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Mensah v. Blow
[1967] G.L.R. 424
Court of Appeal
12 June 1967

APPEAL from a decision of the Court, Cape Coast, given in its appellate jurisdiction on 26 February 1964, unreported, setting aside a judgment dated 30 December 1960 that was given in favour of the appellant by the magistrate of the Local Court, Komenda, upholding the appellant's claim to ownership and possession of a piece of farm land. The facts are sufficiently stated in the judgment of Lassey J.A.

LASSEY J.A.
This is an appeal from a decision of the High Court, Cape Coast, given in its appellate jurisdiction, dated 26 February 1964, (unreported), setting aside a judgment dated 30 December 1960, given in favour of the plaintiff-appellant (hereafter called the appellant) by the magistrate of the lord Court of Lomenda, in which he upheld the claim of the appellant to ownership and possession of a small piece of farm land known as ``Kotokum'' situate at Bisease in the Central Region of Ghana, and directing that judgment called the respondent) Ekua Blow for possession of the said piece of farmstead.

The main question arising on this appeal is whether a licensee, who has been permitted according to custom to occupy and use a piece of another person's ancestral land and who in fact has enjoyed an unfettered occupation and use of portions of that land, could rely on such leave and license as a defence to a claim by the true owner or lesson or his descendants to exercise their natural rights of ownership or possession over portions of such an ancestral land not actually farmed upon or specifically reduced into effective use or occupation by the licensee at custom. In other words according to customary practice, can an owner of land over which he has permitted a licensee to live and farm exercise his undoubted right of ownership or use of portions of this land contemporaneously with the right of the license to live on and use those portions of such ancestral land which have not been specifically allocated to or appropriated to actual use by the tenant or licensee, or is the original grantor or his descendants' right to possession or to occupy and use this land exclude entirely because of the subsistence o the licensee?

At the date of the proceedings in the Local Court at Komenda, the appellant's claim being one of damages for trespass, and the defence being that the land on which the disputed farmstead was cultivated was a portion of the respondent's ancestral land, ownership or title was thereby indirectly put in issue, and the court should be satisfied that the appellant had discharged the onus which lay on him of demonstrating beyond reasonable doubt that the title to the disputed land or farmstead was in him or his family.

What is in dispute between the appellant and the respondent was which of them is presently entitled to possession of that of the land on which lies the disputed farmstead. There was no dispute between the parties as to the identify of the farmstead being claimed by the appellant; equally it was not seriously disputed that the said farmstead is situate on a portion of land appurtenant to the land on which the respondent and her family have been living and are in occupation. The fact that the respondent's ancestors had occupies and used portion of land on which the disputed farmstead was made was admitted at the trial by the appellant; but he further explained that prior t the trespass complained of by him, the respondent or her ancestor did not enjoy exclusive possession of the whole of the area of which the farmstead in dispute formed part because their long occupation of a portion of the entire land which the appellant claimed to be his ancestral was with the permission of his ancestors.

At the trial the appellant's case in a skeleton form was that the land on which the disputed farm is situate was his family's title to the whole of the; land and also to show how the respondent came to be on the land. The trial, magistrate believed and accepted the evidence of the appellant's witness, Kwaima Esiampong, a farmer living at Bisease, who testified to the effect the over 50 yeas ago two elderly men in the respondent's line of descent accompanied by some women sought permission form the appellant's ancestor one Kwasi `Kunto to live on the appellant's family land. The evidence showed that the respondent's ancestor hailed from the Wassaw area where they migrated from.

According to the appellant's third witness the respondent's ancestor's request to be permitted to stay with the appellant's ancestor's was favourable considered by the elders at a meeting convened for that purpose, and the respondent's elder Enimah and his people were allowed to settle on the appellant's land on which they founded a village. Later members of the two families intermarried and their descendants, including the parties to the present dispute, indiscriminately and appropriated to their respective uses unoccupied portions of the appellant's ancestral land without let or hindrance from either quarter.

