LORD DENNING, LORD MORRIS OF BORTH-Y-GEST AND THE
RT. HON. MR. L. M. D. DE SILVA
APPEAL (No. 31 of 1959) from a judgment of the West African Court of Appeal (Foster-Sutton, P., Coussey and Hearne, JJ.A.) delivered on the 4th March, 1955 (unreported) affirming the judgment of Jackson, J. delivered in the Land Court on the 22nd November, 1951, wherein he refused a declaration sought by the plaintiff that certain land was the ancestral property of his family. the facts, which are st out in the headnote are taken from the judgment of the Privy Council.
In the present case Jackson, J. came to a similar conclusion. He held that the Mukose lands were Asere stool lands. He based this finding on the evidence that the asere stool had placed headmen on the land; that these headmen permitted strangers to farm upon the land and collected tolls from them; and the headmen paid these tolls over to the Asere Mantse. Their Lordships have examined this evidence and are of the opinion that it supports the judge's finding that ``the tolls collected were paid by the collector to the Asere Mantse''. It was said by Mr. Davies that, even if this were so, it does not warrant the inference that it was Asere stool land. The tolls were only paid by strangers and they may have been paid, not for the use of the land itself, but as recognition of the political jurisdiction of the Asere Mantse. Their Lordships cannot accept this view. It seems clear upon the evidence that these strangers paid the tolls for the use of the land.
The West African Court of Appeal affirmed the decision of Jackson, J. but their Lordships feel bound to notice that they seem to have made two slips in their reasoning. They seem to have been under the impression that the compensation was awarded according to the rights of the parties in the whole land, that is, as to the seven-eighths to the Nikoi Olai family for their possessory right to the whole, and as to the one-eighth to the Asere stool for their right to manage and control the land and receive tolls. But Mr. Dingle Foot felt bound to concede that the compensation was not divided on that basis. Nor indeed could it be. The only persons entitled to compensation were ``the parties in possession of such lands as being the owners thereof''. It was therefore a necessary finding by Jackson, J. in the wireless case that the Nikoi Olai family were entitled in possession as being the owners of seven-eighths of the land. There was another error made by the West African Court of Appeal. They relied on the evidence of one Djani Kofi in an earlier case, which had been specifically excluded. And Mr. Dingle Foot felt obliged to admit this. In view of these errors made by the West African Court of Appeal, it cannot be said that there are two concurrent findings that these lands were Asere stool lands.
In these circumstances it is open to their Lordships to consider the evidence adduced before Jackson, J. in the present case; and they find there was sufficient evidence on which he was entitled to find, as he did, that the Mukose lands were Asere stool lands, in this respect, that the Asere stool had a paramount title. The payment of tolls to the Asere stool and the recognition of headmen in the villages is sufficient proof of such a paramount title in the stool. Nevertheless there was a great deal of evidence to show that, subject to the paramount title of the Asere stool, the Nikoi Olai family had an estate or interest in the Mukose lands. The crucial findings on this point are these:
What was the nature of this estate or interest in the land? There was no evidence on this point. Jackson, J. seems to have thought it was a right of farming with no right to alienate except with the consent of the paramount stool. Hence his declaration that ``as subjects of the Asere stool they possess rights of farming in the area''. In this, he no doubt had in mind the evidence which he had heard earlier in 1951 in cases about the Kokomlemle lands. But their Lordships would point out that the findings in the Kokomlemle cases depended entirely on the evidence in those cases: and must not be taken to be determinations of law which are of general application. Their Lordships have been referred to a series of decisions in the Land Court in recent years, affirmed on occasions by the Court of Appeal, from which it appears that the Usufructuary right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do. The law on the subject is developing so rapidly that their Lordships think it wrong to limit the right of the plaintiffs in the way that Jackson, J. did.
Their Lordships will accordingly report to the President of Ghana that in their opinion the declaration made by Jackson, J. and affirmed by the West African Court of Appeal should be varied so as to grant the plaintiffs a declaration that they possess such rights in the area edged in green, on the plan, exhibit 1, as are conferred by law on a subject of a stool who is in possession. But inasmuch as the plaintiffs have not succeeded in their claim to be absolute owners free of the Asere stool altogether, and thus have in part failed but in part succeeded, their Lordships will report to the President of Ghana that in their opinion no order should be made as to the costs of this appeal and that the order for costs made by the West African Court of Appeal should be set aside, leaving each party in that court also to pay his own costs.