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Nyamekye v. Ansah
[1989-90] 2 GLR 152.
Court of Appeal, Accra
19 January 1989

APPEAL by the plaintiff from the decision of the High Court, Sekondi dismissing her action against the defendants for, inter alia, declaration of title to a piece of land in her branch of the royal family and allowing the second defendant's (the chief's) counterclaim for similar reliefs in the stool. The facts are suffiently set out in the judgment of Ampiah JA.

J B Short for the plaintiff-appellant.
A B Sam for the second defendant-respondent.

AMPIAH JA.
The plaintiff in her action clamed against the defendant a declaration of title to a piece of land at Kejebil and an order of perpetual injunction to restrain the defendants, their agents, workmen and assignees from interfering with her family's rights over and in the disputed land. The defendants denied the plaintiff's claim and counterclaimed for a declaration of title to almost the same land. The learned trialjudge at the High Court, Sekondi on 2 August 1983,dismissed the plaintiff's claim and gave judgment for the defendants on their counterclaim. Against this judgment the plaintiff has appealed to this court.

The plaintiff has attacked the judgment on many grounds, one of which is that the judgment was against the weight of the evidence. The issues which the parties set down for determination were:

(a)
`` Whether the land in dispute belongs to the whole royal Ekissi family of Kejebil or to the T S Apia's branch of the said family.
(b)
Whether the new cemetery was sold to the oman or whether the oman were licensees.
(c)
Whether it is the plaintiff's family or the second defendant who has been collecting proceeds from the felling of palm trees at the cemetery.
(d)
Whether or not the plaintiff or the second defendant is entitled to their respective claims.''

I think the main issue was to the ownership of the land; the other issues being overt acts to establish ownership. Since both parties claimed title to the land, the onus fell equally on both not only to establish the root of their title but also the identity of the land they respectively claimed.

The plaintiff contended that since the first defendant did not give evidence, judgment should have been entered him. I do not agree. A party to an action need not give evidence himself. Provided he can adduce evidence of some sort from other sources, the court would have to look at that evidence in considering the totality of the evidence before it. And, in a case where the first defendant can be described as a nominal defendant who derived his claim through the second defendant adduces evidence sufficient to establish his title to the land. The first defendant would succeed or fail with the second defendant. What was necessary in the instance case was whether or not the second defendant had been able to establish his claim to the land.

It is not disputed that both the plaintiff and the second defendant belong to the royal Ekissi family, the owners of the Kajebil stool. The evidence however showed that there were three sections of this family originated by three woman and that succession to the stool was by rotation. The plaintiff and the second defendant belong to different sections of the royal family.

There was overwhelming evidence that individual members of the stool family occupied various portions of the land and that such portions transferred to members of their immediate family upon their death. Despite this, the second defendant persisted in his claim that these portions of the land belongs to the stool and that it was only the occupant of the stool who had authority over the land and who could deal with it. The plaintiff denied that claim and asserted that the portion of the land had been acquired and cultivated upon by her ancestor, T B Apia, and that upon his death that piece of land had gone to J D Fynn as successor and head of her immediate family. She claimed that she had succeeded to that portion of the land after J D Fynn. It is not disputed that the plaintiff is a sister of Fynn and that she, Fynn and Apia belongs to the same section of the royal Ekssi family. Even through the plaintiff described her family's interest in the land as allodial it would occur to all who read the evidence that her family could only claim a determinable or usufrutuary title in the land. What the plaintiff really claimed as per her pleading and evidence was her right to occupation of a land first occupied by her ancestor, T S Apia, and an order to restrain the defendants from interfering with her rights over the land. The customary law position is that even through individuals and families may first cultivate on land, it is the stool which first settles on the land that has the allodial title to the land.

The occupation of land by individuals or families, quarters and sub-divisions of a community is a sine qua non to acquisition of land by a stool. Without original occupation by subjects there can be no stool land: see Ollennu, Principles of Customary Land Law in Ghana (1962 ed.) at p. 30. Even though the second defendant tried to show that the land claimed by the plaintiff was originally settled on by Nana Darko, the preponderant evidence showed that it was T S Apia, the ancestor of the plaintiff, who first cultivated crops on the land in 1919 or thereabout and that upon his death, J D Fynn took over control of the farm and the land as successor for his immediate family. It is this first cultivation which has given the plaintiff the false claim to allodial ownership. It must however be obvious to the plaintiff that before 1919 her stool family had settled on the land. It is instructive here to refer to Casely Hayford in his book Gold Coast Native Institutions at pp 45-46 where the principle is stated thus:

``In the early stages of the Native System, upon the acquisition of lands by conquest or settlement by members of a given community, the lands so acquired or settled upon would be appointed among those worthy of them in the order of merit. Upon that basis, the Chief Military Commander, who subsequently becomes the King, would have his requisite share, and so would every member of the community down to the lowest ranks of the fighting men. Thus each man's land would be his own special property and that of his family, though the King, as overlord of all, would undoubtedly exercise sovereignty over the whole land, every inch of which however would have an individual family owning it.''

