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Mansu v. Abboye and Another
[1982-83] GLR 1313.
Court of Appeal, Accra
10 June 1982

[1314]

APPEAL against a judgment of a circuit court for, inter alia, a declaration of title to land. The facts are sufficiently Stated in the judgment of Abban J.A.

FRANCOISE J.A. By his writ, the plaintiff-appellant, hereafter called the plaintiff, sought a declaration of title to his family's land at Yarbiw in the Western Region. He pleaded that his ancestors had reduced the virgin forest into cultivation and had been in uninterrupted occupation of it until the trespass complained of.

The half-hearted attempt at a traverse of the plaintiff's claim was exposed in the complete failure of the defence to challenge the plaintiff's boundary neighours who testified in his support and who claimed to be still in possession of their farms. The only witness for the defence dealt the co-defendant a lethal blow when he asserted, ``The plaintiff's land is not included in the land of the second defendant.''

The co-defendant's case was, however, that as the Odikro of Yarbiw, he was the allodial owner of Yarbiw lands. He had also fought for the release of the lands for the State Farms Corporation which had previously acquired them compulsorily. The lands had reverted to him with the blessing of the town committee, and therefore he had every authority to grant a licence to the defendant to tap and uproot palm trees, perhaps in the better interest of husbandry and for the good of the entire community. He, however, made no claim against the plaintiff for breaches of customary tenure which would justify for feature, nor was he attempting re-possession following abandonment. [1315] Indeed, his was the novel proposition that a stool could estreat a subject's land extinguish his possessory title, if land compulsorily acquired were later released, or if the town committee decreed it.

When Mr. Polley, who appeared for the defendants-respondents, hereafter called the defendant6s, was called upon to support the judgment he found his task intractable. For one thing, there was no clear evidence that the plaintiff's land had ever been compulsorily acquired. There were no documents authenticating any acquisition, let alone for release to the odikro. What, however, appears on the record is that the State Farms Corporation, successors to the Agricultural Development Corporation, were once allowed to cultivate a piece of Yarbiw land. It was, however, the unwarranted extension of this unofficial grant that was resisted by the Yarbiw populace. The evidence, however, is that the plaintiff's land never came under the cultivation of the State Farms Corporation. Indeed after prevarication, the co-defendant had had to admit:

``It is not true that the land being claimed by the plaintiff is part of the vast land not cleared by the State Farms Corporation. I now say the land being claimed by the plaintiff is part of the vast land not cleared by the Stat Farm Corporation.''

Like everyone else, the plaintiff had paid his contribution to the funds set up to reimburse the odikro, as custom demand. He had not failed in his obligations, to warrant any forfeiture of his lands. The judgment denying him his claim was a travesty. But one electric stroke the circuit judge was rejecting a hallowed canon of customary law, that stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and uncertified breaches of customary tenure, or upon abandonment: see Asseh v. Anto [1961] G.L.R. 103 S.C.; Amoabimua v. Okyir (Consolidated) [1965] G.L.R. 59, S.C.; Kotei v. Asere Stool [1961] G.R.L. 492, P.C

In my view, the defendants undertook the Herculean task of providing the acquisition and its release. They had the burden of proving the legal consequences of he release and establishing hat it included a reversion to the stool. They failed woefully in the discharge of this duty. In Ohimen v. Adjei (1957) 2 W.A.L.R. 275, a case constantly approved by this court, it was held at p. 280, that:

``It would be repugnant to natural justice and good conscience if, while the Stool can insist upon the services and customary rights due to it from the subject, it could arbitrarily deprive its subjects of the enjoyment of the portions of the stool land in their possession. On the other hand the only title in land which a subject can claim against a stool is the usufructuary title to the [1316] portion of the stool land in his actual possession. If he proves that, he is entitled to a declaration of this title to the land.''

To the same effect are Mansah v. Asamoah [1975] 1 G.L.R. 27 225 at p. 236, C.A.; Nyaasemhwe v. Afibiyesan [1977] 1 G.L.R. 27 at p. 31, C.A and Attah Panyin v. Asani II; Atta Panyin v. Essuman (Consolidated) [1977] 1 G.L.R. 83.C.A.

