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Ameoda v. Pordier and Ameoda v. Forzi and Others (CONSOLIDATED)
[1967] GLR 479.
Court of Appeal
10 July, 1967


APPEAL from a decision of Ollennu J. in which he dismissed the appellant's action for an order for recovery of possession of a piece of land, an injunction and damages for trespass. The facts are fully set out in the judgment of Apaloo J .A.

This appeal is from the judgment of Ollennu J. (as he then was) delivered in the High Court, Accra, on 30 March 1962, reported in [1962] 1 G.LR. 200. That judgment dismissed two claims brought by the appellant's family against two individuals to recover two separate pieces of land claimed to belong to the appellant's family at Ningo. The actions were consolidated and were numbered as 145/60 and 8/61 respectively.

Although it is possible that there might have been differences between the families of the appellant and the respondents in the past, what appears to have triggered off the present litigation was the refusal of the respondents to give to the appellant's family a cow. It was said by the appellant that an agreement was entered into between their respective predecessors in title by which the respondents' predecessors agreed in consideration of being permitted to live and pasture cows on the lands in dispute to give one cow each to the appellant's family. It was said the predecessors of the respondents did not implement this agreement before their demise and this agreement was sought to be enforced against their successors the present respondents. The latter did not only deny the agreements and their liability thereunder, but claimed that such agreement could not have been made inasmuch as the lands at no time belonged to the appellant's family. The lands, they claimed, belonged to the: stool of Ningo whose subjects their predecessors were and they said they lived on the hind in virtue of their customary right as subjects of the stool. The appellant's family who claimed the lands as their ancestral property, replied to this by orally revoking the respondents' license to remain on the lands. They followed this with a formal solicitor's letter which confirmed the revocation of the licenses and requested the respondents to vacate the land within seven days or face court action for ejectment and damages. The respondents did not comply and the sequel to it was this action in which the appellant's family claimed against each of the respondents, recovery of possession, perpetual injunction and damages.

As the respondents set up jus tertii as a defence, namely, that the title to the lands was vested not in themselves but in the stool of Ningo, it was necessary for this entity to join the action and establish [482] this assertion which the appellant's family seriously disputed. This position was appreciated and some time before the pleadings closed Nene Tei Doku Aguda III, the paramount chief of Ningo, applied to join the action. His avowed object for wishing to do so was to defend the interests of his stool and in paragraph (4) of his affidavit, he says, ``That to the best of my knowledge and belief, all that piece of land including Akwaaba and Tekpanya as described on the writ of summons is all Ningo stool land." The application was acceded to and he was accordingly joined to establish his stool's title to the lands in dispute. The appellant joined issue with the stool of Ningo on their claim of ownership and averred in paragraph (2) of the statement of reply that, ``the plaintiff emphatically denies that all lands at Ningo are stool or communal lands or both. Ningo lands are owned by various Ningo families and not by the Ningo stool.''

Thus as far as the ownership of the lands was concerned, the contest was between the appellant's family and the Ningo stool. Accordingly the learned trial judge was invited to decide as the first' issue in the summons for directions the question, ``Whether all Ningo lands are stool lands or Ningo lands are owned by various Ningo families?''

Accordingly, what began as a paltry claim for one cow became a serious land litigation between the appellant's family on one side and the stool of Ningo on the other. The question whether or not the respondents' predecessors agreed to give one cow each to the appellant's family as consideration for being permitted to live and pasture cows on the land or whether they were bound by custom to make such gift, became a secondary issue of relatively minor importance.

When the trial eventually opened, three members of the appellant's family related the tradition of how the whole of the land said to belong to the family came to be acquired. This was that the land was originally discovered by the appellant's ancestor by name Blebo Oketerchi Obunasem. This man was said to be a hunter and the appellant's tradition was that Obunasem killed the wild animals with which the land was then infested and built cottages on the land and generally reduced it into his possession. Evidence was then given of the devolution of this land from Obunasem for seven generations down to the present head of the family. The appellant's family also gave the boundaries of their land. This was before the trial reduced into a plan which was produced in evidence. The plan shows relics and farms of members of the appellant's family.