The position of the individuals families, etc who occupy the land vis-à-vis the stool is that any portion of unoccupied or vacate the land which individual members of that community or tribe are able by their labour to reduce into their possession, becomes the individual's property and land so occupied would belong to their families after the individual's death. Since the evidence showed that it is the royal Ekissi family which constitutes the stool family of Kajebil and since all the claimants are of this royal Ekissi family, though of different branches, it was not difficult to resolve that the land belonged to the whole royal Ekissi family with the allodial title vested in the Kajebil stool but the family which has immediate enjoyment and control of the land will be the individual or family which is in occupation: see Wiapa v Solomon (1905) Ren 410 and also Concession Enquiry No 242 (Axim) 1780 and 1781 (CC) (1903) Ren 281.

The plaintiff was required therefore to show that her family had but first occupation reduced that portion to its use. The second defendant, for the stool, was also required, since he counterclaimed for the area comprising the cemetery, to prove that the area has specifically been reserved for a cemetery. On this issue counsel for the plaintiff contended that the judgment was against the weight of the evidence.

The plaintiff described her land defendant from the second defendant's. The second defendant admitted the boundaries pleaded by the plaintiff (see paragraph 3 of the statement of defence). The plaintiff however went further to call some of her boundary owners. Since Ahima, an adjoining boundary owner had identified himself with the defendants, it was not necessary that the plaintiff should call him. The plan (exhibit A) showed only two cemeteries on the land. The evidence showed that the old cemetery was at the outskirts of the town and that Krah's land was acquired for the old cemetery. After the acquisition, Krah lost all his interest in the land adjoining the plaintiff's. The plaintiff on the preponderance of the evidence was able to identify the land she claimed for her family.

Since the second defendant claimed that it was the land of Krah which was acquired for the cemetery which land her referred to as the cemetery land, it was incumbent on him to identify this land, if he was to succeed on his counterclaim. On this the learned trial judge said.

``As I have already said the second defendant is disputing the title of the plaintiff to the land and claiming it on behalf of the stool and the royal family. Therefore it is not necessary for him to give the boundaries. All he is saying is that the land, the boundaries of which had been given by the plaintiff, is actually stool property and so I should declare it to be so ...There will be judgment for the second defendant on the counterclaim.''

With respect to the learned trial judge he misunderstood the claim before him. If the second defendant had simply asked for a declaration that the whole land stool land there would have been no quarrel with the conclusion he came to on the second defendant's counterclaim. The second defendant's case was that the land had been taken away from Krah and used as a cemetery by the oman and that Krah had been given a new land. It was therefore necessary to identify Krah's land which was taken away. If indeed Krah acquired a determinable or unsfructuary interest in the land which made it necessary for his consent to be obtained before the taking over, then the plaintiff's assertion that T S Apia also acquire a portion of the land becomes plausible. This conclusion is further supported by the evidence that Nana Darko, Quayson, Ahima and others were said to have acquired specific interests in portions of the land and that upon their death these portions had vested in their respective branches of the royal Ekissi family. Exhibit 1 confirmed this fact. Far from creating an estoppel on the plaintiff's family, exhibit 1 rather confirmed the customary law position that where an individual had reduced a portion of the stool or family land into his possession, the stool or family could not dispossess that person without his consent and concurrence. It was the stool's acceptance of this customary position which made it necessary to replace the land which it took away from Krah. Nana Angama Tsia III's (J D Fynn's) evidence in exhibit 1 only went to show that the land was taken from Krah by the stool and that the land the subject matter of the dispute then was duly given him in replacement. The plaintiff did not accept that the whole land belonged to Krah. It became necessary therefore for the second defendant to identify the land which was taken away from Krah. He did not call any witness. It was clear from the evidence that many of the matters the second defendant spoke of, had occurred when he was not a chief. He also did not have personal knowledge of most of these matters. There were elders of the stool who had more personal knowledge about these matters, yet none was called to testify; not even the successors of Krah. Thus, while at the close of the case the land claimed by the plaintiff was more identifiable, that claimed by the second defendant remained vague. The learned trial judge was therefore wrong in cursorily dismissing the duty on the second defendant to establish the boundaries of the land he claimed and given him judgment on his counterclaim.

