-induced increase in unemployment among school leavers, who were perceived as potential political trouble makers. Designing the scheme of the Tribunal Registrars' Association, the government also attempted to create an arena for 'educated women' to serve as unpaid officers at its social functions. Hence, the management and conduct of the Association should "always be in the hands of European and African Ladies and Gentlemen".[34] Considering the importance of the Tribunal Registrars within the newly organized Native Authorities, it is not surprising that the speakers' list for the "Grand Anniversary" of the Association in Cape Coast, April 1932, reads like a Who's Who of the political and educational establishment. Chaired by the Secretary of Native Affairs, senior political officers, secondary school principals, lawyers and local paramount chiefs addressed the participants. Leisure activities consisted of matches between Registrars from different regions competing in the colonial sports of tennis, football and cricket.[35]
Norms of Inheritance in Kwawu
According to the anthropological literature, the people of Kwawu, as those in other Akan areas of Ghana, practice matrilineal inheritance.[36] In 1927 government anthropologist R.S. Rattray worked for a few months in Kwawu. He requested a former Tribunal Registrar, Eugene Addow, to write a brief ethnographic account about the local people and their customs. It appears that Addow was familiar with Rattray's work on Asante and fitted his 'Notes on Kwahu' into Rattray's framework. Addow remarked that because Kwawu was founded by immigrants from Asante, "there is not much difference between the family system of the Kwahus and that of [page 92] their brethren the Ashanti, succession is through the female".[37] Addow explained:
The brother by the mother [w[fa] if surviving is the rightful person to succeed to one's personal property, if no brothers surviving then the eldest son of the eldest sister [uterine nephew], but much depends upon the personal character, morals and health of the successor, as everyone to succeed to property is usually elected and approved by the family [matrilineage, abusua], before one can take possession. Family property such as land, lake, portion of river, fetish are in the hands of the head of the family who hold the same in trust of the family.
Addow qualified the difference between personal property and stool or family (abusua) property:
A person who succeeds to property becomes the absolute owner of the personal property of the deceased but only a trustee of the family properties so inherited, and he cannot sell, pawn, pledge or lease such family property without the knowledge or consent of the members of the family.[38]
Addow listed examples when a person could deviate from this practice of inheritance. Somebody "aggrieved" by the "action or omission of some duties" by the potential [page 93] heir, or a person who wanted to recognize "a meritorious service rendered to him by any of his own children", was
at liberty during his life time or on his death bed to make a present to any of his own children of any part of portion of his personal property, and such presentation is to be witnessed by some members of the family and some other witnesses.
Addow, referring here to gifts inter vivos and nuncupative (oral) wills, stated that beneficiaries of such transactions were required to make an offering of "rum or palm-wine to the father as thanks for the present received". This offering, aseda, completed the contract, and - at least according to norms recorded by Addow - "no one had the right to take such present away".[39]
While these guidelines about inheritance practices focused on men, Addow also described a situation in which women could inherit property. When no suitable men of the matrilineage were available to succeed, "the senior female or her nominee" was entitled to inherit all property of the deceased, "both personal and family", and even a stool (office of chief or sub-chief). In the latter case, a woman was required to be past menopause, since a stool was held "sacred" and "a woman in her monthly period . . . unclean". Debts, according to Addow, were inherited along with other properties; the successor was "liable to pay all claims after one year". All those "claiming any money or other property from the successor" were expected to attend the funeral of the deceased and offer "sympathy rum" before announcing an outstanding debt to be proved by witnesses. Without following this procedure, it was "impossible" for the debtor "to make a formal claim". Properties could be distributed among several members of the abusua; the "head of the family and the elders both male and female" having the right to allocate shares to senior and junior heirs as appropriate.[40]
These customary practices, as summarized by Addow, were not the only normative framework about inheritance in Kwawu during the colonial period. First, the Marriage Ordinance, 1884 had brought a major legal innovation to the Gold Coast Colony. Persons who contracted a monogamous marriage under the Ordinance were no longer governed by customary law but became subject to the English common law of succession. If people under the Marriage Ordinance died intestate, they passed on their property according to 'English law', that is, exclusively to wife and children, [page 94] excluding any member of their abusua.[41] The Marriage Ordinance was most unpopular, not only because divorce became difficult and costly and subject to a British court but also because of the exclusion of the customary 'family' from inheritance. Therefore, very few couples entered such marriage contracts, causing disappointment among missionaries, who had hoped the Ordinance would strengthen Christian marriages.[42] The Ordinance was also severely criticized by Gold Coast lawyers for undermining local 'family' obligations. As a result of this broad opposition, the inheritance section of the Marriage Ordinance was amended in 1909, granting two-thirds of the deceased's estate, according to English law, to a man's wife and children, and one-third "in accordance with the provisions of the native customary law". In Kwawu, this meant a third went to the abusua (matrilineage).[43]
Second, and more important, the Basel Mission had initiated changes in inheritance practice in Kwawu. Since establishing a Christian community in Abetifi in the late nineteenth century, the Mission sought to introduce different rules of inheritance for their Christian converts, which strengthened claims of wife and children at the expense of those of the abusua.[44] The revised 1902 Gemeindeordnung, like the original one of 1865, stated that upon the death of congregation members their estates should be divided equally among all children and wives and not, as practiced by "heathens", among "distant relatives" or even "strangers". If there were no wives and children, the closest relatives should inherit; in such cases, the Gemeindeordnung recommended, poor people and Christian institutions should also be considered. As in the original Marriage Ordinance, the abusua was excluded and only referred to as "distant relatives". The revised version of 1902 explicitly drew a parallel between its inheritance regulation and 'English law', indicating that all Christian marriages should be contracted under the 1884 Marriage Ordinance, although this was more an [page 95] ideal than actual practice.[45]
After the expulsion of the Basel Mission and the reorganization of its congregations as the Presbyterian Church of the Gold Coast, the Gemeindeordnung was again revised in 1929, slightly changing the regulation on inheritance.