The appellant's family denied that the lands in dispute or indeed any land at Ningo belonged to the stool qua stool. According to he appellant, all the land is owned by the various quarters and [483] families the two words being used interchangeably. No fewer than six witnesses, almost all of them being holders of traditional office at Ningo, supported the appellant's evidence that the Ningo stool as such owned no land at Ningo and that the land is owned and has , always been owned by quarters and families. One of them by name Akwetey Kwaku who said his father was the linguist to the paramount chief of Ningo by name Nene Dzanma, swore that he had it by way of tradition from his father, that at one time, that mantse called all the asafoatsemei of the various quarters at Ningo to a meeting. At this meeting, it was said, the mantse requested the various quarters to place their lands under the stool but this request was declined. This evidence is supported by an annexure to a letter which Mantse Dzanma of Ningo wrote to the Secretary for Native Affairs dated 17 October 1917 and produced from official sources. In the annexure to that letter (exhibit G2), the mantse sought government's approval for ``laws" which he made for the benefit of Ningo. In paragraph (3) of those laws, the mantse sought to vest in himself title to ``all lands on the back or round the town" and he was prepared to have them from the owners, as he put it, ``whether for sale or lend." This evidence was obviously led to show that the mantse would not have sought permission to vest in his stool what, if the claim of the 'stool is well-founded, belonged to himself.

To clinch his case against the stool, the appellant also referred the court to pp. 29-31 of the report on Land Tenure in Customary Law of the Non-Akan Areas of the Gold Coast Colony, Part 1, Adangbe published in 1952 by R. J. H. Pogucki, then Assistant Commissioner of Lands. It would seem that this report was the result of a disinterested inquiry which Mr. Pogucki made into the land tenure of Adangbe areas. Ningo is one such area. The learned author found that in Adangbe areas, the stool qua stool owns no land nor exercises jurisdiction over land within its geographical area. This view, in so far as it relates to the ownership of lands in Ningo, was concurred in by John Jackson. The latter was, for a considerable time, a judge of the High Court of this country and until recently, a land boundary settlement commissioner. Mr. Jackson determined the boundaries of the lands of Shai, Ningo and Prampram and to do this, delved into the history of these people and their land tenure. In his ''findings" which were published in the Gazette Extraordinary (No. 1) of 3 August 1956, and to which the learned judge was referred, Mr. Jackson concluded at p. 1053 that:

``I can find no evidence to justify any finding that any proprietary interest in land, in respect of the land contained within the whole perimeter, as apart from any portion within it, is rested in any of the Shai, Prampram or Ningo Stools qua Stool." [484]

He however found, differing on this point from Pogucki, that these stools exercised jurisdiction over the land within its territorial limit. Thus, on the issue of title which was joined between the appellant and the stool of Ningo, the former led positive evidence that he, was the owner of the land and negative evidence that the Ningo stool was not and cannot have been the owner. Although the expressed object of Nene Aguda in joining the suit was to show that contrary to the appellant's claim, the proprietary interest in all land in Ningo and a fortiori the two pieces in dispute was vested in his stool, he led no evidence at all to show this. The result was that at the close of the case for both sides, all the evidence tendered on the very important issue of title was led by the appellant. Yet the learned trial judge felt able to conclude this issue in favour of the Ningo stool and arrived at the rather confident finding at p. 212 of the report that ``All lands in Ningo are Ningo stool lands" and at p. 207 ``that the land now in dispute is definitely part of Ningo stool land.''

Having decided the issue of title adversely to the appellant's family, the judge proceeded to hold that the respondents were not on the land by the leave and licence of the appellant's family but occupied the land by virtue of their inherent right as Ningo subjects to occupy vacant stool land. If the learned judge had accepted the case of the appellant and had decided that the lands on which the Akwaaba and Tekpanya villages are situated were the appellant's ancestral land, he would have been constrained to make a pronouncement on how the respondent's predecessors came to occupy the land. They must have entered into possession of these lands either because the owners alienated the lands to them by way of gift or sale or merely permitted them to live on the land. On the evidence in this case, the only legitimate finding could have been that the respondents' ancestors were let on the land by the leave and licence of the owners.

