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Total Oil Products Ltd. v. Obeng and Manu
[1962] 1 GLR 229.
In the High Court, Accra
5th April, 1962

[230]

ACTION by plaintiffs for declaration that a grant of land to them by a transferee of a stool subject is invalid because it was done without the consent of the stool, and for return of moneys paid in pursuance of the said grant.

OLLENNU, J.
[His lordship narrated the fact as set in the head note and continued:] the first point to be considered is the position of the second defendant, and no tortuous act has been committed by the second defendant against the plaintiff-company. Therefore no cause of action is disclosed against him; the suit against him is therefore frivolous.

On the suit generally it was submitted by counsel for the plaintiff that:

(1)
the conveyance by the second defendant to the first defendant is null and void, because it as made contrary to section 75 (1) of the Local Government Ordinance;1
(2)
The lease by the first defendant is also null and void by reason of the said section 75 (1) of Cap. 64; and
(3)
By the nature of the deeds of conveyance exhibit C and exhibit E between the second defendant and the first defendant, the second defendant forfeited his usufructuary or determination title to the land as a subject of the stool.

I shall deal with each of these points in turn.

Section 75 (1) of the Local Government Ordnance relied upon to sustain the submission that the transfer of the land by the second defendant to the first defendant is void, reads:

``75 (1) Any disposal of any interest or right in land which involves the payment of any valuable consideration or which could, by reason of its being [231] to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, which is made:--
(a)
by a stool; or
(b)
by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration;

shall be subject to the concurrence of the Urban or Local Council, as the case may be, for the area concerned, and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.''

Since the disposal in the case was not made by a stool, the part of the section which is relevant to this case is subsection (1) (b). The important words therein are:

``Disposal ...made by a person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchanges for a nominal consideration.''

The right of a person by customary law to free use of land is limited to land in its natural state, i.e. land which ha nothing but natural products thereon, not land which has been developed by human skill, industry or capital. No person is entitled to the free use of a coca farm made by another, or to the free use of any house built by another person. Therefore in my opinion the restriction upon disposal of land which is made by section 75 (1) of the Local Government Ordinance applies only to undeveloped land; land with only natural products thereon, but not otherwise. Furthermore, as the subsection (1) (b) shows, the section does not apply to land of consideration other than nominal.

Now the evidence on the record led for both the plaintiffs and the defendants shows that the land belonged originally to a subject, one Yao Kyeame or his family; that it was the said Yao Kyeame who gave it to the second defendant; that at the time of its transfer to the second defendant the land was a farm with cassava and some coca trees growing on it. The second defendant gave evidence which stands uncontradicted that Yao Kyeame sold the land to him, and in addition to the purchase prince he paid Yao Kyeame £G6 for cutting the coca tree on the land, and he thereafter gave drink of 24s. To the Tafohene in accordance with custom when he was about to start build on the land.

Again according to P.W.3, the languish to the Tafohene; the transfer of the land to the second defendant took place twelve, thirteen or more years ago. According to the second defendant he erected a dwelling-house on the land after the sale of it him, and that building was occupied by tenants for at lest twelve years prior to 1960.

Three important facts are proved by the evidence, they are :(1) the transfer to the second defendant must have been made over ten years ago, i.e. prior to the 12th January, 1952, the date on which the Ordinance, Cap. 64, came into force; (2) the second defendant acquired possession of the land for a consideration other than nominal, in addition to the nominal consideration of 24s. To the stool to inform the Tafohene that he was going to build on the land; and (3) that the land was developed land.

Since the transfer of the land Yao Kyeame to the second defendant was prior to the date the Ordinance came into force, it was not in any way [232] affected by the ordinance. Secondary, since the second defendant paid consideration for the land, and since the land he sold to the first defendant was developed land, the Ordinance dose not affects the alienation of the said land.

Again, the first defendant got possession of the land upon payment of a consideration other than nominal -- i.e. £G250. Therefore the demise he made of it the plaintiffs does required concurrence as stipulated in section 75 (1).

