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Komey v. Korkor
3 WALR 331, 1958
High Court, Eastern Judicial Division, Land Court
January 23, 1958

Action by a stool subject for a declaration of his title to a determinable estate in stool land, and for damages for trespass, as against a subsequent grantee of the same land.

OLLENNU J.
recited the facts and continued: The issue to be determined is therefore whether the plantiff's usufructuary title to the land has in any way been affected by the subsequent grant of the same mined to the defendant. This is a pure question of law to be determined in accordance with native custom and the answer to it can be found in the native custom also stated by George Boi, otherwise known Otsiame Yao Boi, Linguist to the Asere Stool, who was called as a witness for the defence. The witness stated as follows:

``If land is granted by the Asere stool to a subject of the stool for building purposes and he does not build on it for a long time, the stool can call him and in consultation with him grant the land to another person who is ready to build; but the stool cannot forfeit the land without first calling the grantee and discussing the matter with him.

``In such a case, when the grantee is called, the elders will tell him that he has had the lane a long time and has not build on it so they would like to know him whether he does not wish to build.

``When the grantee at such meeting replies that he is not ready to build the elders will ask him to state the approximate time within which he thinks he could build; the grantee would then state a period, and the matter would then end there. When the time the grantee appointed passes and he still has not build on the land the elders would call him again.

``If at that meeting he is not able to satisfy the elders that he is making a genuine effort to to build on the land, the elders would then tell him that in those circumstances they would give the land to some other person who is ready to build; otherwise they would give him another opportunity.

``It is not in accordance with custom that the land granted to a subject for building should be forfeited without the knowledge of the grantee, such forfeiture is wrong.

``Nii Bawuley has no right to forfeit land granted in accordance with custom to an Asere man or to any one else without previous warnings to the man as I have described.

``He cannot, on the first occasion of drawing aa grantee’s attention to his delay in building, forfeit the land.''

I accept that evidence as a correct statement of native custom. Upon that evidence it is clear that even if Nii Bawuley called the plaintiff, as he alleged he did, and at that one interview straight away told him he had forfeited the land, he acted contrary to custom and his subsequent grant of the same land to the defendant did not in any way affect the plaintiff's title to the land. But as I have already indicated, I reject that part of the evidence given by Nii Bawuley that before granting the land to the defendant he had told the plaintiff what he intended to do.

I find upon the evidence that by native custom a stool is entitled to forfeit land which it grants to a subject or to anyone else for purposes of building, if the grantee fails, after considerable period, to build on the land. What is a considerable period will depend on the circumstances of each particular case.

I also find that y native such forfeiture of land cannot be lawfully made unless the grantee has been given every opportunity and been warned twice at least and has, in spite of those warnings, made no genuine effort to build on the land. I also forfeiture not made accordance with custom as stated above is invalid, and any subsequent grant upon such forfeiture cannot affect the title of the original grantee.

I hold therefore that the alleged forfeiture of the plantiff's grant is contrary to native custom and is invalid and does not affect the plaintiff's title in any way.

Consequently I hold that the plaintiff is the owner of the usufruct in the land, and the entry of the defendant upon that land in the possession of the plaintiff constitutes trespass; and the plaintiff is entitled to the relief claims.

There will be judgment for the plaintiff for a declaration that he is the owner of the usufruct in the land in dispute, and for damages for trespass assessed at £25.

Judgment for the plaintiff
S.G.D.





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Josh DuBois 2004-12-01