The learned trial judge also found against the custom propounded by the appellant, namely, that ``if a licensor gives his land to a licensee for cattle grazing, the licensee should give the licensor a live cow as consideration." The judge similarly rejected the appellant's evidence that the respondent's ancestors agreed to give one cow to the appellant's family in consideration of their being permitted to live and pasture cows on the land. This latter finding is a necessary sequitur and follows from the judge's finding that the ancestors of the respondents came on the land in their own right and not with the permission of the appellant's family. But as I said, whether there is such a custom about giving of a cow to a licensor or whether the appellant's family were entitled to claim this as a [485] right they acquired ex contractu, mattered little in view of the substantial issue of title which was raised in this case. The appellant's rights to the reliefs which he sought in this action arose by reason of the fact that the respondents deny his title to the land and this act entitles him to eject them from the land and recover damages against them if he succeeded in proving that he was 'the owner of the land and that they occupied it with his permission. Thus, the substantial issue which the learned trial judge had to decide and which he was specifically invited to decide in this case is: Who owns the lands in dispute? Do they belong to the Ningo stool or to the appellant's family? The answers to these questions seem to me to be the open sesame for the determination of the other subsidiary issues which arise in this case.

As I said, the learned trial judge decided the issue of ownership in favour of the stool and following from that, decided all the other subsidiary issues against the appellant. It is the appellant's complaint in this court that the learned judge was wrong in deciding the question of ownership in favour of the stool and that that finding was against the weight of evidence. It is not possible in this case to weigh the appellant's evidence against the Ningo stool's for the very good reason that that stool produced no evidence to substantiate its alleged ownership. The result is that the evidence of ownership is all one way. That however does not oblige the judge to decide the issue of title in the appellant's favour because it was open to him to hold either that the evidence of title produced by the appellant failed to satisfy him, that is, the appellant did not discharge the onus of proving his title or that the stool's ownership was proved by the mouth of the appellant and other evidence led by him. To decide this case simply on the ground that the appellant's action must be dismissed because he failed to discharge the onus of proof, would have been unsatisfactory since it would not have declared ownership in the stool and would still have left the issue of ownership in abeyance.

As the respondents against whom possession was sought themselves disclaimed any title to the land and asserted it in the stool, it was absolutely necessary to decide as between the appellant and the Ningo stool who is the owner of the land. The learned trial judge concluded the issue of title in favour of the Ningo stool apparently because he thought the evidence led by the appellant and his witnesses proved the stool's case. It is now necessary to consider whether he was right in so thinking.

After giving at p. 203 an unduly wide definition of what is stool land, i.e. ``any land in respect of which an occupant of a stool is the proper person to conduct its extra-territorial affairs," the learned judge proceeded to state the four methods by which such land may [486] be acquired and for this purpose based himself on Ohimen v. Adjei (1957) 2 W.A.L.R. 275. Of the four methods listed by him, the one; which seems to me relevant and that which the judge apparently applied was ``discovery of unoccupied land by hunters or pioneers of a stool and settlement thereon by the stool and its subjects." There is in fact no evidence that what is loosely called Ningo land was discovered by a hunter of any stool and that subjects of that stool thereafter settled on that land and thereby stamped it with the character of stool land. The judge seemed to have spelled that from some questions he addressed to the appellant and used his answers as justifying a conclusion that the Ningo land is stool land.