On the third point counsel for the plaintiffs submitted that by customary law a stranger or subject forfeited his usufructuary title to land when he denies the title of his grantor. He therefore submitted that to the first defendant that: ``And also the habendum in exhibit E; ``To have And To Hold ...Unto And To The Use of the said Purchase his heirs executors and assigns in fee simple'', show that the second defendant claimed to be owner in fee simple and also purported to convey the fee simple in the land, a title which he as a subject of a stool. Counsel therefore submitted that by tempting to convey the fee simple in the land as shown by the deed exhibit E, the second defendant denied the title of the stool, and thereby forfeited his usufructuary title to the land as a subject.

With due deference to learned counsel, I must say this submission shows confusion of thought. Than only way in which a subject can be said to have denied the title of his stool to land in his occupation is where he claims that the land he occupies belongs to a stool other then the stool to which he is a subject, and that he holds the land as grantee to title of the stool. The second defendant has never made any such allegation.

Here it is appropriate to point out that the habendum which the solicitor who drew the conveyance exhibits C put in that document is as follows: ``To Have And To hold ...unto and the use of the Purchaser his heirs, personal representative, and assigns''. He did not add the words ``in fee simple''. It was counsel for the plaintiffs who, advising that the document exhibits C did not now seeks to avoid toe documents, exhibit C drawn by E upon which he now seek to avoid two documents, exhibit C drawn y another solicitor as well exhibit E drawn by himself. I do not see how he can do that.

But apart altogether form the impropriety in the matter, the submission that a fee simple title in the land is versed in the stool, and that the use of the words fee simple is essential in a conveyance of land by the holder of the usufructuary title is misconceived. There is no fee simple in customary land tenure; all the effect that a conveyance which purports to convey the fee simple in land in Ghana has is to pass the highest estate or interest vested in the transferor; and since the highest title which a subject of a stool can own in the stool land is the usufructuary or determinable title, the only which passed the said exhibit C and exhibit E is the usufructuary title which was vested in the second defendant. On this point see Addai v. Bonsu2. There a person who was only a licensee paying tribute and therefore had the usufructuary title in a certain land [233] vested in him, purported a in this case, by deed to convey the fee simple in the land to the vendee. The Supreme Court held that all that deed conveyed was the vendor's usufructuary title. In the course of their judgment their lordships said3:

``We think not withstanding the nature of the interest which Hamidu purported to have conveyed to the plaintiff he could not law convey more than plaintiff, exhibit B, upon which the plaintiff relies for his title, purports to convey a `fee simple' but there is no doubt that Yadiga did have that kind of interest in the farm and he could not could not therefore convey a fee simple to the plaintiff. The estate which Yadiga inherited from his late brother Salifu and which the Ahfu Native Court decreed in his favour, cannot be different from that which his deceased other Salifu Moshie in relation to the disputed farm and his successor Hamidu Hamidu Yadiga could not be inn any better position. Yadiga could only sell to the plaintiff and the plaintiff therefore bought a usufructuary right only and not a fee simple in possession as the deed of conveyance purports to show.''

Therefore the submission the conveyance by the second defendant to the first defendant exhibits C and E are null and void, is without substance.

Counsel for the plaintiffs next raised a number of other legal points which we should now deal with. He submitted that since the days of tribal wars are long past and gone, and therefore a subject of the stool stool or to be called upon to lay down his life to acquired land for the inherent right to exclusive use of a portion of the stool land which he reduces into his possession by his industry, is now at the will of the stool and therefore the stool could alienate land in the possession and occupation of a subject without reference to the subject-owner or his grantee. Unfortunately for counsel the evidence given by his own expert witness on custom, and the evidence generally, completely shattered that submission to piece. His third witness, linguist to the Tafohene, gave the impression in his evidence in chide that all lands at Old Tafo on which petrol filling stations had been built were granted to the companies concerned direct by the Tafo stool, and that individuals who owned farms or building on those lands were not consulted, and that upon the grant the grantees on those lands were not consulted, and that upon the grant the all that all lands at Old Tafo on which petrol filling stations had been built were granted to the companies. The evidence given by P.W.1, the linguist to the Okyihene, P.W.2 the Okyi State Secretary, and P.W.3 linguist to the Tafohee, as to custom conforms to the well-established principle of the customary law, the namely that a stool cannot alienate land in the possession of a subject without the consent of the subject : see e.g. Golightly and Ors. v. Ashrifi and Ors.,4 Ohimen v. Adjei and Anor.5

