OLLENNU J. In this issue on October 20, 1955, the plaintiff claimed a declaration of title to a piece of land situate on Ring Road, Accra; recovery of possession of the land, mean profits, and an injunction. The land is fully described in the writ summons. The statement
And march 29, 1945, executed in his favour, as the May 3, 1944, Halm Owoo, and as to the second and third, by one J.kofi Parry. On February 15, 1956, the plaintiff filed an amendment to his statement of claim wherein he pleaded that his vendors, the said Halm paragraph 3 he averred that the defendant had erected buildings on the said land in spite of being warned of the plaintiff's title to it.
By his statement of defendant pleaded that he entered upon the eland under a grant by the Atukpai family, and that he was in negotiations with the Korle Webii to perfect his ownership. In the summons for directions, filed on November 22, 1955, the plaintiff asked for an order that the only issue to be tried was: "That the vendor [I think he proper owners of the land Court, on November 30, 1955, in consequence of an amendment to the summons for directions setting down the following as the only issue for trial, namely: "that at what time defendant derive their title from the same vendors>"
In short the issue raised on the leadings is whether the plaintiff acquires title to the land under the deeds pleaded. Hearing of the case commenced on October 11, 1956. Counsel for the plaintiff opened the case in the following words:
"We have documents showing our title to the land; also show document of our vendor; covered by Gologhtly v. Ashrifi (1); hold defendant's vendor no right; also pleads land granted to him for farms"
The evidence given by the plaintiff at the trial was short. It is as follows, leaving out the formal parts.
"I bought land plots on Ring Road. I produce my convinces April 26, 1944 May 3, 1944 and March 29, 1945-Conveyances by Halm Owoo and John Parry. My Vendors gave me deeds. Grants by Korle Webii. I know defendant. I warned him to keep off land He did not.
Cross - examined:
"Korle We the owners? Yes. You rely on their grant alone? Yes Case about land "Kokomlele Case"? Yes Your land is in that area involved in that case? Yes.
Some of lands belong to kotey family? Not near me. Dis Ga Manche concur in grant? I didn't know. Ask him to? No.
Gbese Manche? He said to aright. Didn't sing? No."
That was all the evidence the plaintiff gave. The case had to be adjourned that day to October 18, 1956, at the plaintiff's request, on the grounds that his witness, the Korle Priest, was not in court. On October 18, 1956, the case was again adjourned at the instance of the plaintiff, as he said he was ready to proceed. It was adjourned to November, 1, 1856.
When the hearing was resumed on November 1, the plaintiff called three witnesses, the Korle Priest, was not in court. On October 18, 1956, because they were not then in existence. And when they came into existence the statement of claim was never amended in order to plead them. Moreover, the plaintiff in his evidence had said that he relied solely on the grant by Korle Webii for his title. Under Order 19, r.4, of Supreme Court (Civil Procedure) Rules, 1954, a party must plead all material facts upon which he relies to sustain his case, and outhunt to be allowed at the trial to lead evidence in proof of matters not pleaded: see the case of Phillips (2). Again there was no proof of the execution if either of those two documents. The said deeds purport to have been made by Nii Ayitey-Adjin," which seems to indicate that they are not originals. The fact that these documents were admitted without objections is in my opinion, immaterial. Each of these two documents purports to convey stool land in the municipality of Accra within the Ga State for valuable consideration. Therefore each if them requires the consent, first of the Ga State Council, as provided by the State councils (Southern Ghana) Ordinance, s. 16 (1) and secondary of the Accra Municipal Council as provided by the Municipal Councils Ordnance s. 73 (1). On the face of each of the said documents it is clear that they do not comply with the said statutory requirements. Each of the documents is therefore null and void and of no effect. Upon the assumption that those documents are valid, Mr. Asafu-Aadjaye for them appellant submitted that they confirm the title of the plaintiff's vendors, Kofi Parry and Halm Owoo. I do not think this argument s maintainable, those two men, Kofi Parry and Halm Owoo, had, by the deeds of conveyance pleaded, and parted with the whole of their right, title and interest, if any, in the land to the land to the plaintiff as long ago as 1944 and 1945. What title had they on October 31, 1956, which ago as 1944 and 1945? What title had they on October 31, 1956, which can be confirmed? None whatsoever.
Leaned counsel also submitted that the confirmations given relate to 1944 and 1945. What title had they on October 31, 1956, which can be confirmed? None whatsoever.