With regard to the exercise of overt acts of ownership over this land, there was abundance of evidence from the plaintiff's side. In fact, the cross-examination of the plaintiff by defence counsel showed that the plaintiff had been collecting the proceeds from the land for some sixteen years. Counsel claimed that such collection was illegal. The second defendant admitted that T.S Apia cultivated crops on the land. He further admitted that it was D. J. Fynn to whom the drink (£4) for the acquisition of the land for the cemetery was given. The second plaintiff witness whom the learned trial judge described as a lair, could not have been telling lies. The second plaintiff witness whom was one I.B. Eshun whose evidence was about the collection of tolls from the various sections of the royal Ekissi family. The third plaintiff witness, another witness called Eshun, spoke about his working on the plaintiff's portion of the land through his father. The only witness who was said to have taken part in the acquisition of the land for the new cemetery was Thomas Kweku Ankama, the third plaintiff witness .there was an obvious mistake in numbering the witnesses, but the substance of Ankama's evidence was that land had been granted to the oman by the plaintiff's family for the cemetery . The second defendant agreed to this but said J. D Fynn had received the money for the stool. It was then suggested to the second defendant that:

Q `` When something is taken from the stool and there is any thanks to be given, it is given either to the linguist or the occupant of the stool himself.
A That is not true. The chief orders the clerk to go and show the land, if anything is to be given it is to the clerk for the chief and not direct to the chief. A linguist is not a member of the family.''

But when he was challenged that Fynn never received the ``drink'' as stool clerk , he led no evidence to rebut it. The plaintiff collected proceeds from the land for a period of about sixteen years without any objection. This included a period when Fynn (then incapacitated) was in charge of the land and about six years when she became the successor and head of her immediate family. There was thus plenty of evidence from the plaintiff's side as to the exercise of acts of ownership over this land.

As to whether the new cemetery was sold to the oman or that the oman were more licensees on the land, the answer was clear: Even though in their pleading the defendants had insisted that the land had been sold absolutely to the oman (see paragraph 5 of the statement of defence), they changed their story in their evidence. This was clearly inconsistent with their pleading. The second defendant's evidence that the stool was the one who was entitled to collect the proceeds from the cemetery cuts across his claim that the land, having been sold absolutely to the oman, the principle in Attah v Esson [1976] 1 GLR 128, CA is that where agricultural land has been given to a tenant in perpetuity, customary law would not permit a landlord to enter and gather the fruits of economic trees planted on it by the tenant. The court held further that the customary law rule that except by special arrangement the landlord was entitled to enjoy the fruits of economic trees such as palm and cola trees which already existed on the land had not today been shown to be unreasonable and must therefore be accepted as still governing the relationship of customary landlord and tenant. The evidence that the land was only given to the oman for the burial of the dead and that the grantor reserved to himself the right to collect the proceeds from the economic trees already on the land, was amply supported by the conduct of the plaintiff and her family who continued to collect the proceeds from the economic trees which the evidence showed were cultivated by Apia on the land before the release of the land to the oman. The evidence showed overwhelmingly that the land for the cemetery was not sold and that it was the plaintiff's family which has been collecting proceeds from the felling of palm trees at the cemetery. This was also an overt act of ownership over the land.

The fact that the whole land belonged to the royal Ekissi family and for that matter the stool as allodial owner could not deprive the plaintiff's family which has been shown to have exercised ownership right s over the land, and continued the exercise of those rights, of their title to the land. Under customary law, the plaintiff's family holds a determinable or usufructuary estate in land. And, as against the allodial title, the determinable estate is just a qualification or burden on the absolute or final title: see Tijani v The Secretary to the Government of Southern Nigeria [1921] 2 AC 399, PC. The plaintiff's family's determinable estate has co-existence with the absolute ownership. Its existence is concurrent with the existence of the absolute ownership which latter is generally dependent upon the occupation or possession by the subject or family. So long as the subject or family acknowledges his loyalty to the stool or tribe his determinable title to the portion of the stool land he occupies prevails against the whole world, even against the stool, community or tribe. The subject's occupation of the land and his acquisition of title is not by contract: see Ollennu, Principles of Customary Land Law (1962 ed.) at 54-57. There is a long string of case on this point: see Quarm v Yankah II [1930] 1 WACA 80; Golightly v Ashrifi [1955] 14 WACA 676 and Kakrah v Ampofoah (1957) 2 WALR 303. The stool has no right to grant land in the occupation of a subject to anyone--subject or stranger--without the prior consent and concurrence of the subject in possession. Further, that the subject can successfully maintain an action in defence of the determinable estate in the land against the world at large, including the grantor-stool. What the plaintiff's family acquired in the land had the character of a family land which the head of the family with the concurrence of its members is entitled to occupy as family land and which right includes all the incidents of living, whether by residence on the land by members of the family or by lease of the land to strangers, ie so long as they do not alienate the land from the stool of which they are subjects: see Annan v Ankrah (Consolidated), Land Court, Accra, 27 October 1952, unreported. The family's estate is inheritable and alienable.