When a Christian member of our congregation dies intestate, the property should be divided into three equal parts; one part for the widow, one part for the children, and one for the family [abusua]. Christians are advised to remember this rule in the making of wills. If there are no widows nor children the next of kin inherit; but if there are no near relatives it is usual to remember the poor and Christian institutions.[46]
These Presbyterian Regulations now acknowledged claims by the abusua. Reference to English Law in the section on inheritance was no longer included. Rules on marriages had also been revised. Reflecting the unpopularity of the 1884 Marriage Ordinance, the Regulations distinguished between two types of marriages available to Christians: 'Marriage under Ordinance', which could only be legally performed by a minister "in a duly licensed building", and "marriage according with native customary law", blessed in any church building. Before a Christian ceremony could be performed for the latter, the parties had to profess to be married "in accordance with customary law", which, if possible, should have been witnessed by two presbyters (church elders).[47]
The revised rules of inheritance reflected the increased autonomy of the Presbyterian Church from the Basel Mission and (since 1918) the Scottish Mission in the organization of its internal affairs and the adjustment of its rules to the practices of its members.[48] Further, the Regulations should be read within the larger judicial climate of the Gold Coast, whose colonial courts tended to support the customary law claims of the matrilineage over those of the conjugal family. Roger Gocking (1990: 611ff.) has pointed out a "revival in traditional culture" among Gold Coast elites after [page 96] the turn of the century, as well as a new attitude towards the 'native order' developing in the colonial government during the 1920s, best represented in the policy of 'indirect rule'. During the 1930s, some state councils also took the initiative to modify inheritance custom along Christian lines by suggesting that a share of a man's estate should pass to wife and children if he died intestate. These recommendations and proposed by-laws, however, were never sanctioned by the Governor as required by the NAO.[49]
Justice N.A. Ollennu (1966: 247ff.) argued that the Presbyterian Church introduced its 1929 rules of inheritance without any statutory base, hence "plac[ing] its adherents above the law of the land". Ollennu cited a case in the paramount chief's Native Tribunal of Akyem Abuakwa of 1916, in which Christian children of the deceased, who had been married according to customary law, did not secure a third of their father's property from his successor - the w[fase (uterine nephew). Ollennu concluded that personal law was "not abrogated by change of religion"; therefore, Christian children were not entitled to one-third of their deceased's father's estate, and Basel Mission regulations did not change the law of succession in Akyem Abuakwa. Roger Gocking (1993: 106ff.), looking less at the abstract law than at changing legal practices, has analyzed the same case, contending that the Tribunal acted as an "important 'law modifier'". The Tribunal's judgment constituted an innovation in Akyem Abuakwa customary law by stipulating that the widow of a customary marriage receive one-third of the deceased's estate. Such debates about legal practice in colonial courts concerning succession disputes have rarely involved cases from Native Tribunals of Kwawu - courts less prominent, and less observed, than the highest Tribunal of Akyem Abuakwa, whose decisions were even published.[50] Nor have scholars examined how individual litigants chose where to settle disputes in succession matters and how they navigated between different systems of inheritance, while seeking to achieve their legal aims.
Negotiating Inheritance
The case, {kyeame Kwame Ansong v Kwaku Ansong, brought to the Abetifi Native [page 97] Tribunal in June of 1943, provides a rich opportunity to study the complex maneuverings of legal actors in a succession dispute.[51] These actors were embedded in and deeply committed to a web of relationships that encompassed notions of status, power, gender, kinship and religious affiliation. A close reading of this case allows a partial reconstruction of these larger contexts, providing views of the participants' movements in and outside the court while negotiating between conflicting systems of inheritance.