The judge asked the appellant a question to which the appellant replied that, ``The Ningo state was founded by one Dzanma,"and that, ``My father told me that the said Dzanma alone founded the state before all others came and joined him." The judge then proceeded to ask this pertinent question, ``If Dzanma and his people were the founders of Ningo state to whom would the Ningo lands belong originally?" and to this the appellant replied, ``The one who first came and settled on the land would own the land up to the boundary with a person from another place who settles on the land next to his." The answer to that question suggests that when the appellant said Dzanma founded the state of Ningo all he meant was that he was the first person to settle on the land which in course of time grew into the town of Ningo. A state, in ordinary language, is an organised political community with an organised government. Salmond defines it as ``an association of human beings established for the attainment of certain ends by certain means." If the evidence in this case is any guide, Dzanma seemed to have settled on what is now known as Ningo about 300 years ago, and it seems to me somewhat unreal to talk about the founding of a Ningo state at that , time. That Ningo cannot have been anything approaching an organised political community until comparatively recently, is shown by the fact that in his letter of 17 October 19 17, to the Secretary for Native Affairs, Chief Dzanma of Ningo said he had been elected head chief of all Ningo only the previous month but that prior to that, the town of Ningo had no chief of its own but had been under ``Manche Tackie of Accra and Noye Ababio of Christiansborg." I think therefore that the appellant stated the correct factual position when he said in substance that Dzanma owned as much land as he was himself able to reduce into his possession and other settlers who came after him reduced adjoining areas into their occupation and acquired title to them independently of Dzanma.

The learned trial judge seemed to have put wholly disproportionate weight on evidence given by the appellant and his witnesses [487] that in olden days if the people of Ningo were attacked by an enemy, they would request assistance from the chief to repel the enemy, and in particular, he laid great stress on the fact that when there was , litigation between the subjects of Ningo and Ada about land called Wekumagbe, the former reported this dispute to the Mantse of Ningo. The judge thought it unreasonable that the' chief could have had a duty to protect the land without having a corresponding right to its beneficial enjoyment. But, for my part, I cannot see what is unreasonable about the chief who is said to be a ``state umbrella" covering all the lands, marshalling' his subjects to defend land belonging to his subjects. But it cannot be supposed that the chief himself would be expected to fight to protect the land. This would ordinarily be done by his subjects, so that in the end, it is the subjects who fight to retain their land. In any event, I should have thought if the subjects owed a duty of allegiance to their stool, it is only reasonable to expect that they would have a correlative right to the protection of themselves and their property from the stool in time of danger. The fact that although the Ningo chief is admitted to be the ``controller of all the Ningo lands" he has no beneficial interest in it qua chief, is shown by what happened when the dispute between the Ningos and Adas about Wekumagbe lands was brought to his notice. Hago Taffa testified that:

``Yes the Adas are litigating with us over the Wekumagbe lands, they claim ownership of it. We reported the matter to the Ningo mantse. He said he does not enjoy anything from Kabiawe tribe, so we should deal with it ourselves. So we are carrying on the litigation ourselves."

The Ningo mantse was not put in the witness-box to deny this evidence.

In sustaining the stool's title to the lands in dispute, the learned trial judge specified certain acts as consistent only with the stool's ownership of the land and inconsistent with the appellant's family's title thereto. For instance, he referred to the evidence that when the government was about to acquire an unspecified part of the land in Ningo, the Ningo mantse made the grant. But this grant (exhibit 3) was, on the face of it, concurred in by almost all the asafoatsemei who were admitted to be the heads of the various quarters. It is difficult to see how it proves that all the land in Ningo belong to the mantse especially if the fact is borne in mind that the mantse himself hails from a quarter which is conceded to own land. The learned judge also pointed to what he described as ``uncontradicted evidence" that it was the Ningo mantse who permitted the military authorities to establish a target range and military camp on portions of the land [488] in dispute. It is not suggested that any compensation was paid to and appropriated by the mantse for this nor is there evidence that the appellant knew that the mantse granted permission to the military , authorities to make use of the land. The appellant admitted that ``there is a military target range on portion of the land" but he explained that, ``I do not know that it was the Ningo mantse who gave that portion to the government. I am surprised to hear that". Nobody was put in the witness-box to contradict that. Yet the learned judge held, to quote his own words at p. 206, ``No one ever disputed the right of the mantse to make those grants." It is not clear to me how the appellant could be expected to dispute the granting of permission about which he was unaware. In my opinion, none of these equivocal acts shows that all the land in Ningo belong to the stool. I think the contrary evidence is weighty and impressive.