This was the state of affairs prevailing before the present dispute over the appellant's right to own or possess the farmstead in question arose. The appellant went on further to claim that he first cleared the virgin forest over the particular area of his family land by his own industry unaided by the respondent with the internton of cultivating it into a farm for disputed farmed which the respondent had trespassed upon by permitting his agents, some ``Fante man'' to plough without his authority.

The respondent on her part admitted sending someone to clears the farm in dispute, which she maintained was on a portion of her ancestral land which members of her family had occupied for many years without any let or hindrance from the appellant or his ancestors. It would seems from the evidence as a whole that during the period of occupation by the respondent or her ancestors no tribute or tolls were demanded from or paid by them as an act of acknowledgement of the appellant's ancestral title or ownership to the entire land of which the disputed farmstead formed part.

Before resolving the preliminary issue of title or ownership to the whole land inhabited, as it were, be members of both the appellant's and the respondent's families, the trial magistrate inspected the locus quo and found at his inspection that one kobina mensah a nephew to the appellant and also a son-in-law to the respondent, was in occupation of portion of the land by the permission of the appellant, his uncle. The court was not impressed by the respondent's evidence as to how her ancestors became possessed of the land of which the farm in dispute formed parts, and consequently dismissed her adverse claim in formed part, and consequently further held that the respondent's family's long use and occupation of the land has always been with the permission of the appellant's appellant was first cleared by himself.

In my opinion, the first question which logically the learned judge of the appellate high court had consider was which of the two parties to the dispute had exclusive right to own or possess the farmstead in question. In other words, in view o the evidence regarding the use and occupation of portions of this land by members of both families can the respondent, notwithstanding her family's permission, lay any valid claim to the disputed territory actually found to have been cleared by the appellant? Instead the learned judge applied wrong principles of customary law and erred in holding that the and continues stay and use of portions of the entire land by the respondent and member of her family, even though admitted to be with the permission of the appellant, ought to extinguish the title of the true owner as found on the evidence by the trial local magistrate, and prevent the appellant as the true owner from recovering possession, and rather permit the respondent as a licensee or stranger-tenant to retain absolute or exclusive use of the unoccupied portions of the said land. With respect, I think the learned appellate High Court judge erred in coming to this conclusion and dismissing the appellant's claim to the dispute farmstead.

The evidence given by the appellant's third withness in this case as to how by the appellant, which piece of evidence the trial court accepted as true, illustrates occupation and use of another's land was the relevant portion of this evidence as, in my view, it contributes much to emphasize the importance of the principle of customary law with which this appeal was concerned. Kwamina Esiampong, the appellant's third withness said among other things as follows;

``I remember over 50 years ago two elderly persons one name Emmah and the other by name Essel Komfo, came with tow elderly women one by name Adjoa Blow but I have forgotten the name of the other, with two young person to the elder of plaintiff name Kwasi, with the plea that they were coming to stay with him and would never return to their place of desertion. This plea was put before elders (stool elders) of Bisease and their verdict to accept them. This land in question was given to Enimah defendant's elder by the plaintiff's elder for settlement. Enimah later died after they had the elderly woman too died. The village then had developed nicely.''