The Abetifi Native Tribunal that heard this case convened under the Ad[ntenhene of Kwawu (chief of Abetifi) and his mpanyinfo[ - a group of elders consisting of five sub-chiefs.[52] A crucial figure was the Tribunal Registrar, T. Dankwi. Although he was to take "no part" in the "actual trial of the case" and should "under no circumstances retire with the Chiefs and Councillors to consider their decision", he was still at the center of the court's operation. He not only kept records in English translation but also acted as legal advisor, reading and interpreting all written evidence, as well as informing the Tribunal about relevant provisions in the NAO.[53]
The proceedings of the Abetifi Native Tribunal in {kyeame Kwame Ansong v Kwaku Ansong closely followed an English model. First, {kyeame Ansong (plaintiff) presented his case, then his witness Robert Boateng gave evidence, followed by Kwaku Ansong (defendant) and his three witnesses, Kwasi Atuobi, Teacher Donkor and {panyin Okra. After each testimony the opposing party and the Tribunal had a chance to examine or cross-examine the witness. In the record, the Tribunal spoke as one body, since the individual members asking questions were not identified. The English notes of the proceedings lose much of the flavor and eloquence of the Twi language, such as proverbs and other rhetorical skills. The Registrar did not record [page 98] any introductory or closing formulae, which were (and are) common in Akan culture when addressing somebody of high status at the ahenfie (chiefly palace).[54]
This inheritance dispute (summarised in Figure 1) focused on whether a house in Christian Quarters of Abetifi, which the {kyeame (plaintiff) had built for his late mother, Akosua Okyeraa, twenty years previously (c. 1923), still belonged to him and his abusua (matrilineage) or whether the house had been bought by the {kyeame's brother, the late Akuamoa, who had subsequently passed it on to his children according to the inheritance rules of Christian Quarters. The answer to this question was crucial for solving the dispute, since ownership of the house determined the application of inheritance norms. While Kwawu people within the town of Abetifi practiced matrilineal inheritance favoring the abusua, a deceased Christian's estate was divided into three equal shares for wife, children and abusua. Moreover, if the deceased owned a house in Christian Quarters - the Christian settlement founded by the Basel Mission in the late nineteenth century - the house would pass on solely to his children and wife. In the present case, the {kyeame claimed ownership on behalf of his abusua. On the other side, the defendant, Kwaku Ansong, represented the interests of the late Akuamoa's children, as their w[fa (maternal uncle). Hence, Kwaku Ansong spoke for the matrilineage of Akuamoa's children, while also pleading for patrilineal succession.
Ownership of the disputed house rested on two opposite readings of a receipt that the {kyeame had issued to his brother Yao Charles. Did Yao Charles, on behalf of his abusua, present the {kyeame with £13 to help repay the {kyeame's debt, as the {kyeame argued? Or did Yao Charles give £13 to the {kyeame for Akuamoa - as Kwaku Ansong maintained - thus initiating Akuamoa's purchase of the house? The matter was complicated for the Tribunal because Yao Charles, who passed the money to the {kyeame and supposedly witnessed the sale of the house, had also died.
In the course of the proceedings, the two parties presented the Tribunal with a myriad of conflicting stories and recollections of how this case had evolved since the death of the {kyeame's mother about seven years before (c. 1936). These bits of narratives can be grouped into five sequential episodes comprising the entire case. A reading of these episodes reveals shifting perspectives and interpretations of the participants' actions. All the episodes involved people who either testified before the Tribunal, remained silent while acting behind the scenes, or had already been put to rest in their graves.
[page 99]|
Plaintiff's Abusua (Matrilineage)
Akwamuhene Kwabena Adofo (most senior member of plaintiff's abusua, sub-chief in Abetifi)
Akosua Okyeraa (plaintiff's mother, moved into disputed house c. 1923, died c. 1936)
Akosua Okyeraa's sons: {kyeame Kwame Ansong Kwasi Akuamoa Yao Charles Robert Boateng (claims house on behalf (allegedly purchased (handed crucial (successor to of his abusua) house c. 1937, died receipt of £13 to Yao Charles) plaintiff 1941, passed on the {kyeame, plaintiff's witness house to his children) died 1943) ____________________________________________
Kwame Nhyee (plaintiff's creditor of £30) _________________________________________________________________
Defendant and His Witnesses
Kwaku Ansong (brother-in-law of Kwasi Akuamoa, w[fa, maternal uncle, to Kwasi Akuamoa's children) defendant
Kwasi Atuobi (caretaker in the disputed house) defendant's first witness
Teacher Donkor (retired Presbyterian teacher and presbyter) defendant's second witness
{panyin Joseph Okra (senior Presbyter) defendant's third witness ____________________________________________
Carpenter Dorku (Kwaku Ansong and Akuamoa's friend, accompanied them during the alleged house sale) |
Figure 1 Participants in {kyeame Kwame Ansong v. Kwaku Ansong
The first episode took place immediately after the {kyeame's mother, Akosua Okyeraa, had died (c. 1936). The house she occupied in Christian Quarters, built by the {kyeame with a loan, was vacant. Since the {kyeame urgently needed to repay the loan, he decided to sell the house. This caused much protest among his brothers. They all met in the late mother's house and tried to convince the {kyeame to change his plan, to no avail. In order to keep the peace among the brothers, they were [page 100] called, as the {kyeame's witness, Robert Boateng, testified, by the most senior member of their abusua (matrilineage), Akwamuhene Adofo, to gather for mediation at his house in the center of Abetifi.[55] According to Richard Boateng, the {kyeame stated that he still owed £30 to Kwame Nhee and this creditor ”was pressing hard”. In two sessions, the Akwamuhene negotiated a compromise that the brothers should assist the {kyeame “with any amount possible” in paying the debt on the house.[56] Brother Yao Charles volunteered to pay £13, for which the {kyeame issued a receipt. This document, presented to the Tribunal, became the major evidence in this case. The “part payment” on the “house account” by Yao Charles, as recorded on the receipt, altered the ownership of the disputed house according to the {kyeame and his witness, Robert Boateng.[57] They explained to the Tribunal that, according to “custom”, the house no longer belonged to the {kyeame but had become property of his whole abusua, because Yao Charles, on behalf of his brothers, had contributed to repay the debt. Finally the brothers also decided that, since brother Akuamoa needed a place to live, he and his wife should move into the empty house. This first episode shows how the record of this case provides insight into processes of arbitration within a matrilineage - beyond the courtroom. It appears that a case only reached the Abetifi Tribunal after other institutions of dispute settlement had failed. No records were kept of proceedings at these local sites of arbitration.[58]
