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Ohimen v. Adjei and Another
2 WALR 275, 1957
Supreme Court of Ghana, Central Judicial Division,
Land Court, Cape Coast (Ollennu J.)
March 14, 1957

[277]

Cases referred to :

(1) Kuma v. Kuma (1936) 5 W.A.C. 4.
(2) Fiscian v. Nelson and Baksmaty (1946) 12 W.A.C.A. 21.
(3) Abbey and Another v. Ollenu (1954) 14 W.A.C.A. 567.
(4) Lokko v. Konklofi (1908) Renner, Vol. 1, Pt. 2, 454.
(5) Golightly and Another v. Ashrifi and Others (1955) 14 W.A.C.A. 676.

APPEAL from a decision of the Swedru Native Court ``B'' on September 4, 1956, giving judgment for the defendant stool in an action by a plaintiff, on behalf of his family, against the stool to which the family belonged, for a declaration of title to land, an injunction and damages for trespass.

[278] OLLENNU J. The plaintiff in this case, suing as head of the Nana Danquah branch of the Asona family of Agona Swedru, sued the first and second defendants respectively as head of the Asona Stool Family and as occupant of the Asona Stool of Agona Swedru. The claim is for a declaration of title, an injunction and damages for trespass. There was no counterclaim.

In their judgment delivered on September 4, 1958, the Native Court made certain specific findings of fact; they also held it to be established law and custom that undisturbed possession of land for fifteen years would have vested ownership of the land in the person in such possession. They dismissed the plaintiff's claim. The findings of fact made by the court are: that the land in dispute is the property of the Asona Stool, which is occupied by the second defendant; that the plaintiff's family are members of the stool family and have usufructuary rights over the said land, but are not owners in fee simple; that the dispute is res judicata by reason of certain judgments of the Agona State Council, given in a stool dispute; and that the plaintiff has slept on his rights (inf any). The Native court thereupon made an order for an injunction against the plaintiff.

Four grounds of appeal were filed originally and two additional ones were filed subsequently.

The are as follows:

  1. Because the Native Court misdirected itself as to the law in holding that the judgments of the Agona State council operated as res judicata, these judgments are being res inter alios acta.
  2. Because the native court was wrong in holding that the plaintiffs' family enjoyed only usufructuary rights as members of the same family as the defendants.
  3. Because the judgment of the Native Court was against the weight of the evidence.
  4. Because the Native Court was wrong in holding as it did that the defendants had been in undisturbed possession for upwards of fifteen years.

The grounds subsequently added were that the Native trial Court misdirected itself by holding that ``the plaintiff acted ultra vires since he has no locus standi,'' and that the trial Native Court was wrong in law in making the following order:

``Order for injunction entered herein restraining the plaintiff, his servants, labourers, workmen or privies from interfering with the Anarfo land.''

Mr. Dua Sekyi, counsel for the defendants, conceded that the order for injunction made in favor of the defendants is wrong since they [279] did not file any counterclaim, and that the judgments and orders of the Agona State council, delivered in matters of constitutional nature, cannot operate as res judicata in a land suit. He could not therefore resist the attacks upon the judgment made in the original grounds and in the additional grounds against these two points.

The Native court's statement of law and custom that undisturbed occupation of land for fifteen years vested the person in such possession with title to the land is of course a misdirection. There is no prescriptive right in this country; undisturbed possession of land by a stranger for however long a time cannot ripen into ownership. See the case of Kuma v. Kuma (1). It may, however, work the other way and operate as an estoppel against an owner who has been guilty of laches amounting to fraud. where the true owner sits by and allows a stranger to occupy his land, spend money or energy in improving it in the honest belief that it belongs to him, equity will not permit the true owner afterwards to recover possession of the land. See the cases of Fiscian v. Nelson and Baksmaty| (2), and Abbey and Another v. Ollenu (3). The correct position is that the true owner loses his right to assert his title and to recover possession of the land; not that the stranger acquires title to it, though in actual fact he does thereby acquire title to the land.

There is evidence on the record which amply supports both findings of the Native court that title - call it fee simple title - in the land is vested in the stool of the second defendant, and also that the plaintiff's family, as subjects of the stool, have acquired usufructuary rights over the said land. Those two findings together raise some very important principles of native custom regarding the nature of the title or interest which a subject acquires in stool land.