This piece of evidence shows that the true owner of the land, Kwesi Kuntoh, the appellant's ancestor, had permitted or licensed Enimah, the respondent's ancestor, had permitted or licensed Enimah, the respondent's ancestor and his follower to stay on and occupy the land building on it or cultivating food or cashes on it and to enjoy it as improved. Customary food or cash crops on it and to enjoy it as improved. Customary law regard the stranger Enimah as a lice set or estate in the land to the licensee, is the result of a contract or an implied agreement. It has certain important characteristic features about it. Theses are : (1) The owner (or lesser as he is sometimes called) of the must be willing to allow occupation and user of land or portion thereof the whole of the land as the case may be provided the licensee does set up an adverse claim to his title right to possession. In other words, the user of the land must be of a nature not inconsistent with the rights of the true owner. If he does, the licensee is liable to forfeit his right to be on the lessor's land and this conduct may justify re-entry by the owner or ejectment of the licensee. (2) Sometimes the nature fo the grant of the occupational tenancy carries with it the obligation on the part of the licensee to pay tribute or tolls or provide some customary services as an act of acknowledgment of the lessor's paramount or superior title to the land. In some case where the products of the land on which tribute is levied are what may be called natural or food product, the question of the tribute is determined by agreement before the licensee goes on to the land; on the other hand, if it is production of case crops like cocoa or timber, it is the usual practice to determine the quantum of the tribute by agreement after permission to occupy the land has been granted; see Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A. (3) The circumstance of the long occupation by the licensee are such that it is difficult or determine whether the customary tribute has been provided or demanded. The evidence led in the present case showed than during the period of occupation by the respondent's ancestors no tribute of tolls were demanded or paid by them. It would seem members of both families, some of whom had intermarried, freely exercised their rights of user over unoccupied portions of the land without reference to any body. Such user of the appellant's ancestor land must have misled the respondent to believe the ancestor must have acquired an estate or interest in the land which ought to entitle her to oust the appellant from the particular piece of farmstead inn dispute. The respondent in this appeal seems to me to be in precisely the same situation in which the defendant in the old case of Kuma v. Kuma (1936) 5 W.A.C.A. 4, P.C. found himself when he attempted to sell portions of the licensor's farming land. In the said case the defendant and his ancestor had been occupation of the land in dispute in the action for or about six generations without let or hindrance by the plaintiff or about six generation s without let or land in dispute in the action for a about six, generations without let hindrance by the plan tiff or his ancestor; no tributes or tolls had been demanded or paid; it even was established that no drink had been given to owners of the land for permitting him and his people to farm on the land. When later the land, an objection was strongly taken and that led to that to the action being instituted to determine the extend of the defendant's right over the plaintiff's ancestral land. Like the only appellant in the present appeal, the plaintiff in the case cited, was only following the present appeal, the plaintiff in the cases cited was only following the practices of his forebears in not exacting tribute or tolls form person occupying the land with the family's permission, and allowed them to remain on the land subject to good behaviour. (4) Like the respondent and her ancestors in the present appeal, it is also an incidence of this holding that the limited or extent of any proprietary rights of the licensee be strictly defined or understood. The licensee only has a right to use the land equally practices, that throughout the period of occupation the licensee at custom has a present right of possession and over portion of the grantor's land where the right of the grantor is not ousted. In other words, title and right enjoy the land of the latter remains unimpaired, and the granting of the licensee or permission to occupy the grantor's land without paying tribute or tolls is not be regarded as a surrender by the owner or lesser of all claims or rights in the land. IN this case, I think it was wrong for the respondent to look upon his ancestor's long and unimpaired occupation of the appellant's land surrender of the latter's rights of user of portions not specifically allocated t him or members of his family.

I think, therefore, that it was a false approach on the part of the learned applets High Court judge to bases legal conclusions on the assumption that where the respondent licensee has enjoyed of possession or permission to remain and work on the land becomes incapable of disturbance as time goes on to the extent that she can even oust the real owner or dispossess him in respect of portions of the land not specially granted to her or reduced into her effective occupation. The learned appellate judge did not consider the principle of customary law that defines a licensee's right to occupy and use another's land vis-a-vis the exercise of the present rights of ownership still remaining in the grantor or owner.

The basis of the concluding part of the learned appellate judge's decision reads follows:

``I agree with the submission of counsel for the [respondent] that in view of the finding made by the local magistrate and having regard to the evidence adduced in the case, the local magistrate was wrong in ordering the [respondent] to release the farm to the [appellant].''

After this the learned judge for the appellate High Court proceeded to set aside the judgment of the local magistrate delivered in favour of the appellant.

The trail magistrate found the follow facts proved:

  1. That the land on which the respondent and her ancestors have long been in occupation was the ancestral property of the appellant.
  2. That the respondent's ancestors' long and uninterrupted occupation had always been with the permission of the appellant's family.
  3. That a portion of the said ancestral land of the appellant has been granted to members of the respondent's son-in-law by the appellant.
  4. That it was the appellant who first cleared the virgin forest over the area in dispute.''