On the issue of damage the plaintiff showed that 215 of his palm trees had been uprooted; at 4 each that would among to the 860 claimed. Neither the sum claimed nor the figure of destroyed palm trees was disputed; the defendants merely contended that the palm trees grew wild, so they belonged to the allodial stool. This overlooked the fact that this was ancestral property stretching back six generations and the palm trees could not in that circumstance be considered to be wild. They grew out of habitation, even if they had not been purposely planted. In any case, the owner of the determinable title at law is the owner of the palm trees: Atta v. Esson [1976] 1 G.L.R. 128 C.A.

I would grant the perpetual injunction claimed. In my view the claim for both special and general damages is justified. I would award 860 special damages. Costs awarded in the court below is set aside, and if paid should be refunded. The plaintiff is entitled to his costs in the court below and in this court.

COUSSEY J.A. The plaintiff-appellant, hereafter called the plaintiff claimed a declaration of title to land situate at Yarbiw on the basis of the land having devolved on him from his ancestors Ezia Badu. His other ancillary reliefs were for perpetual injunction and damages for trespass. The defendants-respondents, hereafter called the defendants, denied the title of the plaintiff to the land in dispute and it would appear form the averment in paragraph 3 of the defence filed that contend that even if the plaintiff was the owner of the land, he lost any rights he might have had over the land when it was acquired compulsorily for the State Farms Corporation. The learned judge in the court below upheld the contention of the defendants that the plaintiff lost the land after its acquisition by the State Farms; and therefore, when it was given up it reverted to its allodial owner, the second defendant, who thought that as the allodial owner of the wild palm trees, he was right in asking the first defendant to distil gin from the wild palm trees.

On the appeal coming on for hearing, counsel for the defendants was asked to support the judgment. He contended that the land in dispute became estreat to the Yarbiw stool, because upon its release by the State Farms it was agreed that it should revert to the chief of Yarbiw. I find no merit in the submission because it is not supported by [1317] the evidence adduced before the trial judge. The evidence does not suggest that there was ever compulsory acquisition of the land for the State Farms Corporation. It appears that the Yarbiw stool offered lands to the corporation for farming but when there was a further encroachment which would have affected farms such as the plaintiffs missioner after various meetings at the regional office. The people of Yarbiw, in fact, made contribution in cash towards the cost of fighting the further encroachment in question. There is not a scintilla of evidence to suggest that the land thereby saved, which included the plaintiff's, became estreated to the Yarbiw stool.

The plaintiff's claim of title to the land was not seriously challenged by the defendants. He proved this claim. The evidence was overwhelming in support of his claim that the land in dispute devolved on him from his ancestors Ezia Badu. The evidence of his boundary owners clearly made definite his land and leaves no one in doubt. I would therefore, declare title of the land in dispute in the plaintiff and further grant him of perpetual injunction against the defendants. The evidence on the special cost of 4 per tree which comes to 860. This was not in contention and I will grant it. General damages will be as stated by the president of the court. The judgment of the court and costs below is hereby reversed.

ABBAN J.A. This appeal is from the judgment of the Circuit Court, Takoradi, delivered on 22 October 1979. The appellant (hereinafter referred to as the plaintiff) sued the defendant for a declaration of title, account, damages for trespass and perpetual injunction in respect of a piece of farm land situate and lying at Yarbiw near Apowa in the Western Region. The land in dispute was a portion of Yarbiw stool lands. The occupant of the said land applied to be made a party and he was accordingly joined as a co-defendant.

