Cases referred to:
(1) Mensah v. Ghana Commercial Bank (1958)
(2) Abakam Effiana Family v. Mbibado Effiana Family  G.L.R. 362, C.A.
(3) Bruce v. Quarnor  G.L.R. 292.
(4) Public Lands (Leasehold) Ordinance, In re; Osu Mantse (Claimants)  G.L.R. 163.
(5) Summey v. Yohuno  1 G.L.R. 160, S.C.
(6) Okantey v. Kwaddey  G.L.R. 241, C.A.
(7) Akwei v. Awuletey  G.L.R. 231, S.C.
(8) Seraphim v. Amua-Sekyi  1 G.L.R. 328.
(9) Donkor v. Danso  G.L.R. 147.
(10) Ashiemoa v. Bani  G.L.R. 130.
ACTION for a declaration of title to or right of occupation to a piece of land granted by the Osu Mankralo stool. The facts are fully set out in the judgment.
EDWARD WIREDU J. this the second trial of this case in this court. The first trial ended around the middle of 1963 and an appeal to the Court of appeal was allowed and re-trial de novo ordered.
The dispute is about a piece of building plot at Osu in the Osu Ashanti Blohum Quarter, the property of the Osu Mankralo stool. The plaintiff on the undisputed facts is a subject of the said tool. At land having constructed a building on it. This building on the  facts which I accept, was constructed at a time when the defendant's appeal again the first judgment of this court had been struck out for want of prosecution when he failed to turn up when the appeal was called for hearing. The facts further show that later the appeal was re-listed and the present trial is the result of the order of that appeal.
The defendant also claims to be a subject of the Osu Mankralo stool. Even though issue was joined on this claim by the defendant I have refrained form making and finding on its as the its determination one way or other will, in my view, not help in resolving the real controversy between the parties. The co-defendant on the facts which I accept, is the Osu Mankralo and will be treated as such in the course of this judgment.
Both the plaintiff and the defendant claim title or better still their right to occupation to the disputed land through the Osu Mankralo stool. But whilst the evidence brought by and on behalf of the plaintiff shows that his claim is through a grant made to him by his second witness, one Nii Nortey Yeboah as acting mankralo and some of the elders of the stool, the defendant's claim is through the mankralo himself (i.e the co-defendant ) and some of his elders.
We shall therefore examine in detail the evidence brought in support of the parties to find out whose claim is to be upheld by the court. In resolving this issue I must not be taken to be unmindful of the burden which rests on a plaintiff for a declaration of title to rely on the strength of his own case and not on any weakness in the defendant's case.
The plaintiff's evidence, which was supported by his first witness, a Mr. Tagoe, who on the available facts owns lands abutting the disputed land, show that prior to obtaining the grant on which his claim is founded, he was faming a on a piece of land part of which is not in dispute and was in such occupation when the area was later carved out in building plots as a result of a lay-out carried out in the area. Mr. Tagoe himself testified that his own portion of the land on which he has built was part of the land the plaintiff was farming. The plaintiff testified that when the area was carve out into building plots, he obtained a grant of the disputed area from the Osu Mankralo stool, at the time represented by Nii Nortey Yeboah as acting mankralo and the elders of the stool. This grant according to the plaintiff was a gift from the stool. He testified that after the grant he erected corner pillars at the four ends of the plot and tendered exhibit A, a deed of gift, as the conveyance from the stool to him. Nii Nortey Yeboah testified as the second witness for the plaintiff. He confirmed the grant to the plaintiff and the execution of exhibit A in his favour. His evidence  shows that the Gyasetse and the Gyse people installed him as acting Mankralo when the co-defendant was customarily destooled and has since that time been performing the customary functions of the Mankralo. He testified that in the capacity he has been granting stool lands to persons who come to see him and the elders of the stool. He claims to have the custody of the stool and has been performing all customary rites pertaining to the stool. Witness admitted that at the time he was acting, destoolment charges were then pending in the Ga State Council against the co-defendant. He admitted also that the charges were preferred by the Gyasetse but denied that the case has been determined against the Gyasetse. He also denied having supported the Gyasetse in the litigation and maintained that as acting mankralo his role was neutral. Mr. Tagoe, the fist witness for the plaintiff.