There are four principal methods by which a stool acquires land. They are: conquest and subsequent settlement thereon and cultivation by subjects of the stool; discovery, by hunters or pioneers of the stool, of unoccupied land and subsequent settlement thereon and use thereof by the stool and its subjects; gift to the stool; purchase by the stool. Each of these methods involves either the sacrifice of lives of subjects or the expenditure of energy or contribution of money by subjects, and use and occupation of the land by the subjects. The stool holds the absolute title in the land as trustee for and on behalf of its subjects, and the 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 possession and control. The area of land so reduced into the lawful possession of the individual or family, and over which he or they exercise a usufructuary right, is 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 dispose of his [280] 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 the the stool's absolute ownership in int to strangers without the consent and concurrence of the stool.

Where an individual or family in possession abandons any portion of the land in their possession for upwards of ten years, the stool can grant that particular portion to any other subject or to a stranger and such grantee will be bound to perform such services ans pay such sums as may be declared to be performed or paid annually in accordance with native custom. see Lokko v. Konklofi (4), Golightly and Another v. Ashrifi and Others (5), and see also Sarba, Fanti Customary Law, 2nd ed., pp. 66-67.

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 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.

It has been argued on behalf of the defendants that the defendants have fro many years made grants of portions of the Anarfo lands, as evidenced by the documents tendered in the case, without objection form the plaintiff's family; the earliest of these transactions was in 1919. But there was no evidence that the plaintiff's family were in actual possession of the particular portions of the land so dealt with by the stool at the time when the stool made the grants of them. The presumption is that the plaintiff's' family had not bee in active possession of those specific portions for a number of years and therefore that the family must be deemed to have abandoned them. In such a case native custom, as I have stated above, empowers the stool to grant the land to others, nd such grants cannot be regarded as inconsistent with the family's rights in and over the portions of the land in their active possession and control.

The point has also been made that members of the plaintiff's family have received compensation from the second defendant's stool for the demolition of the houses they occupy on the family land. It was urged that such acceptance of compensation evidences their consent and concurrence in the disposition of the land by the stool. had the people who accepted the compensation been proved to be the head and principal members of the family I would have no hesitation in accepting the argument, or at least in holding that the acquiesced in the grant by the stool, even though their acceptance of compensation took place after the execution of the lease by the defendants. By native custom it is only the head, acting with the necessary consent, who can bind [281] the family. It would be chaotic if any member could compromise the portion [sic] 1 of the family by any act which, while benefiting him personally, was detrimental to the interest of the family as a whole.

It is clear from the evidence on behalf of the defence that the defendants and their witnesses are aware of the rights of the plaintiff's family in the land; but the defendants are insisting on ousting the plaintiff's family from the land because, as stated by the defendants' first witness in his evidence-in-chief, the second defendant, after consultation with his elders, refused to allow the plaintiffs' family to continue in possession `` assigning reason that the plaintiff had been at loggerheads with him since the stool litigation.'' Such a vindictive attitude on the part of the occupants of the stool and his elders towards subjects or members of the stool family is unfortunate. Where, as in this case, land is required for development which will be beneficial to the stool and the community generally, co-operation between the stool and the family to be dispossessed is the best method of approach, not high-handed action.

As stated above, the only title which a subject has in stool land and for which he can maintain an action against the stool is the possessory title or the usufruct of the land. The native court found upon the evidence that the plaintiff's family has such a title in the land. Consequently they should upon their own findings have entered judgment for the plaintiff. they therefore erred in dismissing his claim.

For the reasons stated I allow this appeal, set aside the judgment of the Native Court, including the orders for costs and injunction, and substitute therefore judgment for the plaintiff for a declaration of his ownership according to native custom of the land in dispute, and a declaration that the lease of the said piece or parcel of land by the defendants without the consent and concurrence of the plaintiff is ineffective as against the plaintiff's family. I am unable to grant the plaintiff the order for perpetual injunction sought, since it appears from the Native Courts (Colony) Ordinance and Regulations made thereunder that a Native court has no jurisdiction to grant the equitable relief of injunction, other than an interim injunction. As an appeal court I an only grant a relief which the court of first instance is capable of granting. As to the claim for damages, no doubt there has been some interference with the plaintiff's possession of the family land such as should entitle him to damages. But in the particular circumstances of this case it will be discreet not to award any damages.

The plaintiff is to have his costs of this appeal and his costs in the Native Court to be taxed.

Appeal allowed.
S.G.D.



Footnotes

... [sic]1
Here the word ``portion'' is crossed out, and ``position'' entered in, in the original from which this was copied.




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Josh DuBois 2005-01-03