The elders of Ningo some time in 1958 had cause to desire the, destoolment of the Ningo Mantse Nene Aguda III. Accordingly, on 17 June of that year, they preferred destoolment charges against him. One of the signatories to the charges was Blerbo Oketerchi who is an asafoatse from the appellant's family. The first of the eight destoolment charges alleges, in substance, that Nene Aguda, as trustee of Ningo stool lands in breach of trust, signed a certain document in which he transferred a portion of Ningo stool land to the stool of Prampram. The learned trial judge held at p. 207 that, ``That document is an unqualified admission that the lands at Ningo are Ningo stool lands." The learned judge did not give any reason why he thought the document an unqualified admission against interest. One can only surmise that he took this view because the Ningo land was referred to in the document as ``Ningo stool lands." The document on the face of it, shows that it was prepared by a letter-writer and was merely marked by Oketerchi. Mr. Pogucki recorded in his report that although the conception of stool land, strictu sensu, is unknown in the Adangbe area, that term is sometimes used as a colloquial expression. It seems to me that that was the sense in which the word ``Ningo stool lands" was used in the destoolment charges. In my opinion, it would not be right to hold that an illiterate was liable to lose his ancestral property because a letter writer whom he commissioned to write for him used a colloquial expression whose legal purport such illiterate neither understands nor appreciates. I do not think that the words ``stool land" used in the destoolment charges can properly be regarded as an admission against interest binding on the appellant's family and on this score, I find myself in respectful disagreement with the learned trial judge.

What, to my mind, can properly be regarded as an admission against interest binding on the Ningo stool, is the letter of 17 October [489] 1917, written by the then occupant of the Ningo stool to the Secretary, for Native Affairs. In the annexure to that letter, the chief of Ningo sought government's assistance to approve a law. which he made for the benefit and good government of Ningo so that" All lands on the back or round the town must be given out to the head chief by the owners (whether for sale or lend) . . . " It cannot be supposed that the first head chief of Ningo was unaware that all Ningo lands belong to himself qua chief. Yet he was seeking authority to take from the owners land which by his description must be vacant land. It seems to me to offend against reason for a chief to wish to buy or lend from others what belongs to himself. Common sense strongly suggests that the chief of Ningo wrote in that manner, because he well knew that those lands belong to persons other than his stool. A letter written in that manner and in those circumstances, must, to my way of thinking, be an admission against interest. Yet the learned judge held at p. 207 that that document ``is not an admission against the interest of the stool," and proceeded to explain away the object and purport of that document by an argument which begs the question. The judge said that to contend that that document was an admission against interest ``shows misconception of the customary law with respect to the rights of a subject in stool land." The judge then proceeded by reference to decided cases to state such rights. But whether the lands are stool lands or not was the issue in controversy and to proceed to explain away the document by an argument which assumes that the lands are in fact stool lands would seem to me to beg the question. The learned judge also took it upon himself to explain why Nene Dzanma wrote such a letter well knowing that the land was stool land. I should have thought that the best person to make such an explanation was the present occupant of the Ningo stool who by his own choice was joined to this action. The Ningo mantse elected to offer no explanation about this document presumably because he thought it inexplicable. In my opinion, that unexplained letter is an admission against the interest of the Ningo stool and the learned judge's contrary conclusion is unsound.