The events which seem to have sparked off the present action are that in the course of making preparations to build on the land by the plaintiff some time in 1961, the defendant, who was then accompanied by a policemen and who described himself as a minister of state met the plaintiff on the land and threatened to have him detained if he did not leave the land alone. The plaintiff therefore resolved to seek a redress in the law court for the relief's set out in his writ of summons.
The case for the defendant is that of the disputed land is part of two plots of land granted to him by the co-defendant and his elders customarily, some time in 1956. his testimony shows that the land granted him measured 150 feet by 100 feet and that is was originally meant for his father but the actual grant was made to him when his father asked him to go and see the co-defendant for a piece of land. He testified that he paid a customary fee of 32 shillings and two bottles schnapps as drink. He said he appointed one Walakata, an elder of the stool described as asafoatse. As his caretaker of the land because he did not at that time have an immediate intention to build on the land. He testified that apart from engaging Walakata as caretaker he did nothing on the land. He said Walakata lived near the disputed land at that time. He said some time between 1959 and 1960 he saw the plaintiff of told him the land belonged to him. He said he reported the plaintiff' presence on the land to Walakata. In 1961, continues the defendant, he saw that cement blocks were being made on the disputed land and suspecting the plaintiff to be responsible  he sent for his and warned him to leave the land alone and later reported this to the co-defendant. He denied having threatened the plaintiff with detention.
The defendant himself did not call any witness, as his obvious witness his grantor, had opted to join as the co-defendant. The co-defendant testified that the disputed land was granted to the defendant by him and his elders. He testified that the land was requested for by the defendant's father on behalf of the defendant. He said the defendant's father paid a customary fee of 32 shillings and a bottle of whisky. He said after the grant the defendant's father paid an amount of £ 10.10s. for the land. He testified that he was among those who want and measured the land for the defendant. Next to testify was a Mr. Hammond, who can safely be described as a witness for the defendant and co-defendant. This witness is described as a private or personal secretary of the co-defendant. He said he was present when the defendant's father came to see the co-defendant and requested for a land for the defendant. He testified that he was present when the defendant's father paid an amount of 32 shillings and a bottle of whisky. Witness testified that he was among those who went and showed the land to the defendant who later paid an amount of £ 10.10s. for the land. The witness also said he was present when the defendant came to report the plaintiff's trespass to the disputed land.
The plaintiff's grant has been strongly criticised and rightly in my view by learned counsel for the defendant who argued that sine the land in dispute is on the undisputed facts the property of the Osu Mankralo stool, the co-defendant as the occupant of the stool being the only indispensable person competent to make grants of the Osu Mankralo stool lands with the elders of that stool, want of his participation in the grant to the plaintiff rendered farming rites or occupation by the plaintiff, assuming it was accepted, ceased in view of the subsequent assumption of control by the stool in caring out the area into building plots which change the nature of the use of the land. For authority learned counsel cited the case of Mensah v. Ghana Commercial Bank (1985) 3 W.A.L.R. 123 and Abakam Effiana Family v. Mbibado Effiana Family 1956 G.L.R. 362 at p. 363, C.A.
For the plaintiff, it was contended that the evidence of the alleged grant to the defendant was riddled with such serious material conflicts that the evidence brought in support of the should be rejected. Counsel argued that the facts proved in this case show that the was a rift between the co-defendant and the Gyasetse whereby the co-defendant was declared customarily destooled.  Continuing, counsel augured that the evidence shows that the administration of the Osu Ashanti blohum State continued with nii Nortey Yeboah as acting mankralo. He therefore argue that the plaintiff approached the stool in good faith for a grant and exhibit A and the evidence brought in support showed that a grant was actually made to him. He dismissed as untenable the argument that a subject in occupation of land could be deprived of his land by the stool without his consent. Learned counsel referred to the case of Bruce v. Quarnor (1956) G.L.R. 292 and Osu Mantse (Claimants), In re Public Lands (Leasehold) Ordinance  G.L.R. 163.
Learned counsel finally sought refuge under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) and submitted that the plaintiff's conduct in dealing with the disputed land had been in good faith and should be protected as such.