The second episode demands a shift in perspective. It features the tailor Kwaku Ansong (defendant) who recalled for the Tribunal the time after the brothers reached a compromise about their mother's house (c. 1936). Kwaku Ansong narrated how Akuamoa not only moved into the mother's house but subsequently bought it. Since Kwaku Ansong's sister was married to Akuamoa, Kwaku Ansong accompanied his [page 101] brother-in-law during the initial negotiations. They went, accompanied by carpenter Doku, to visit the {kyeame, who then agreed to sell the house for £20. After these negotiations, Akuamoa left for Kwawu Tafo where he was staying; like many Kwawu people, he had a second residence while working outside his hometown.[59] Not much time elapsed before Kwaku Ansong travelled to Nteso, a town outside Kwawu Tafo, for a funeral. There he met again with Akuamoa and Yao Charles, the {kyeame's brother. Kwaku Ansong recalled that during the funeral celebrations Akuamoa handed Yao Charles £13 to take to the {kyeame as “part-payment” for the house. Later, Kwaku Ansong heard from Kwasi Akuamoa that he had paid the remaining balance of £7 to the {kyeame (c. 1937). Since Akuamoa remained in Tafo, Kwaku Ansong arranged for a caretaker, Atuobi, to live in the house at Christian Quarters with his wife. As an indication that the {kyeame was no longer interested in the house, Kwaku Ansong maintained that the {kyeame never came to look after the house; even a wall collapsed, and had to be repaired, without the {kyeame's knowledge. At times Akuamoa returned to Abetifi and received guests in the house. The leadership of Christian Quarters also considered Akuamoa owner of the house. Two presbyters (church elders) testified for Kwaku Ansong. Teacher Donkor recalled that when he returned as pensioner to Abetifi in 1937, he went to greet Akuamoa and Yao Charles and learned from them about Akuamoa's house purchase at Christian Quarters. Even the senior presbyter, {panyin Okra, declared with authority that Akuamoa and Yao Charles had visited the church leaders and "made it known to the Presbyters . . . that [Akuamoa] bought the house in question from plaintiff [the {kyeame]".[60] Akuamoa died around 1941.
The content of this second episode was disputed by the {kyeame before the Tribunal. He denied any recollection of the visit by Kwaku Ansong and Akuamoa concerning purchase of the house. In addition, the {kyeame closely questioned Kwaku Ansong, who had to admit he was not present when the balance of £7 was paid, and had no receipt for this final payment. Further, the {kyeame cross-examined Kwaku Ansong's witnesses about this episode. Caretaker Atuobi, Teacher Donkor and panyin Okra all had to agree that they "did not see or witness the sale" of the house.[61] This episode reflects mobility, work and social networks of the participants. Many of them lived in spaces that reached far beyond Abetifi. They worked and acquired their wealth outside their hometown - through cocoa, trading or salaried [page 102] employment - which enabled some to build cement houses in Abetifi. Caretakers, often junior family members, lived in these houses. These migrants regularly visited Abetifi and maintained contacts; most of them eventually returned to retire, die, or be buried.
The third episode brought all actors to Abetifi for Akuamoa's funeral in 1941. After the final rites were performed, they met at Christian Quarters to divide Akuamoa's belongings. Teacher Donkor, as witness for Kwaku Ansong, explained to the Tribunal how Akuamoa's properties were shared among “children and family” according to Presbyterian “customs and regulations”.[62] Here Donkor referred to the 1929 Presbyterian regulations, which divided properties of a deceased Christians equally among wife, children and abusua.[63] But there were different rules concerning the house in Christian Quarters of Abetifi. Teacher Donkor recalled how senior presbyter {panyin Okra, the dominant figure of these deliberations, contended "that the house of any deceased according to church regulations is for the children and therefore not shared [my emphasis]".[64] This was a crucial distinction, reflecting the understanding of the Basel Mission that buildings in Christian Quarters, on land purchased by the Mission for its converts in 1876, could only be occupied by Christians, and inheritance, therefore, should follow exclusively patrilineal lines.[65] {panyin Okra himself remembered that he declared the house was not part of Akuamoa's shared property but should go "according to our regulations . . . to wife and children [my emphasis]". {panyin Okra's recollection has additional significance, since this was the only time that Akuamoa's wife was explicitly [page 103] mentioned in the record as inheriting along with her children. Although Kwaku Ansong represented Akuamoa's children as w[fa in this dispute, it remains unclear to what extent he also claimed ownership for his sister, Akuamoa's widow.[66]
After {panyin Okra's announcement, a heated debate erupted. The {kyeame protested and maintained that the house did not belong to his late brother Akuamoa. He recalled the history of the house, built by him for his mother and now a possession of his abusua, since his brothers had agreed to help repay the debt. Kwaku Ansong and Teacher Donkor rejected the {kyeame's version and confirmed that Akuamoa had purchased the house. At this point, according to Kwaku Ansong, Yao Charles also affirmed Akuamoa's purchase and noted the custom "that a family debt is not paid by one [member only] and that Akuamoa paid the amount on purchase of the house".[67] When the {kyeame demanded to see a receipt for this transaction, Charles told the assembly - according to Kwaku Ansong - that all receipts were at Tafo, and he would get them next time he travelled there. Kwaku Ansong further observed that Akwamuhene Adofo - senior member of the {kyeame's abusua - and many other “family members” were present during this debate. Since they did not speak up on the {kyeame's behalf, it appears that Kwaku Ansong considered their silence implicit approval of the “custom” that a debt within an abusua should be shared by more than one member.