The plaintiff and his ancestors were the subjects of Yarbiw stool. The plaintiff's ancestor, Ezia Badu, was the person who first cleared the virgin forest on the disputed land. On the death of the said Ezia Badu, one Dufu was appointed customary successor in respect of that land. Various members of the family of the late Ezia Badu had occupied and cultivated the land. The plaintiff as the present customary successor had been in possession of this land for some years before the cause of action arose. In 1972 an attempt was made by the State Farms Corporation to appropriate a large tract of land in an around the town of Yarbiw for cultivation. The co-defendant, as the chief of [1318] Yarbiw, and the inhabitants of the town including the plaintiff, opposed the indiscriminate cultivation and petitioned the then Regional Commissioner for the Western Region on the ground that if the State Farms Corporation went ahead and cultivated all the acres of land which it had earmarked for cultivation, little or no land would be left for the people of Yarbiw who were mostly farmers. The timely intervention of the said regional commissioner on 10 February 1972. At that meeting the General Manager of the State Farms Corporation, the co-defendant, the plaintiff and other citizens of the town of Yarbiw were present. The minutes of that meeting were tendered as exhibit D. Later an inspection of the land was carried out by the said regional commissioner. Eventually, the State Farms Corporation accepted the directive of the regional commissioner that it would not extend its cultivation beyond the 10,000 acre which it had already cultivated and also to release all the acres of the land which it had not yet cultivated. The plaintiff's disputed farmland formed part of the acres of land which never cleared or cultivated by the State Farms Corporation. Some five years after the so-called release by the State Farms Corporation, that is, in 1977, the defendant, on the authority of the co-defendant, entered the plaintiff's said land, uprooted 215 wild palm trees and tapped them into palm wine for the co-defendant. The defence put up by the defendant and the co-defendant was summed up in the following paragraphs of their statement of defence:

  1. `` The defendant in answer to paragraph 3 and 4 of the statement of claim avers than even if, and it is not admitted, the plaintiff was the owner of the land as claimed, he lost any rights he might have had over land when the same was acquired compulsorily for the State Farms Corporation.
  2. That it was through the efforts of Yarbiw Town Committee that the land was released to the chief of the community of Yarbiw.
  3. That after the release as aforesaid it was agreed that the land should be vested in the chief of Yarbiw and any member of the community wishing to do anything should approach the chief for permission and authority.''

(The emphasis is mine.) The trial judge accepted the defence and entered judgment for the defendant and the co-defendant, dismissing the plaintiff's claim.

Two grounds of appeal were filed, namely that the judgment was against the weight of evidence and that it was wrong in law. Indeed, the judgment was so perverse that counsel for the defendant was rather called upon to support it; but he could do very little to save the [1319] situation. The basis for dismissing the plaintiff's claim was most untenable. The trial judge found that all the lands in and around Yarbiw including the farmland in dispute were stool lands and that the plaintiff had usufructuary interest in the disputed land. But contray to the evidence before him, the trial judge further held that there was a compulsory acquisition of all the lands at Yarbiw for the Stare Farms Corporation and when the said corporation later on relinquished its claim over those lands, the lands so released became vested in the co-defendants as the allodial owner. It is pertinent that I quote the relevant portions of the judgment:

``By exhibit DI this court accepts the defence of the defendants that Yarbiw lands including the disputed land were acquired by the States Farms and all usufructuary owners including the plaintiff lost their titles to their lands ...After careful consideration of the lost the case of the plaintiff is not and that of the defendants, I have come to the conclusion that the plaintiff is not the owner of the land because it was acquired by the State Farms Corporation and given up later the allodial owner. The plaintiff lost his rights over the said land and after it had been vested in the chief of Yarbiw. The second defendant (co-defendant) as the allodial owner of the wild palm trees was right in asking the first defendant (the defendant) to distil local gin akpeteshie, fro the wild palm trees.''

(The emphasis is mine.)