[234] Again, it was submitted that by customary law, the second defendant lost his right to the land by pulling down his building on it, because that act amounted I customary law to abandonment, and therefore the transfer to the first defendant is without effect, as a the date of the transfer, the second defendant had more interest in the land which he could convey. There are two complete answers to this submission: (1) the buildings were in existence in June, 1960, the date on which second defendant made the transfer to the first defendant. This fact is emphasised in the lease exhibit J drawn by the very counsel who made the submission. In the said lease he made provisions for the mere fact that buildings erected on the demised land. Secondly, the mere fact that buildings go into ruins or are pulled down dose not constitutes abandonment. Thus the State Secretary P.W.2 corrected the evidence he had earlier given on this issue. He said: ``I would correct the evidence I gave in chief. I now say that a subject dose not by custom loses his rights to building land simply by reason of the fact that his building goes into ruins or because he breaks it down.'' Abandonment has a special meaning in customary law. Mere negligent or non-user of lands for a period however long does not by itself or constitute e abandonment. Some act or conduct must be exhibited by the owner which shows intention not to use the land any longer: see The Shai Hills Acquisition.6

Counsel next submitted that by customary law, a subject is not entitled to alienate his determinable or usufructuary title in the land to any one without prior consent of the stool. He was referred to a number of decisions of this consent of the stool. He was referred to number of decision of this court of the Court of appeal, of the West African Court of Appeal, and of the supreme Court, which have held the contrary, and to the evidence given by one of his expert witness on custom, P.W.I the linguist to the paramount Stool of Akim Abuakwa, where that witness said:

``The main concern of the stool I alienation of land by a subject is that the stool should not lose its right to customary services from the purchased who comes to occupy the land, be he a subject or a stranger. The right which a subject by birth enjoys is also enjoyed by people who acquire the rights of a subject by adoption, i.e., a stranger purchaser whom the stool admits to performance of customary rites.''

Counsel then modifies his original his submission and said that although a subject may alienate his usufructuary title to a stranger, if the instrument of transfer did not clearly state the customary rites which would be obligatory upon the purchaser, the sale would be null and void ab initio. He submitted therefore that since the first defendant is an Ashanti man, not a subject of the Akim Abuakw stool, therefore a stranger in Akim Abuakwa, the sale of the land to him is null and void ab initio because there is nothing in any of the two deeds of conveyance, exhibit C and exhibit E, stipulating the specific customary rites which would be expected of him, the first defendant, to render to the stool. He cited the support of the proposition.

Based upon the said judgment of the privy Council, counsel further argued, though not in so many words that if the conveyance to the first defendant is held to be valid, then he, the first defendant would be in the position a subject of the stool having s usufructuary title in the land and that by customary law the denies of it to the plaintiff-company, [235] strangers to the stool, without the prior consent of the stool are null and void, and the plaintiffs are entitled to a refund of all money they had paid on the transaction to the first defendant. I shall dispose of this last argument first before going back to the former.

I agree that a transferee is no better position than the subject-transferor. Now the law as to the right of the subject to grant a lease of the land in his occupation is well settled. Lease of land by a land; it dose not therefore require the prior consent of the stool: see Thompson v. Mensah7 and the cases there cited. The lease exhibit F is therefore valid.

One cannot help observing that exhibit E one of the documents which counsel or the plaintiffs contends is null and void by reason of the fact that it does not contain any clause which clearly sets out the specific customary rites and services which the stranger-transferee would be obliged to perform for the stool, is a document, which as earlier pointed out, was prepared by the very counsel who now allege that it is was drawn purposely to cure defects in exhibit C. If, as submission by counsel, on inclusion of the particulars he alleges were essential to make the title of first defendant for the particulars in exhibit E, or is the submission on this point only an ingenious and bright idea which has recently come into the mind of counsel? But that is only the way.