As pointed out earlier, Messrs Pogucki and Jackson each in turn made a study of the land tenure ,of Adangbe areas and both were ad idem in thinking that the stool qua stool has no proprietary interest in the land within its territory in these areas. It is the same fact that a succession of witnesses of standing in Ningo asserted before the learned trial judge. Like the oral testimony of the witnesses, the learned judge rejected the opinions of these two gentlemen. With regard to Mr. Pogucki, the judge made a veiled criticism of him because he did not disclose the sources of his information but, in the end, the judge thought he must have been misled by a system of [490] land dealing prevalent in some parts of Shai and Manya Krobo, called Huzu. The judge did not say in what respect Pogucki erred in the view he formed of the land tenure. It is not suggested that the re- port was in any other way inaccurate and it must be obvious that Mr. Pogucki would in the course of his research, seek information from knowledgeable persons in the locality. At the time when he made his 'inquiries, there was apparently no dispute and there was no reason why the persons who supplied him with information would wish to say anything other than the truth. I think information gathered by a dispassionate inquirer and reproduced by him into an objective report such as the one produced by Pogucki is more likely to be accurate than inaccurate. In my opinion, the learned judge gave no valid reason for thinking that Mr. Pogucki's view of the land tenure was inaccurate.

With regard to Mr. Jackson's opinion of the land tenure, the judge thought it was so subsequently qualified as to be practically valueless. The judge quoted a long passage from Jackson's findings of what he considered to be the qualification of his expressed opinion, and said no more about it. With respect, Mr. Jackson did not in fact qualify his view on this matter. Jackson said at an early stage of the inquiry that as ``a general rule an Adangbe stool possesses no proprietary interest in its lands." It is the same view that he expressed at the tail-end of his ``Findings." What the judge thought was a qualification was in fact Mr. Jackson's view that although the stool qua stool owns no land in Adangbe areas, the stools possess in varying degrees an inherent right to their management and control. That is what Mr. Jackson defined as jurisdictional as opposed to proprietary interest. It is in fact on this point that the view of Pogucki and Jackson diverged. I think the learned trial judge was in error when he thought Mr. Jackson qualified his opinion of the land tenure in Adangbe areas. The result is that both Pogucki and Jackson independently put the weight of their somewhat authoritative opinions behind the appellant and his witnesses who testified that the Ningo stool as such owned no land at Ningo. I think I must therefore concur in the contention of counsel for the appellant that the, learned judge was wrong in holding ``that all lands in Ningo are' Ningo stool lands." Indeed counsel for the respondents who for a while argued in support of the judge's finding on this score, in the end, abandoned this argument and frankly conceded that he thought, on reflection', that the learned judge's finding in this respect was wrong.

If the lands in dispute do not and cannot belong to the stool of Ningo to whom do they belong? They cannot be without an owner since it is a principle of customary law that every inch of land in this [491] country is owned by a stool, tribe, family or individual. The appellant's family claim that it is the owner of these lands by original settlement. They gave evidence not only of their root of title but the devolution of that land for seven 'generations. The plan which was made pursuant to the order of the court shows that all the acts of ownership performed on this land were made by the appellant's family. There is also reliable evidence that on at least one occasion, they ejected one Tetteh Yumu who trespassed on a portion of the land and was working on it with a caterpillar. A witness by name Tei Nartey Bosobuahene testified to having a common boundary with the appellant's family on the land in dispute and such boundary is shown on the plan (exhibit E). Another witness called Dumah, swore that he owned a cattle kraal on a portion of the land in dispute and his father obtained the land from the appellant's family to make the kraal. That area is called Hanyawayo and appears on the plan. In my opinion, the evidence of title produced by the appellant's family, is as good as 'evidence of title can be. The respondents for their part, admit want of title in themselves to the lands on which the villages of Akwaaba and Tekpanya lie. I think, in these circumstances, the learned judge ought to have adjudged the appellant's family the owner of the land shown in the plan (exhibit E) and edged yellow and in particular, the two pieces in dispute. I do so adjudge them and accordingly answer the first question settled in the summons for directions as follows: The lands in Ningo are not stool lands but are owned by families or quarters and that the lands in dispute belong to the appellant's family.