In the first place, was there in fact any compulsory acquisition of the plaintiffs land at all? The answer is an emphatic NO! Exhibit D1 which the trial judge referred to as evidence of the acquisition was just the record of the proceedings of the meeting that took place at the offices of the regional commissioner. The contents of that exhibit D1 rather made it clear that no compulsory acquisition of Yarbiw lands ever took place. There was no evidence that the state Farms Corporation or its predecessor, the defunct Agricultural Development Corporation, or any authority on its behalf, complied with the provisions which dealt with the procedures for compulsory acquisition in the country. That is, the said acquisition ought to have been made in accordance with the provisions of the state Lands Acts, 1962 (Acts 125), as amended by the State Lands Acts, 1962 (Amendment) Decree, 1968 (N.L.C.D. 234). By section 1 (3) of the said Acts the publication of an executive instrument designating a certain land as required in the public interest automatically vests the ownership of such land in the ownership of such land in the Republic. The land as acquired can then be occupied by or allocated to any state agency or organization, such as the State Farms Corporation, and it may even be leased to any private individual, under section 5 of the Act. The acquisition operates to bar and destroy [1320] all rights and interest that it is only where the acquisition is made strict compliance with the provisions of the said Act that the acquisition can determine the right of the usufrustuary owner in the land. That's is, the acquisition properly made will deprive him of his beneficial enjoyment as well as his possessory right in that particular land. In the present case, there was no shred of evidence that any executive instrument was issued under section 1 (3) of Act 125, as amended, in respect of the dispute land or in respect of any lands at Yarbiw for that matter. On the contrary, it was recorded in exhibit D1 that the General Manager of the state Farms Corporation at the meeting could not produce any evidence, documentary or otherwise, about the so-called acquisition. The relevant paragraph in exhibit D1 reads as follows:

``The meeting was declared open at 3.15 p.m. by the chairman. He asked Mr. Butt, General Manager of the State Farms Corporation came to narrate hoe the State Farms Corporation to narrate how the State Farms Corporation came to acquire the Lands belonging to the Yarbiw stool The general manager explained that the corporation inherited the lands from the defunct Agricultural Development Corporation but to the best of his knowledge no documents about the acquisition were available, nor was there any certificate to occupancy.''

(The emphasis is mine.)

This piece of evidence clearly supports the view that no steps were taken either by the defunct Agricultural Development Corporation or the state Farms Corporation to have the stool lands of Yarbiw properly and compulsorily acquire; and as I have already stated, there was, in fact, no compulsory acquisition of the said lands. The trial judge therefore erred in holding that plaintiff thereby lost his unfructuary interest in the said land.

It is significant to note that learned counsel for the defendants had to concede that there was no compulsory acquisition of any portion of the stool lands of Yarbiw. He was then asked why the defense pleaded compulsory acquisition in paragraph 3 of the statement of defense. Learned counsel was at paints to admit that it was an erroneous plea. It might have been an defendant and the co-defendant failed to establish the loss of the plaintiffs usuffructuary interest in the disputed land through compulsory acquisition.

The trial judge, as I have already indicated, found that the plaintiff was the usufructuary owner of the land in dispute, a fact which was amply supported by the evidence. Sine there had never been any compulsory acquisition of any land so the plaintiff did not at any [1321] time loss his usufructuary title in the disputed land, the question of the plaintiff land reverting to the co-defendant as the allodial owner could not have arisen. Apart from the so-called compulsory acquisition, the co-defendant attempt to show that there was an agreement that after its realize the whole land should be taken over by him. The plaintiff denied the existence of such an agreement of any sort. This is what the co-defendant said, ``it is true that I beat gong gong, to the effect that the remaining land belonged to me ...The plaintiff has not entered into contract to give his land to me.''

In my view, there was no legal justification for the trial judge's holding that the plaintiffs land reverted, on its release, to the co-defendant as the allodial owner. The plaintiff, as a usufructuary owner, cannot be ousted from the land by the co-defendant in an arbitrary manner. Some of the cardinal incidents of the usufructaury interest are that the usufructaury has exclusive possession and enjoyment of his portion of land, and he cannot capriciously be divested of this interest by the stool; neither can the stool alienate that portion of the land to any other person without the prior consent and concurrent of the usufructuary: see Ohimen v. Adjie (1957) W.A.L.R. 275. At p. 279 of the judgment the learned judge said:

``The stool holds the absolute title in the land as trustee to and on behalf of its subjects, and subjects are entitled to the beneficial interest or usufruct thereof and have to serve the stool. Each individual or family is regarded in the broad sense as the owner of so much of the land as it is able by its industry or by the industry of its ancestors to reduce into the lawful possessions and control. The area of the land so reduces into lawful possession of individual or family, and over which he or they exercise a usufructuary right, usually called his property. It cannot, save with the express consent of the family or individual, be disposed of by the stool. The individual or family may assign or disposed of his interest in the land to another subject of the stool and the land may be sold in execution of a decree against the individual, or the family, as the case may be, without the consent of the stool. But he may not dispose of the stool's absolute ownership in it to strangers without the consent and concurrence of the stool.''

