Appeal from a decision of the New Juaben native Court ``A'' on February 15, 1957, in favour of the plaintiff in an action for a declaration of title to land.
OLLENNU J. This is an appeal form a judgment of the Native Court ``A'' of New Juaben, Koforidua, delivered on February 15, 1957, in favour of the plaintiff, for a declaration of his title and damage for trespass, to a piece of land situate at Koforidua. The judgment is detailed and explicit.
Learned counsel for the defendant attacked the judgment on two main grounds: (1) that the judgment is against the weight of evidence and (2) that the plaintiff was estopped by reason of this larches form making the claim. One the question of weight, of evidence, learned form the stool; that it is the caretakers of the stool lands who know the persons to whom grants brave been made and the plots so granted, and therefore the Native Court misdirected themselves in disregarding the document tendered by the defendant, which was a lease granted to him by the New Juaben Stool of the land in dispute. This argument is misconceived.
The first defendant is a non-subject of the New Juaben Stool. He bases his right to occupy the land upon a sale of it made to him in 1932 by the co-defendant. He say that it was not until December, 1948, that he took a lease of it, this being contained in the document to which I have just referred. Both the plaintiff and the co-defendant are subjects of the New Juaben Stool. The case each of them put up is that y native custom a subject of the New Juaben Stool acquires title to a portion of the school lands by cultivation of the virgin forest. The Native Court accepted that as a correct statement of the native custom. That custom as to the acquisition by a subject of title to stool land is so well established, and recognized in decisions of this and higher courts, that I would have no hesitation in setting the judgment aside had the Native Court held otherwise.
The title which a subject so acquires in stool land is the usufruct, not the absolute ownership which is vested in the stool. By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the stool so long as the alienation carries with it an obligation upon the transferee to recognize the title of the stool and to perform the customary service due to the stool from the subject occupant. Where the transferee is a stranger, i.e., a non subject of the stool, it is customary for the stool to commute the agreement of some form or the other, since by native custom it may transferee to performance of customary services for the stool, for example in an Akan State it would be undesirable for a stranger to a tribe whose custom circumcision to perform rites connected with the stool, and vice versa in a Ga Adangbe or an Ewe State, for a stranger to a tribe whose custom is non-circumcision to perform customary rites for the stool, in either case it will mean desecration of the stool. Therefore, unless he is formally admitted to actual performance of the customary services or his occupation without performance of the services is acquiesced in by the absolute owner in such a way as to amount laches, a stranger transferee of the usufruct from a subject should enter into a tenancy agreement of some sort with absolute that a stranger takes a lease direct from the stool without first acquiring the usufruct from a subject.
Since the evidence shows that the land was under cultivation by one subject or the other before the entry by the first defendant, the lease from the stool to the first defendant must be consequential upon a valid alienation to him of the usufruct by the subject who owned the usufruct. The Native Court could not in the circumstances consider the effect of the lease from the stool to the first defendant without first deciding whether he had obtained a valid transfer from the co-defendant; in other words, whether vendor was the subject owner according to nature custom of the portion of the stool land. The native Court found that it was the predecessor of the plaintiff and not that of the co-defendant who cultivated the virgin forest on the land thereby became the owner of the land according to native custom. There is abundant evidence on the record, even from the witnesses of the co-defendant, which fully justifies that finding.
The stool is not entitled to grant any interest in stool land over which a subject as acquired a usufructuary interest without the consent and concurrence of the owner of the usufruct. Consequently, the lease of the land in dispute by the stool to the first defendant which prima facie was granted without the consent and concurrence of the plaintiff's family, the owner of the usufruct, is of no effect and is irrelevant. The Native Court was therefore justified in ignoring it.
On the question of laches the evidence is that the defendant laid the foundations of a building on the land some twenty years ago, but did nothing more and then left Koforidua; that when the plaintiff's family discovered the encroachment on the land they could not get information as to who was responsible for it; that in 1948 when information reached them that the defendant was the trespasser they caused a letter of warning to be written to him; and, that the defendant did not at any time after laying the foundation interfere again with the land until recently when he went upon it and this action was instituted. This evidence does not prove laches which can operate as an estoppel against the plaintiff in the claim he makes by his writ of summons. For an estoppel to be found the evidence must prove: (1) that the owner, with full knowledge that his rights to the land were being infringed, sat by for a long time and allowed the invader to occupy the land and exercise acts of ownership over it in the honest belief that he had obtained good title to it; and (2) that the invader has, in the bona fide exercise of that right of ownership and with the knowledge of the owner, spent sums of money on improving the property. Without those two elements existing together there can be no estoppel -- Lindsay Petroleum Co. v. Hurd (1), cited and relied upon in Kwadjoe v. Cudjoe (2). In other words, the behaviour must amount to equitable fraud in order to operate as an estoppel: see Abbey v. Ollennu (3), and the cases therein cited. The judgment of the Native Court is sound; I cannot interfere with it.