Under cross-examination by the Tribunal, the {kyeame again denied the existence of such a custom concerning debt payment. Further, the {kyeame's brother and witness, Robert Boateng, explained that he did not speak up for his brother, since he was too young, and not the chosen abusua successor of the late Akuamoa.[68] After this eventful meeting, the children and wife of the late Akuamoa continued living in the disputed house. This episode contains the central moment of the case, when the different claims of ownership collided at the end of Akuamoa's funeral, bringing together at one site different and competing notions of inheritance arguably applicable to the house. It reveals the tensions concerning inheritance practices in Abetifi during the early 1940s. Despite normative statements by the participants, succession arrangements were not clear but had to be negotiated and re-asserted within specific [page 104] circumstances, reflecting claims and backgrounds of the litigants. The one person who could have answered many open questions was no longer available. Yao Charles had died eighteen months later.
The fourth episode focused on negotiations after Yao Charles's death in 1943, first following his funeral and then at a meeting before the presbyters. When Yao Charles's belongings were divided, all actors gathered again in Christian Quarters. The {kyeame took the opportunity to re-assert his abusua's claim of ownership. He was, however, interrupted by {panyin Okra, the senior presbyter. Okra told him that because they were now sharing Yao Charles's estate he would not permit the {kyeame to raise this issue. Instead, the {kyeame was invited to present his case to the minister and presbyters. Teacher Donkor, Kwaku Ansong's witness, recalled that he, as the literate teacher, was chosen to open and inspect Yao Charles's box. While destroying all documents of “no value”, he suddenly found the document relating to the house. Akwamuhene Adofo, representing the {kyeame's abusua, immediately called for a public reading of the paper. Donkor identified the {kyeame's signature, which had been witnessed by the former Registrar Akyea,[69] and read the English document: "I have received £13 from Charles Koranteng [Yao Charles] being part payment of my house account [my emphasis]."[70] {panyin Okra, recognizing the importance of this document, asked that it be given to him for safe-keeping. Akwamuhene Adofo, as the {kyeame recalled, opposed this request, contending the paper belonged to Robert Boateng, recently chosen as Yao Charles's successor. Teacher Donkor complied, and the precious document ended up with the {kyeame's younger brother, Robert Boateng. Donkor informed the Tribunal that he considered the paper as "clear proof of the purchase of the house". Under cross-examination, Donkor verified that the receipt, presented by the {kyeame to the Tribunal and marked 'Exhibit A', was the duplicate of the document found in Yao Charles's box. The original receipt was handed to the Tribunal as 'Exhibit C' by Boateng, when testifying on behalf of the {kyeame.[71]
Three days later, the {kyeame appeared before the Abetifi minister and presbyters. [page 105] While he hoped to find support for his claim, he was simply told that the presbyters had nothing to add since Akuamoa had bought the disputed house. {panyin Okra, as senior presbyter, offered the {kyeame the option of returning with Akwamuhene Adofo. At this point, the record again reveals local forms of dispute management. {panyin Okra suggested that the {kyeame appear before the presbyters with the support of the most senior member of his abusua, Akwamuhene Adofo, so he would be better represented. Adofo, who frequently sat on the Tribunal, was well versed in legal matters, and it appears that he was the influential figure behind the {kyeame's case.[72] In this meeting the two most powerful elders of both parties convened to make a final attempt to settle the dispute out of court. The record does not tell much about the negotiations before the presbyters. Recalling the incident, {panyin Okra only told the Tribunal that the Akwamuhene and the {kyeame were informed that because “Charles had borne witness” of the house sale, they had no other choice, according to the regulations of Christian Quarters, than "asking the wife and children [of the late Akuamoa] to take it".[73] In this episode the crucial evidence, the receipt of £13, finally re-surfaced. Both parties, aware of its legal power, had sought to appropriate this document. Since the receipt was phrased in rather ambiguous language, it allowed opposite readings. Teacher Donkor, Kwaku Ansong and the presbyters understood “part payment of my house account” as the beginning of the transfer of ownership from the {kyeame, through Yao Charles, to Akuamoa. The {kyeame, however, maintained that the “house account” referred to the outstanding loan, and “part payment” was only a first installment from his brothers assisting in debt repayment, thereby making the house abusua property. Thus, each side considered the receipt as vital evidence. Separately from claims about the meanings of the receipt, ownership, indeed inheritance, of the document itself was contested. Only upon the Akwamuhene's intervention was the paper declared abusua property, passing down matrilineally to Yao Charles' successor, Robert Boateng.