(The emphasis is mine.) See also Baidoo v. Osei (1958) 3 W.A.L.R. 289 and Atta Panyin v. Ashanti II [1961] G.L.R. 305. It can therefore be seen that the usufructuary interest is potentially perpetual. So that apart from the statutory powers for expropriation or acquisition as [1322] provided in Act 125, as amended by N.L.C.D. 234, the interest of the usufructary can be determined only by his consent abandonment or upon failure of his successors. All these conditions were absent in the present case. Consequently, the plaintiffs land could not be said to have reverted to the co-defendant. That being the case, the plentiff was in full and exclusive control and possession of his said land at the time the co-defendant authorized the defendant to enter upon it and to uproot those palm trees. Since the entry was without the permission of the plaintiff, the defendant's conduct constituted trespass.

The defendant, for all intents and purpose, ought to be treated as the agent of the co-defendant, especially having regard to the fact that the proceeds which the defendant realized from the sale of the palm wine were admittedly paid over the co-defendant. The co-defendant must therefore be held vicariously liable for the consequences of the trespass committed by the defendant In other words, both the defendant and the co-defendant ought to be condemned, jointly and severally, in damages to the tune 750. In addition, they should be called upon to account for the value of the 215 palm trees. I am aware that the palm trees in question were wild oned. But that does not make any difference. The allodial owner, without the permission of the usufructuary owner has no right to the econo,mic trees on any land which is in the possession and control of the usufructuary owner, whether those economic trees were cultivated or grew on the said land without " the intervention of human labour. "Ollennu in his book entitiled the Principles of Customary Land Law made this quite clear, at p. 59 of the said book where he stated:

``Another important incident of the determinable titile is the right to palm and cola nut and other economic trees of the land. In all parts of Ghana where the oil palm tree and other species of palm grow, it is the owner of the determinable titile in land, and he alone who is vested with the right to harvest the fruits, to fell the palm trees or to tap wine from them. Niether the owner of the absolute title nor the owner of the sub-absolute title can go upon land to harvest cola nuts, palm wine or fell palm trees for palm wine. They may request the owner of the determinable title to supply so many pots of palm wine or a quantity of palm nuts or cola nuts as customary services, but they are not permitted by custom to go upon land in ppossession of a subject to take any of these things.''

Dr. S. K. B. Asante in the Property Law and Social Goals in Ghana 1844-1966 also shares the same view but ha further goes to include timber. At p. 61 of the book the learned author states: [1323]

``It need hardly be stressed that the usufructuary is entitled to income of the land. This may take the form of prescribed proportion of agricultural produce under an abunu or abusa tenancy, or rent accruing from a lease, or the consideration for the grant of license or the "brute product" of the arising without the intervention of human labour such as palm-nuts, cola nuts and timber.''

The plaintiffs' evidence that the defendant uprooted 215 palm trees and that the value of one was 4 was never challenged. The defendant and the co-defendant, are therefore accountable to the plaintiff in the sum of 860. Furthermore, the plaintiffs request for perpetual injunction should be granted. He must also be granted the declaration of title which he sought since it was established that he was the usufructuary owner of the land. In Ohimen's case (supra), the learned judge at p. 280 observed:

``On the other hand the only title in land which a subject can claim against a stool is the usufructuary title to the portion of the stool land in his actual possession. If he proves that, he is entitled to a declaration of his title to that land.''

For the above reasons, I also agree that the appeal should be allowed, and the judgment appealed from set aside, including the order for costs; and in substitution thereof judgment is entered for the plaintiff against the defendant and the co-defendant jointly and severally for (a) a declaration of title to the disputed land as described in the writ of summons, (b) 860 being the value of the palm trees unlawfully uprooted and tapped into palm wine, (c) 750 as damages for trespass, and (d) perpetual injunction restraining the defendant and the co-defendant, their agents, servants, labourers or workmen from entering the disputed land or from having anything to do with same.

Appeal allowed.
Judgement for the plaintiff.
J. A. A.





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Josh DuBois 2005-01-03