The passage I the judgment of the Privy Counsel which counsel land the plaintiffs relied upon his submission reads as follows:

``Their lordship have been referred to a series of decisions in the Land Court in recent years, affirmed on occasions by the Court of Appeal, from which it appears that the usufructuary right of a the stool is not a mere right of framing with no right to alienate. Native the has progression, into an estate or interest in the land which the right of the paramount stool to his own, so long as he alienate it to fellow subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services.''8

The question is, who is to make the provision for commuting the customary services, is it the subject-transferor, is he in a position to say the form into which the stool would like the services commuted? Or is it the stool to whom the services are due who would settle the form in which the services are to be commuted? The answer to this question is to be found in some of the judgments of the Land Court and the Court of Appeal to which their Lordships in the Privy Council referred. We will refer to just three of those cases. In Thompson v. Mensah,9, the Court of Appeal stated the law as follows:

``...the correct statement of the native custom is that a usufructuary title can be transferred without the consent of the real owner provided the transfer carries with it an obligation upon the transferee to recognise the title of the real owner and all the incidents of the subject's right of occupation, including the performance of customary services to the real owner.''

[236] Then in Baidoo v. Owusu10 the Land Court stated the customary law in the following words:

``By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the stool so long as the alienation carries with it an obligation upon the transferee to recognise the title of the stool and to perform the customary service due to the stool from the subject occupant. Where the transferee is a stranger, i.e., a non-subject of the stool, it is customary for the stool to commute the customary services which so devolve upon the transferee to a tenancy agreement of some form or the other, since by native custom ti may sometimes be undesirable,indeed sacrilegious, to admit the stranger transferee to performance of customary services for the stool, for example, in an Akan State it would be undesirable for a stranger to a tribe whose custom is circumcision to perform rites connected with the stool, and vice versa in a Ga Adangbe or an Ewe State for a stranger to a tribe whose custom is non-circumcision to perform customary rites for the stool, in either case it will mean desecration of the stool. Therefore, unless he is formally admitted to actual performance of the customary services or his occupation without performance of the services is acquiesced in by the absolute owner in such a way as to amount to laches, a stranger transferee of the usufruct from a subject should enter into a tenancy agreement of some sort with the absolute owner.''

The same principle was applied in Wutor v. Gyebi11 These judgments make it quite clear that it is the stool whose duty it is to commute the customary services, certainly the commuting is not the responsibility of the subject-transferor. Of course the transferor may introduce the transferee to the stool. But as shown by the notice exhibit A, tendered by the plaintiff-company through the State Secretary, the usual custom is that when a stool notices a stranger on a portion of the stool land the stool calls upon him to come for consideration of his case as to whether the stool would admit him to performance of the customary rites to the stool, or whether the stool would commute the services.

Since tribal wars have ceased to exist, a subject is no longer liable to be called upon to lay down his life to win more land for the stool, or to protect land. Therefore the general form which the customary services take are provision of foodstuff, firewood or some other articles to the stool at the feasts of the stool, at annual festivals, or when necessary, contributions to funds for financing litigation in respect of land. With the rapid developments taking place, it soon may happen that the performance of the customary rites to the stool and litigation in respect of stool land may be financed from a central fund to which all the dwellers, subjects and strangers alike, within the territorial limits of the stool l and are bound to contribute. In such a case since the contribution by the subject to that fund amounts to performance of customary rites to the stool, the compulsion upon the stranger too to contribute to that same fund would amount to the stool admitting him to actual performance of the said customary services. In that case subjects and strangers within the particular area would have equal responsibilities towards the stool in respect of stool land; in that case the alienation of land by a subject to such a stranger would be on exactly the same principles as alienation by a subject to a subject.