Learned counsel also submitted that the confirmation given relate to 1944 and 1945 to give effect to the conveyances made by the Acting Korle Priest to Halm Owoo and Kofi Parry. In my opinion, judging from the recitals, those documents were not intended to have retrospective effect. But should I be wrong in that opinion I would say that the effect of the document would have to be determined n accordance with principles of native custom applicable to the Kokomlemle lands as laid down and fact found in the judgment in the case of Gologtly and Another v.Ashrifi and Others (1) (Popularly known as the Kokomlemle Consolidated Cases) a case upon which the appleant much relied.
The material decisions in that case are:
(1) That outright alienation of the Kokomlemle lands cannot be effected except by the prior consent of the Ga and Gbese Stools and Korle We; (2) That the Kotey family, by ancient grant, are entitles to a defined peroration of the Kokomlemle lands; and (3) That the three controlling powers, the Ga and Gbese Stools and the Korle We, cannot alienate any portion of the land without obtaining the consent and concurrence of individuals or families, being subjects of the Gbses Stool, who are in occupation, or of strangers who have properly been granted some interest, is it farming or occupation interest in the land.
The land in dispute in this case is proved to be within the area adjudged to belong to the Kotey family. Applying these principles and faces, I have arrived at the following conclusions: (a) With or without the confirmation of the Gbese Stool the alienations of the land by the Korle Priest are not in conformity with the first principle and are therefore void in that the deeds show alienations of the absolute ownership without the prior consent and concurrence of the absolute and such consent has never been consent and concurrence of the Korle We, they were without he consent and concurrence of the Kotey family, who are adjudged to be in possession thereof an ancient grant, and they are therefore of on effect.
Thus in either case those documents vest no title in the grants named therein, i.e., Kofi Parry and Halm Owoo, and consequently the plaintiff acquire no title under those deeds of conveyance executed in his favour by the Kofi Parry and the said Halm Owoo.
Counsel further referred the court to the finding in the said Kokomlemle Consolidated Cases that the land adjudges to belong to the Kotey family cannot be alienated by transfer of right, meaning use fractural by transfer of ownership without the consent of both the Ga Mantse and Bgese Mantse, and submitted that since the Kotey family had alienated the land in dispute to the defendant, they had forfeited their right to the land and the plaintiff therefore acquired a good title,. At least possessor title, through the made to his vendors by the Korle Priest alone.
The first answer to that submission is contained in a passage appearing in a judgment which was tendered in this case delivered by Jackson J., the same judge who tried the Kokomlemle Consolidated Case (1), in an action instituted by one of the families to whom, also, according to his judgment in the said Kokomlemle consolidated Cases, an ancient grant had been made for passage reads as follows:
"These interests were discussed by me at length (i.e., in the Kokomlemle Cases) and having found that the land in question had originally been acquired by the family for farming purposes, .I found that they could not be dispossessed of those rights other than by their free consent so long as their conduct towards the Gbese Stool Confirmed with the good standard referred by native customary law. In this action the Gbses Stool is not party and makes no complaint. The land had thus acquired the character of family land and which the Head of the Family with land and which right included all the incidents of living whether by residence to land by members of the family or by leases of the land to strangers, i, e., so long as they do not alienate the land from the Stool of which are subjects.
Native custom does what is reasonable. Where a man, entitled to farm and occupy land, but unable for some reason or the other to farm it or build on it himself, permits a stranger to farm to build on it terms that he, the owner, also should enjoy part of the proceeds or manse profits, I.e., where a relationship similar to that of landlord and tenant is created, the grant of that interest of the land is not regarded by native custom as an alienation of the possession or usufructuary title in the land to the detriment of the of the stool. In this case there is no evidence of an alienation of the land in any shape or from by the Kotey family to render them liable to forfeit their ancient grant. All the head of Kotey family said is: "We agreed he should stay on that price of land." Secondly, forfeiture according to native custom is not an automatic consequence which must necessity attend a breach of a condition of grant. Native custom, quite apart from the principles of equity, which are applicable to this country, abhors greed and ill - gotten gain. Therefore, where with full knowledge for a breach of condition of a grant made in accordance with native custom, am grantor sit by and allow a third party to occupy the land openly in the belief that he has acquired good title, and to improve it, native custom will not look favorable upon a claim to forfeiture; it will refuse it.
This principle of estoppels in native customary law as a bar to a bar to a claim of ownership is often illustrated in certain proverbial or figurative claim of ownership is often illustrated in certain proverbial or figurative expressions in the various vernaculars, a question which in Ga folk lore the chief and his elder put to Mr. Squirrel make farms on the land, quickly jumped down as soon as the corps were ready for harvesting and claim ownership of the farms. The chief and the elders asked him:" Tsono asoo in anaa nmo? -Meaning literally: "Can a person just sit on a tree on a tree land and then become the owner of farms made by other on that land? " In other words: "you world farms are making a big mistake to think that in these circumstances you can become the owner of the farm".