The learned trial judge also held that the plaintiff had no capacity to sue and that whether the land was stool land or land for the whole of the royal Ekissi family, the plaintiff, not being the occupant of the stool or head of the royal Ekissi family, could not bring action in respect of the land. In fact the judge's conclusion was that even able to establish that she had been duly appointed as head or successor by the family, she could not sue.

As a general rule the head of a family as representative of the family is the proper person to institute suits for the recovery of family land: see Kwan v Nyieni [1959] GLR 62 at 72. And, where the authority of a person to sue in a respective capacity is challenged, the onus is upon him to prove that he has been duly authorized. He cannot succeed on the merits without first satisfying the court on that important preliminary issue: see Chapman v Ocloo [1957] 3 WALR 84.

In the instant case, the plaintiff sued as the head of her immediate family who are natives of Kajebil. Her evidence was that the land had originally been cultivated by T S Apia of her branch of the Ekissi family. J D Fynn also a member of her family had succeeded Apia on his death and after Fynn had died she had become customary successor and head of the immediate family of Apia. Her evidence of having succeeded to these positions, was amply supported through how she had been put into these offices was never shown. The evidence however showed indisputably that before and after the death of J D Fynn, the plaintiff had been exercising control over the land without protest from any corner. Before the death of Fynn, the plaintiff had controlled the land because even through Fynn was the successor of Apia and head of the family, he was incapacitated. And, she had done so because she had become the successor and head of the immediate family. She exercised such control over the land for about sixteen years before this action. The second defendant's assertion that one Kofitia Tutu had succeeded J D Fynn was never substantiated. It was a lame attempt to challenge the plaintiff's assertion.

The customary law position is that a successor when appointed is ipso facto the head of the immediate family. The head of family need not be formally appointed. It is sufficient for such appointment if he is popularly acclaimed or acknowledged as the head. In the absence of appointment or acclamation the eldest male member of the family failing him, the eldest family member of the family, is automatically the head of the family: see Sarbah, Fanti Customary Laws (1897 ed) at 35; also Mills v Addy (1958) 3 WALR 357. Any person whom the family permits to deal with the family property for and on behalf of the family, or to exercise the functions of the head of the family, is in law, deemed to be the head of the family until the contrary is proved. In Amah v Koifio [1959] GLR 23, it was held, inter alia, that although the plaintiff had not been formally appointed head of his family, since the evidence showed that he had the family's authority to take care of the family property, he was by implication head of the family entitled to litigate the family's title to the property. See also Mills v Addy (supra). The preponderance of the evidence in this case supported the plaintiff's assertion that she had succeeded Fynn and that as the unchallenged elder female of the Apia family, which the evidence also indisputably established, she become the head of the immediate family. The judge's finding that the plaintiff has not established her capacity was therefore unsupported. In the case of Kwakye v Tuba [1961] GLR (Pt II) 535, the successor to a deceased person sued some people in respect of self-acquired property of which the person he succeeded died possessed; the head of the ancestral family applied to join on the ground that as between him, the head of the whole family, and the successor to the deceased, he as head of the whole family was the person entitled by customary law to litigate over the property left by the deceased. In the course of its ruling the court said at 537-538:

``...learned counsel failed to appreciate that the term `head of family' and `successor' are terms which mean one and the same thing, and are interchangeable and that the only time that they are used together as having separate denotations is where it is necessary to distinguish the head of an immediate family of a deceased from the head of wider family of which the immediate family of the deceased is a branch. It is a distinction without a difference. This distinction in the use of the terms is illustrated in the judgment of the Land Court, Accra, in the case of Serwah v Kesse [Oll CLL 20; affirmed [1960] GLR 227, SC]
...

What that means is that, upon the death of a person interstate, although his self-acquired property becomes the property of the whole of his family, the immediate and extended together, the right to immediate enjoyment of the beneficial interest in it, and to the control of it, vests in the immediate or branch family, and the person appointed successor to the deceased is, in law, the head of that immediate or branch family. As such head he is the proper person to sue and he sued in respect of that particular family property.''

(The emphasis is mine.)
Thus, the plaintiff as the head of the immediate family was the proper person to sue when the defendants tried to interfere with the rights of her immediate family.

An appellate court has no right to disturb findings of fact made by trial court except where the findings are not supported by the evidence or are based on wrong principles of law. As I have tried to show, the findings by the learned trial judge on the main issues were wholly wrong and manifestly contrary to the evidence and principles of customary law; they cannot be supported.

In the circumstances, I would allow the appeal and set aside the judgment. I would enter judgment for the plaintiff on her claim and dismiss the second defendant's counterclaim.

OSEI-HWERE JA.
I agree.

LAMPTEY JA.
I also agree.

Appeal allowed.
D R K S





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Josh DuBois 2004-12-01