[237] And now to exhibit J, the lease which the Tafohene purported to grant to the plaintiff-company. That is a lease by a stool to a stranger of land in the possession of a subject of the stool or his grantee. Upon the well-established authorities, e.g., Golightly and Ors. v. Ashrifi and Ors.12 Ohimen v. Adjei and Anor.13Thompson v. Mensah14 and Baidoo v. Osei and Owusu15 the lease exhibit J is null and void, and passed no interest in the land to the plaintiff-company. At this stage it is appropriate to refer to another Akim Abuakwa case on this issue: Awi and Ors. v. Okyere and Ors.16 The land, subject-mater of that suit, is Akim Abuakwa Benkumhene stool land. The defendants were subjects of the stool in occupation of the land having farms and villages or cottages thereon. The Benkumhene acting with customary consent and concurrence, i.e., of his elders and of the paramount stool sold that land to the plaintiffs who were strangers. The defendants refused to quit the and, whereupon the plaintiffs sued them in Akim Abuakwa Native Court ``A'' New Tafo for recovery of possession and trespass, contending that they had acquired good title to the land because the sale of it to them complied with all the requirements of a sale of stool land by the stool to a stranger. The native court who were the repositories of the customary law dismissed the claim of the plaintiffs, and stated the customary law as follows: ``It is absolutely against the Akyem Abuakwa customary law to sell the farm of a native to a stranger by the stool.'' That judgment was upheld, on appeal, by the Land Court which said, inter alia:

``In my opinion it is a correct statement of the native custom that the stool cannot dispose of, or otherwise alienate stool land in the possession or occupation of a subject without the consent and concurrence of that subject. That principle of native custom is now well-established.''

Realising that by going behind the first defendant to take a lease from the stool, his clients had denied the title of their said landlord and exposed themselves to forfeiture of their tenancy, counsel was at great pains to explain that his clients were obliged to resort to that measure because the first defendant would not take any steps to ensure that his clients would have quiet enjoyment of the land. This explanation, however, is not borne out by the evidence, oral and documentary. The lease exhibit J was executed on the 22nd of October, 1960, and ti was not until the 8th November, 1960, that the solicitors for the plaintiffs wrote the letter exhibit G to inform the first defendant that his clients had been ejected from the land. Then the first defendant by his letter exhibit H of the 23rd November, 1960, requested the solicitors of the plaintiff-company to supply him with particulars of the ejectment of his clients so that he, the first defendant, might take appropriate steps, but he received no reply to his request. Fortunately the first defendant has not counterclaimed for forfeiture of the lease he granted to the plaintiffs, therefore the lease said about this aspect of the case, the better.

The plaintiffs have miserably failed to establish their case, and their failure must be visited with inevitable legal consequences. Each of the claims made by the plaintiffs is dismissed, and judgment entered thereon for the defendants. The defendants will have their costs fixed at 150 guineas inclusive.

Action dismissed.



Footnotes

... Ordinance;1
Cap. 64 (1951 Rev.)
... Bonsu2
[1961] G.L.R. 273.
... said3
ibid. at 275.
... Ors.,4
(1955) 14 W.A.C.A. 676
... Anor.5
(1957) 2 W.A.L.R. 275.
... Acquisition.6
Land Court, Accra, June 3, 1957, unreported.
... Mensah7
(1957) W.A.L.R. 240.
... services.''8
[1961] G.L.R. 492 at p. 495.
...Mensah,9
(1957) W.A.L.R. 240 at pp. 249-250
...Owusu10
(1957) W.A.L.R. 289 at p. 291.
...Gyebi11
1954) Oll.C.L.L. 193; affirmed, Court of appeal, April 5, 1960, unreported.
... Ors.12
(1955) 14 W.A.C.A. 676.
... Anor.13
(1957) 2 W.A.L.R. 275.
...Mensah14
(1957) 3 W.A.L.R. 240.
... Owusu15
(1957) 3 W.A.L.R. 289.
... Ors.16
Land Court, Accra, November 24, 1958, unreported.




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Josh DuBois 2004-12-01