[page 106]
The fifth episode took the two principal litigants to the District Commissioner, leading to one day of proceedings at the Abetifi Tribunal on June 14, 1943 and finally to a judgment. Having been rejected by the presbyters, the {kyeame went to the District Commissioner of Kwawu at Mpraeso and swore an affidavit that his abusua owned the disputed house in Christian Quarters, a copy of which he presented to the Tribunal. Again the Registrar was very careful in handling this written evidence. Following his instructions closely, he recorded: "Affidavit tendered in evidence read and interpreted into Twi by Registrar and accepted, marked 'Exhibit B'."[74] Another copy of the affidavit was sent to Kwaku Ansong who, in turn, swore his own affidavit before the District Commissioner. Then the {kyeame requested the Tribunal to issue summons calling Kwaku Ansong to prove ownership on behalf of the late Akuamoa's children. Summing up his testimony before the Tribunal, Kwaku Ansong gave copies of both affidavits to the Tribunal, also “tendered in evidence”, accepted and marked by the Registrar as exhibits 'D' and 'E'.[75]
In its judgment, the Tribunal decided for the {kyeame and awarded him the costs of the case against Kwaku Ansong.[76] The Tribunal maintained that "[it] had taken pains to listen to both parties and their witnesses and found that there had been no substantial proof by the defendant [Kwaku Ansong] to make or convince the Tribunal as to the purchase of the house in question by the late Akuamoa". Central to the Tribunal's argument was the failure by Kwaku Ansong and his witnesses to show or present as evidence “the written document” prepared when Akuamoa acquired the house from the {kyeame. The Tribunal referred here to the absence of witnesses and lack of documentation for payment of the final balance of £7. Concerning the crucial receipt about the transfer of £13 from Yao Charles to the {kyeame - which both sides agreed was crucial - the Tribunal followed the narrower reading, suggested by the {kyeame, that it referred only to a transaction of £13 "by one Yao Charles to plaintiff [the {kyeame] as part payment of certain house account". Thus, for the Tribunal, the receipt was no proof of the house purchase by Akuamoa, as Kwaku Ansong and his witnesses contended.[77] In this last episode, the two parties sought support in their claims outside Abetifi by swearing affidavits before the District Commissioners of Kwawu. The exact contents of these affidavits, which might have [page 107] been quite detailed, were not incorporated into the record of this case. It would be interesting to know whether the {kyeame and Kwaku Ansong sought help from literate legal experts - such as the local Registrar, or a clerk at the District Commissioner's office - before swearing their affidavits in Mpraeso. Both carefully prepared this step, which involved a fee, in their long struggle to claim ownership of the disputed house.
Discussion
Examining the five episodes of the case, {kyeame Kwame Ansong v Kwaku Ansong, we have seen the importance of arbitration outside the courtroom. Although the content of these meetings is only partially disclosed in the Tribunal record, the leading mediators can be identified: Akwamuhene Adofo and {panyin Okra. They acted as “centerpeople”, Adofo working for the interests of the {kyeame's abusua and Okra, the senior presbyter, negotiating for the late Akuamoa's children, who were represented by Kwaku Ansong in court. Centerpeople, as Karen Sacks has argued in quite a different context, distinguish themselves by forming “interpersonal networks” with similar values, based on shared kinship or work experience, taking initiatives and mediating conflict.[78] Akwamuhene Adofo and {panyin Okra, as centerpeople, were not only crucial before the dispute reached the Tribunal but also played an important role during the proceedings. While {panyin Okra testified in court as Kwaku Ansong's third witness, Adofo was not recorded speaking as a witness, nor did he take his customary seat as Akwamuhene on the bench. Still, Adofo was very much present at the Tribunal. His name was frequently evoked, and his actions, prior to the proceedings, were described in detail by several witnesses. Thus, he probably was not far from the courtroom on the day the Tribunal heard this case.
In some ways these two mpanyinfo[ (elders), centerpeople within their communities, stood at opposite ends of the dispute. Adofo, a trader and cocoa farmer with close ties to the ahenfie (chief's palace), represented and defended matrilineal inheritance against innovations, such as moves towards patrilineality, practiced in Christian Quarters.[79] Further, the Akwamuhene, as occupant of a senior stool in Abetifi, stood for 'tradition', chiefly office and religious practices, which were still shunned by [page 108] members of the Presbyterian Church in the 1940s.[80] {panyin Okra, on the other hand, had been the senior presbyter for almost thirty years. He was a towering figure in Abetifi, considered an embodiment of the local Presbyterian Church and its separate settlement.[81] He argued for Presbyterian forms of inheritance and for the specific rules concerning Christian-owned houses in the Christian Quarters. Okra was no stranger to the Tribunal, since he was frequently called to testify in matters regarding Presbyterian rules.