On these findings it is wrong to hold that the respondent's right to remain and use portions of the appellant's land was superior or cannot be held to have overridden the right of the owner over the disputed area which, as the evidence showed, had already been reduced into the effective occupation by the appellant. It is true the respondent may have enjoyed long and uninterrupted occupation, and she is in possession of portions of the appellant's land her own right, so far as it is a right, but it is a right which is given by customary law and her to be the land accrues to her and members of her family because of the permission originally granted to her ancestors to be there. Therefore the respondent as a licensee at custom has as much protection t be on the land and use the portions of it is permitted to use, but she enjoys occupational rights conferred by her licensee only in respect of portions of the land specially allocated to her for exclusive use by herself and members of her family, or where the extent of the land on which she is permitted to stay and farm has not been determined or limited, she can exercise rights of occupation and possession on an area not specifically appropriated to use by the lessor or members of his family, or where the evidence clearly shows that although a particular area has at time been either cultivation or reduced into effective occupation by the owner or members of his family it has been abandoned. These are some of the important limitations to the licensee's right of enjoyment or occupation in respect the land upon which she is permitted to farm or occupy. Her permission to be on the grantor's land is not assurance whereby the owner conveys an estate t interest in the land to her.

The respondent's claim that she is entitled to dispossess the appellant of the disputed farmstead in this appeal because of the long uninterrupted occupation enjoyed by herself and her ancestors over the land of which the farmstead formed a part is a false one. She seeks to revive in these proceeding in an elegant from the reje ted1 proposition that a licensee become in course of time an absolute owner of the land to the extent of depriving the real owner of the right of user over unoccupied portions of the same land.

In my opinion, it would be against custom to hold that the respondent, who is a licensee at custom, could during the subsistence of the license permission exclude the appellant who is lessor or members of his family from using portions of their own land. If she could, then it shows that as against her landlord, the appellant, she holds an estate granted which cannot e extinguished or forfeited for all purpose. But id she cannot, it can only e because her landlord or lessor enjoys a present right of possession or user over proportion not occupied by her. This in my opinion is the correct wives of the position of the respondent according to customary law. If therefore the appellant, who enjoys a present right of user at the same time with the respondent over portions f land not specifically cleared or occupied by the respondent, claims possession of the specific area now in dispute, which it is admitted on the evidence he cleared before the respondent sent her agent to plough the said area, I do not see what defence could open to her according to customary law ad usage or practices.

On the facts the respondents could not defend the appellant's claim over the disputed farmstead because as a licensee she would not have a present and unbarred right to possession or user over this area in dispute; customary law and practice enjoins upon her to give way to the rightful owner's better claim to particular farmstead now in dispute because the evidence which was accepted showed that he first reduced that area into his occupation. That is the situation we have here. Had the respondent been able to establish y evidence that she first cultivated the area on which the disputed farmstead is located, or that the area on which the disputed farmstead is located, or that the circumstance were such that although it was the appellant who first cleared the virgin forest with the intention of farming there but had sufficiently abandoned it, then her point that she was entitled to claim t as against the appellant might well have had weight. I do think that, therefore, on the facts found by the local court magistrate, the respondent could succeed.

For my part, I am satisfied that the judgment delivered in favour o the respondent at the High Court, Cape Coast, appears to have been founded on wrong application of the principles of customary law. The appellant had made a case, which was sufficient and proved by evidence. In my opinion, therefore, the High Court judge was wrong in setting aside the judgment of the trial local court magistrate. The appeal must be allowed and the decision of the High Court, Cape Coast, set aside including the order as to costs.

The judgment of the Komenda Local Court delivered in favour of the appellant is accordingly restored. Cost awarded by the High Court, if paid, to be refunded. The appellant will have his cost of this appeal fixed at N140.41.

OLLENNU J.A.
I agree.

APALOO J.A.
I also agree.

Appeal allowed.
T.G.K.



Footnotes

... ted1
Error in original




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