This case raised for consideration the following issues:
On issue (a) there is no dispute that the plaintiff's grant which ( I accept was made to him) was by Nii Nortey Yeboah as acting Mankralo and the elders of Osu Mankralo stool named in exhibit A. it is also not disputed that the Gyasetse at the time of the grant had declared the co-defendant destooled. It is further not disputed that at that time or some time later after this declaration, destoolment charges preferred by the Gyasetse against the co-defendant were brought before the Ga State Council and were pending for determination. Had evidence been brought on behalf of the plaintiff supporting a proper customary destoolment of the co-defendant, that irrespective of the statutory provisions from destooling a chief, I would have felt inclined to uphold the plaintiffs grant since granting of land id purely one of the customary duties of a chief appointed to act in the place of the chief would be competent to alienate lands with the consent and concurrence of the elders of the stool just as the chief himself was competent to do.
The evidence brought to support Nii Nortey Yeboah's appointment as acting Osu Mankralo show nothing more than that the destoolment of the co-defendant was a mere declaration by the Gyasetse. I do not know the propriety of such as procedure but the one thing apparent form the evidence is that no charges were  formally preferred against the co-defendant whom destoolment was accepted without question and was championed by the Gyasetse. Preferment of such charges is a customary law requirement and I think the rules of natural justice are part of the general rules of the administration of justice, countenanced by customary law also and failure to comply with them should be held to annual any adjudication made in that regard. I therefore in my judgment hold that the declaration made by the Gyasetse destooling the co-defendant on the facts of this case offended the customary practice of removing a chief and is of no effect. It follows therefore that the subsequent appointment of Nii Nortey Yeboah as acting Mankralo is also void. I further find in my judgment that the grant made to the plaintiff without the participation of the co-defendant who was and is still the Osu mankralo is void: see Mensah v. Ghana Commercial Bank (supra).
This finding on th face of it may seem to conclude the case against the plaintiff but the plaintiff of the evidence is in physical and effective possession of the land in dispute. As against the whole world his possession is just as good title save against the true owner or someone claiming through him. It is in this light that I will proceed to consider the case brought on behalf of the defendant.
I have hesitation, whatsoever, in rejecting as untrue the evidence brought on behalf on the defendant that the Osu mankralo stool made a customary grant of the dispute area to the defendant in 1956 or at any other time. The evidence brought in this regard is , as was rightly pointed out by learned counsel for the plaintiff, riddled with such material conflicts that is undeserving of any credit. Among the conflicts are: (a) The defendant's evidence that the disputed land was originally meant for his father as against the other available evidence that the co-defendant's father asked for the land on behalf of the defendant; (b) the defendant evidence that he paid a customary fee of 32 shillings and two bottles of schnapps as against the evidence that he paid a customary fee of 32 shillings and two bottles of schnapps as against the evidence by the co-defendant and Mr. Hammond that the amount was paid by the defendant's father and that the drink added was a bottle of whisky instead of two bottle of schnapps; (c) the absence of the subsequent payment of another amount of £10.10s. in the evidence of the defendant himself as against the co-defendant's evidence that £10.10 was paid on the defendant's behalf by his father and the evidence by Mr. Hammond that the defendant himself paid the £10.10; (d) the is also the conspicuous absence of the defendant's father in the evidence of the defendant at the time of the inspection of the land as against the evidence of the co-defendant and Mr. Hammond that the defendants father was  one of the parties that went to show the land; and (e) there is no mention by Mr. Hammond of the co-defendant having taken part in the inspection as against the co-defendant's evidence. I was not impressed with the evidence of Mr. Hammond who denied that the plaintiff has ever worked on the co-defendants land.
The preponderance of the evidence which I accept shows that the first time the the defendant ever want onto the disputed land was in 1961 when he was cement blacks being made on the disputed land and reject as untrue any visit by him between 1959 and 1960 which was introduced to lend credibility to this evidence of a grant in 1956. the defendant's evidence is further destroyed by his admission that Walakata owns no house near the disputed land.