As the learned trial judge out, the Korle Priest, through whom the plaintiff claims title to this land, was not prepared to contest the title of the Kotey family. I find that the real owners never objected to any alienation by the finding of the learned trial judge that there has been acquiescence on the part of the ultimate owner in the use of the landform building purposes is well founded.
The principle to be applied to forfeiture in native custom is the same as those governing a conveyance of stool or family land b the occupant of the stool other family without the necessary consent. Such conveyances are taken timorously to avoid; they may only be set aside when steppe are taken timorously to avoid; are taken timorously to avoid them. In the same way forfeiture wills not necessary follow a branch of a condition of the grant, it may only be enforced when sleeps are taken without delay.
The submission of learned counsel based upon the passage quoted from the judgment of Jackson J., approved of by the West African court of Appeal in the Kokomlemle Consolidated case, "that by native custom the Kokomlemle Consolidated Cases, the owner of the usufructuary title cannot transfer that title without the previous consent and concurrence of the absolute owner" requires qualification. What the native custom guards against is alienation to the prejudice of the absolute of the title of the absolute owner and of the customary services due to him. Every without actual permission. Such occupation or enjoyment of the usufruct imports recognition of the title of the stool as owner. Whether the subject obtained the construct in stool land by original occupation, or by gift, sales or other form of transfer form another subject or grantee to the stool, his titles will be good even through his original entry or the transfer to him was without previous consent and original entry or the transfer to him kofi the stool. It would be ridiculous to say that title from express permission of the stool but cannot obtain a good title from another who has also enters under similar conditions. How much more when the subject obtains the usufruct form another subject who entered with express prior consent of the stool.
It may be argued that when a subject obtains the express consent of the stool to occupy stool land, the stool can be a prohibition against such occurrence of the usufruvtuary title without the previous consent and concurrence of the stool. IN my opinion such a condition will be void and enforceable of the since it will be violation of the subject's inherent right to occupy stool land without any burden except the recognition for the title of the stool which carries with it certain customary services.
The occupation without express permission is deemed by native custom to be with implied permission. Therefore the occupation with express permission cannot carry with it a grater burden than that which native custom imposes upon occupation of stool land with prior expressed permission of the stool does not create a contractual relationship between the stool and the subject analogous to "abuse" or abunu" tenancy.
It is nothing more than apos9itve conferment upon him of his inherent customary right by native custom in the stool land. That express permission cannot therefore limited or curtail the rights or incident which by native custom are attached to the subject's occupation of the land.
Coussey J. as he then was, delivering the judgment, unreported, unreported, of the West African Court of Appeal in Civil Appeal No. 117/49 on January 15, 1952, stated the position as follows:
"In English law there is a clear division between property and possession, but a very usual from of native title is that of a usufructuary right which is a qualification of or burden on the final title of the owner of the land..... The plaintiff had made farms and had an interest in the land which was transferable so long as he recognized the title f the owner."
In my opinion the statement for the native custom is that a usufructuary title can be transferred without the consent of the real owner provided the transfer carries with it son obligation upon the transferee to recognize the of real owner and all the incidents Of the subject right of occupation including the performance of customary services to the real owner.
A judgment of van Lare J., as he then was cited to the trial judge in this case and a certified copy of it was tendered in evidence. That judgment was given in Adumua-Bossman V. Bannerman (3), and the subject-matter was a portion of the Kotey Family land. In that judgment the learned judge held that the plaintiff, who was a grantee of the Kotey family, was entitled to a declaration of his title to the usufruct in the land.
There is no doubt that the trial judge this case was influence by the said judgment. That judgment was subsequently set said by the West African Court of Appeal.
Learned counted submitted that since that judgment has been set aside, the judgment of the land court in the present cased based upon it should also be set aside. The ratio decided in the judgment of the West African court of Appeal in that case was the well- known principle that possession by a defendant will prevail against the whole world except the true owner. The same principle must be applied to this case. There is no evidence that the plaintiff has ever been in possession. In paragraph 3 of his statement of claim the plaintiff averred that the defendant is in possession. Thus no matter how defective the title of the defendant is, his possession is good against all but the true owner.
The plaintiff by his writ set a claim of ownership which should entitle him to immediate possession as against the defendant. He has not been able to establish that title; it appears he laboured hard till the last moment no court of law could have given judgment for him.
In the circumstances I would dismiss the appeal.
GRANVILLE SHARP J.A.I agree.
Smith J. I also agree.