There was also common ground between these two centerpeople. Both were highly respected within their communities and acted as mpanyinfo[ with similar authority and status, although in quite different settings. They worked as brokers in establishing a consensus without, however, abandoning their legal principles, thus taking a position of moderate partisanship.[82] Akwamuhene Adofo was more successful. Not only did his party convince the Tribunal to adopt their reading of the receipt, but Adofo, operating from behind the scenes, seems to have had a certain [page 109] influence on the outcome of the case. Adofo and the {kyeame, in his role as spokesperson for the Abetifi chief, had an additional advantage, since both were obviously close to the Ad[ntenhene, the president of the Tribunal.[83]
Although the disputed house was originally inhabited by the {kyeame's late mother Akosua Okyeraa, women remained remarkably absent in this case. Only once was a woman mentioned as an individual actor, when the {kyeame stated that the late Akuamoa's wife, “defendant's sister”, continued living in the house after her husband's death. The record never refers to her again. Rather, Kwaku Ansong only argued for ownership on behalf of her children. Not all inheritance cases at the Abetifi Native Tribunal were exclusively dominated by men. There are instances where women, as “jural adults”, took legal action on their own.[84]
Nevertheless, in this case all participants acted as gendered litigants, embodying certain notions of masculinity and (among those not mentioned) femininity. Although the location of this case, the ahenfie (chief's palace) of Abetifi, was mainly a male space, women were not excluded, even if the Ad[ntenhene and most his sub-chiefs were men.[85] The two social settings represented in this dispute, the town of Abetifi and Christian Quarters, had different notions of gender. While women could serve in high offices at the ahenfie, the Presbyterian Church excluded them from the ranks of ministers and presbyters. In Akan marriages, practiced in Abetifi, wives were first members of their abusua, often remained quite independent from their husbands, and had duolocal residence; in Christian marriages, wives were supposed to subordinate [page 110] themselves to their husbands, and spouses were expected to share a house.[86] The Basel Mission and the Presbyterian Church had altered the existing gender system by creating different educational programs for their male and female converts, training women in domestic skills as future mothers and wives, while preparing men for new positions in the colonial society as clerks, teachers and ministers.[87] Such conflicting notions of gender were also reflected in inheritance disputes. The Church sought to strengthen the patrilineal conjugal family, which embodied different spaces, responsibilities and expectations for men and women, while the {kyeame, supported by the Akwamuhene, sought to protect the interests of the abusua.[88]
Reading the records of the Abetifi Native Tribunal, one immediately recognizes the English model concerning the order of testimony, as well as the arrangement of questions and answers during cross-examination. Moreover, these English notes of the Twi proceedings not only lose the linguistic richness of the participants' testimony, but also completely ignore individual performance and non-verbal expressions at the ahenfie. Litigants, addressing the Tribunal, were expected to act and speak according to their status in relation to the Tribunal president. For example, men had to lower their cloth, and remove their sandals. There was a remarkable continuity of some customary practices in the Christian Quarters in spite of innovations concerning social relations and rules of inheritance. Eugene Addow (n.d.: 10ff.) reported that it was Kwawu custom to express a claim about a deceased person's property - an outstanding debt or ownership of a house - when the deceased's estate was divided at a meeting after the principal funeral rites had been performed. The case shows that this 'custom' was practiced not only in Abetifi and the rest of Kwawu but also within the Christian Quarters. All witnesses described how the {kyeame, albeit unsuccessfully, publicly announced his abusua's claim of ownership to his late mother's house after Akuamoa's and Yao Charles's funeral.
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Furthermore, senior members of an abusua represented younger ones who needed legal support. The Akwamuhene Adofo acted as arbitrator in the dispute between the {kyeame and his brothers, and as advisor to the {kyeame during the second meeting at the presbyters and in the proceedings before the Tribunal. Although Christian inheritance rules promoted patrilineal succession, it is striking that representation of litigants followed the same matrilineal principles as among non-Christians of Abetifi. When the children of the late Akuamoa had to convince the Tribunal that they owned the disputed house, they chose their w[fa (maternal uncle), Kwaku Ansong, to speak on their behalf rather than a member of their late father's family. Therefore, although the late Akuamoa's children supposedly inherited a house through the patrilineal line, their abusua, represented in the proceedings by Kwaku Ansong, considered it its interest and responsibility to champion the claim of the late Akuamoa's children in court.
