APPEAL from judgment of Smith, A.C.J., at Accra, dated 20th February, 1905.
This is an appeal from the judgment of Smith, Acting Chief Justice, at Accra, date the 20th of February, 1905.
The plaintiffs Wiapa and Obuobi are members of the Nyago family, at Tutu, a town in Akropong. The defendant Akuffo is the Omanhene of Akwapim, and he claims th the land by right of his stool on behalf of all Akwapim. The other defendant, Solomon, claims by purchase from Akuffo as Omanhene. According to the plaintiff Wiapa, Nto, a predecessor of the Nyago family, of Tutu, went to the land in question many years ago. At that time plaintiff admitted that the land belonged to no one. He further stated that he was told that the land was originally the property of Akwamus, the former inhabitants of the present Akwapim country. Upon these admissions Mr. Sarbah, for the appellants, argued that if this land was no one's land and was within the Akwapim country, it must have been attached to the Akwapim stool, and he enunciated the general principle that all unoccupied land within territory under a paramount stool belongs to such stool. This is practically the principle upon which the Courts of this colony have proceeded from their inception ; and this doctrine has served as a safeguard to the natives against possible Government claims. When Sir William Maxwell's Concessions Bill was before the Government, there was much discussion on the subject, and must stress was properly laid upon the fact that the Courts had always held that there was no unowned land in the colony, and that all unoccupied land was attached to the adjoining stools; this was indeed the foundation argument on behalf of the native chiefs against that Bill, and the Government recognized its force by withdrawing the Bill.
We find the principle set forth in two memoranda which are to be found in Sarbah's Fanti Laws, one by my brother Smith and thee other by the late Bruce Hindel, Attorney General of the Colony.
Though the principle obtains that all the unowned land under the authority of a paramount stool belongs to such stool, in practice this is much modified, at any rate in the Eastern parts of the colony. In these parts each subordinate stool has attached to it large portions of land, apparently carved out of the territory originally belonging to the paramount stool; similarly, families have large tracts of land carved out of the subordinate stool lands, and finally, we get down to individuals with private worship of particular parts of the family land; or private individuals may have part of the stool land not being family land. Any unoccupied land within the recognized boundaries of the subordinate stool land or the family land or private land would, of course, belong to the subordinate stool, or the family, or the private individual as the case may be; but any unoccupied land not being a part of the land of a subordinate stool or family, or a private person would be attached to the paramount stool.
It is clear from the plaintiff's evidence that the land upon which Nto went was unowned, and therefore stool land; whether at the time it was Akim or Akwapim stool land it is not necessary to enquire.
In the circumstances, it was necessary for the plaintiffs to prove that they came into lawful possession of this land. The fact of reasonably prolonged occupation would of itself have been strong evidence that their entry was lawful, but this they were not able to prove. All they could prove was intermittent occupation of one or two indefinite plots of land within the extensive area claimed. That is not sufficient even to entitle them to the particular plots of land formerly cultivated. Then it was suggested that hunting over the land gave them a right of ownership. We do not agree. Subject to the usual toll, the stool lands can freely be hunted over by all the subjects of the paramount stool, but in our opinion hunting can confer no right of ownership as between a stool and a subject. The plaintiffs further argued that they had sold lands there; that would not help their case, as they were selling Nto first went upon it; the land was clearly stool land, and the plaintiffs have never so occupied it as to enable the Court to say that it has been taken out of that category. In our opinion, judgment should have been given in the Court below for the defendants. We think that the judgment of the Court below should be reversed, and that judgment should be entered for the appellants, with costs here and below, except any costs with respect to the plea of res judicata in the Court below, which should be awarded to the plaintiffs.
Smith, J. adds that he possibly gave greater weight to the evidence of the Akuffo as to hunting and settlement, than the Full Court thinks should have been given.
Costs assessed at £101 2s. 6d.