Moreover, it is highly inconceivable that a person of the defendant's status, educated ant at that time a minister of state would obtain two building plots without a document and also do nothing physically on the land to indicate his grant, not even corner pillars. There is evidence that Walakata owned no hours near the disputed land and had never lived near the area. Counsel of the defendant informed the court that Walakata was dead and therefore could not be called as a witness. Walakata testified in the first trial of this case and was cross-examined. His evidence was admissible in this trial and counsel's attention was drawn to this. Counsel asked for an adjournment to enable his go and consider whether he deemed it useful to adopt his evidence. For some unexplained reason counsel returned to tell the court that he did not deemed it useful to adopt his evidence. the position therefore is that not only is the defendant's claim that he appointed Walakata as caretaker stands unsupported but it also stands destroyed by the fact that Walakata had never lived near the disputed area. The position therefore is that the evidence of the alleged grant by the co-defendant to the defendant is untrue and I reject same.
As between the plaintiff and the defendant none of them has a valid grant of the disputed land and they both therefore lack title. But the plaintiff on the facts of this case is in actual physical authorities of Summey v. Yohuno  1 G.L.R. 160 at p. 167, S.C and Okantey v. Kwaddey  G.L.R 241 C.A, the plaintiff's possession should be protected: see also Abakam Effiana Family v. Mbibado Effiana Family (supra).
The co-defendant on the facts of this case joined to support the grant to the defendant, his alleged grantee. The defendant having failed to prove his grant, he also fails: see Bruce v. Quarnor (supra).
 Even if my findings above are wrong, which I very much doubt, I have found the plaintiff to have acted in good faith in his dealing with the disputed land and deserves protection under Act 2 and the Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 1961 (L.I. 118). The evidence shoes that he did approach the Osu Stool and acknowledged title in that stool. He obtained a grant from the stool represented by Nii Nortey Yeboah as acting mankralo and the elders. The latter's capacity as such has not been challenged. Even though on my findings above Nii Nortey Yeboah lacked the capacity he assumed, it is this want of capacity which is cured by the combined effect of Act 2 and L.I. 118.
There remains the last issue raised. That is the scope and extent of the right enjoyed by a stool-subject in respect of vacant stool land. There is a common area of agreement among text writers and the case law that there exists an inherent right of a stool-subject to occupy any vacant stool land and that such occupation is deemed to be an implied grant by the stool and that whilst in such occupation the subject is entitled to alienate such interest as he acquires stool: see Akwie v. Awuletey  G.L.R. 231 SC and Seraphim v. Amua-Sekyi  1 G.L.R. 328.
Whilst I accept as sound the customary law principle as enunciated above that although the absolute title in land is vested in the occupation of a subject is void, I am of the view some exceptions should be created in this area of our customary law practice to reflect present socio-economic and political changes in this area of our customary law.
Where a subject of a stool requires land for farming whether arable or for animal husbandry, and engages himself in a commercial mechanized farming he should be required to obtain an actual grant in the form of a lease. If such a person with the necessary resources and equipment is permitted to rely on this inherent right to clear miles and miles of stool land, it would not be long when other subjects of the same stool would be deprived of any share of the land. It is this same light that I consider that the authorities of Donkor v. Danso  G.L.R. 147 and Ashiemoa v. Bani  G.L.R. 130 should be looked at again. Where an outskirt land possession of a subject is required for general development of the community such as for building a school, lavatory, etc. or where as in this case, the area already in the occupation of the plaintiff had been carved into building plots for the use of general community and the complete lay-out of the area has changed, I am of the view that the subject's prior occupation should give way  subject, of course, to preference being given to him in the allocation of such plots if he requires one to build or in the alternative another suitable area given him in plane of the one lost and his consent should not be a prerequisite to the stool taking over control of such an outskirt land. Otherwise it would mean that his prior occupation could hamper all future development of the area occupied by him.
I therefore hold in my judgment that the plaintiff lost his prior occupation right to the stool as a result of the new lay-out. The whole area including his portion was carved into building plots reject his contention that it was incompetent for the stool to make valid grants of any portion of the land he originally occupied for farming.
In the result the plaintiff succeeds as against the defendant and co-defendant and judgment is hereby entered in his favour for title. There will also be a perpetual injunction against the defendants, their servants and agents form any further interference with his quiet possession.