In adjudicating ownership of a house, the Tribunal also determined the form of inheritance. Justice N.A. Ollennu's (1966: 147ff.) argument that there was no statutory basis for separate inheritance rules among Presbyterians was obviously not relevant for this case. Rather, the Abetifi Native Tribunal not only acknowledged the practice of dividing property of deceased Christians equally among wife, children and abusua but also accepted the more rigid rules of Christian Quarters, which reserved the house of a deceased member exclusively for the children.[89] Evidence from other cases indicates that the Presbyterian inheritance rules were not questioned but upheld by the Tribunal.[90] The Basel Mission's fear in 1917 about losing control over its Christian settlements because it could no longer enforce its own regulations, did not materialize, at least in Abetifi.[91]
[page 112]
A close reading of the case has clearly shown the importance of written documents in the Native Tribunal of Abetifi during the early 1940s. The {kyeame and Kwaku Ansong sought support from the District Commissioner of Kwawu by obtaining a sworn affidavit to strengthen their claims concerning ownership of the house. In their presentation of the dispute, the two litigants relied on the power of written documents to achieve their goals. Both the {kyeame and Kwaku Ansong built their arguments around the same document. The {kyeame considered the receipt of £13 by Yao Charles, on behalf of the abusua, as “part payment” for the outstanding debt on the house. Kwaku Ansong, less successfully, presented this document as evidence of the sale of the house to Akuamoa. In its judgment, the Tribunal also underlined the relevance of documents first by noting the absence of any written receipt to prove the sale of the house by Akuamoa and then, by framing its decision as a reading of the crucial receipt, following the interpretation proposed by the {kyeame. This reliance on documents was an innovation in the proceedings at the Abetifi Native Tribunal during the early 1940s. Only a decade earlier, hardly any written evidence was presented and recorded in the proceedings of the same Tribunal.[92]
The changes brought by written documents had additional consequences. They affected the mechanics of the Tribunal. While most cases recorded in the late 1920s and early 1930s began with the swearing of the local chief's oath, the practice of issuing a written summons, as in this case, started to replace these local oaths during the 1940s.[93] Furthermore, the increased importance of documents upgraded the position of the Tribunal Registrar. While paying little attention to recording elaborate courtly behavior in his notes, the Registrar carefully kept track of all documents submitted to the Tribunal, listing them as individual pieces of evidence, marked as exhibits 'A' to 'E'.[94] As administrator of this new evidence, he was often the only [page 113] person, at least in more remote places, who could write, read and interpret documents to the court. Colonial observers, aware of this crucial role, deplored abuses by Tribunal Registrars and other scribes offering their services to litigants.[95]
The introduction of written documents into the oral proceedings of the Abetifi Native Tribunal was a dynamic process. The oral practices of the court strongly affected the reception of this new evidence. Most legal documents, such as receipts or affidavits, were written in English. To be understood, therefore, they needed oral commentary and exegesis. It was up to the Registrar to read them aloud and, in most instances, translate them into Twi. When the Registrar carried out this task, he not only made the written documents accessible to the non-literate Tribunal members and litigants but also subjected them to the modes of an oral performance. Needless to say, his choice of words and form of presentation either strengthened or reduced the document's significance and credibility, thus influencing its impact on the outcome of the case. Therefore, the incorporation of English legal literacy within the proceedings of the Native Tribunal was mediated by oralizing the written word. And, to borrow Isabel Hofmeyr's metaphor, "[b]y bathing documents in the stream of orality", the actors in the Tribunal also "subordinated them to the prevailing practices and procedures of an oral world".[96]
The increased use of documents in Native Tribunal proceedings also reflected new options of combining orality and literacy. For example, documents provided means to preserve wishes beyond one's lifetime. As Eugen Addow pointed out, nuncupative (oral) wills - deathbed instructions before witnesses to be respected by the abusua - were a common practice in Kwawu.[97] During the 1940s and 1950s, colonial [page 114] administrators and African legal scholars sought to “improve” such local oral practices. Although one colonial expert, A.J. Loveridge, considered public oral wills less contested than secret English written wills, he urged “development” of the custom of nuncupative wills. Loveridge (1950: 28) proposed that a written transcript of customary wills should be made "as a useful permanent record of the occurrence". It appears that only wealthy traders or literate teachers and clerks either left written wills or had their oral instructions confirmed by a written document.[98] When such wills were challenged, legal action usually was taken to a higher court. The civil jurisdiction of a “Divisional Chief's” Tribunal, like the one in Abetifi, was limited, according to NAO, to suits relating to succession "to property of any deceased native" whose value did not exceed £200.[99] Inheritance disputes, like {kyeame Kwame Ansong v Kwaku Ansong, in which a house was supposedly sold for £20, were closer to the scale of cases heard by the Abetifi Native Tribunal.
The 'trail of paper' and the mediations, arguments and interpretations that revolved around the receipt reveal the multidimensional complexities of inheritance arrangements in Kwawu. These arrangements were not static but fluid and were negotiated in each case, reflecting individual and collective interest, status, gender, age, occupation and religious affiliation, as well as the evolving interpersonal networks of the participants. In such inheritance disputes, litigants were navigating between competing notions of inheritance and succession yet also pursuing interest and opportunity, thereby creating for themselves new spaces in the intricacies of these conflicting rules and customs.
[page 115]
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2Kwawu Traditional Council at Mpraeso (hereafter KTC), vol. 4: 190-210, Native [page 82] Tribunal of the Ad[ntenhene, Abetifi, {kyeame Kwame Ansong v Kwaku Ansong, June 14, 1943 (hereafter {kyeame Kwame Ansong v Kwaku Ansong). I am very thankful to Daasebr] Akuamoa Boateng II, {manhene of Kwawu, and Mr. E.A. Apeadu, Registrar of Kwawu Traditional Council, for providing me access to these customary court records.