If that is a right conclusion to reach on the evidence, the question which falls to be answered is : How do the respondents come to be on the appellant's family land? On this, the evidence seems extremely straightforward. With regard to the Akwaaba land, it was deposed that the appellant's ancestor by name Adame permitted Pordier to live on the land and rear cattle. He remained on the land for that purpose for many years and died recently. He at no time disputed the appellant's family's title. His son Nartey Pordier has since his father's death stepped into his shoes and like his father before him, has been rearing cattle on the Akwaaba land until events which gave rise to this litigation.

According to the evidence, the respondent Kudayi Forzi came to live on the Tekpanya land in similar circumstances. His father Forzi was said to have come from Akwiem where he was alleged to have been responsible for causing the death of many persons by juju. He was then said to have been expelled from Akwiem. He therefore came to Ningo and was permitted by the appellant's ancestor by name Gaga Galo to live on the Tekpanya land and rear [492] cattle. This he did until his death some years ago. Not only did the ' Forzis not question the appellant's title to the land, but there is evidence that the respondent Kudayi Forzi expressly acknowledged' it. Evidence was given that about five years before the action, one, ' Yumu trespassed at a place just north of Tekpanya and while he was in the course of clearing it with a caterpillar, Kudayi Forzi sent his nephew by name Kweitey Kofi to apprise the appellant of the trespass. The appellant reacted promptly by restraining the trespasser with a customary oath and when he persisted in the trespass caused him to be prosecuted.

By virtue of the permission which was granted to the respondents' predecessors, the latter and after them, their successors, were entitled to live on the Akwaaba and Tekpanya lands as long as they continued to acknowledge the title of the appellant's family. Should they at any time dispute it, the appellant's family will be within their customary rights to revoke their licences and eject them. In the event of their continuing to remain on the land after the revocation of their licences, they would become, in the eyes of customary law, trespassers, and would be liable in damages at the suit of the apell-nlant's [sic] family: see Kuma v. Kuma (1936) 5 W.A.C.A. 4. On the undisputed evidence, the respondents denied the title of the appellant's family to the lands in dispute and asserted it in the Ningo stool and as events show, unsuccessfully. They thus obliged the appellant's family to launch expensive litigation to establish their title. The appellant's family were therefore entitled to revoke their licences and request them to vacate the lands. On the unchallenged evidence they did so but the respondents refused to leave. The appellant's family are therefore entitled, as against them, not only to an order for recovery of possession, but an injunction must also go to restrain them after giving up possession from trespassing on these lands. They are also entitled against them both to damages for trespass. Accordingly, in my judgment, the appellant's family were entitled to the remedy which they sought and the learned trial judge was wrong in denying it to them.

As the respondents were admitted to have been on the land for many years and own property there, I think they should be given a reasonable time to vacate the lands and remove their possessions therefrom. Time will also, I think, enable them to enter, if they so wish, into agreement with the appellant's family as to any terms on which they might be permitted to continue to remain on the lands in dispute. For this reason, I would stay execution in respect of the orders of possession and injunction for a period of six weeks from the date of this judgment. [493]

Accordingly, I would allow the appeal and set aside the judgment appealed from. In lieu of it, I would, in suit L145/60, make against ,Nartey Pordier, an order for recovery of possession of all that piece of land known as Akwaaba land and more fully described in the , schedule to the writ. I would also make, as prayed, an order of perpetual injunction restraining the said Nartey Pordier, his agents, servants and assigns from pasturing cows on the said Akwaaba land or in any manner dealing with that land. I would award against the said Pordier £G100 damages for trespass.

In suit No. L8/61, I would make similar orders against Kudayi Forzi and Mauna Forzi in respect of the Tekpanya land and would , award against them damages of a like amount. In both suits, I would grant a stay of execution in respect of the orders for possession and injunction for a period of six weeks from this day.

The appellant's family are entitled against both respondents as well as the Ningo stool, to their costs in the High Court. These are considerable. Using the costs awarded to the respondents in that court as a guide, I would order that the appellant's family recover from both respondents and Nene Tei Aguda III, costs assessed at �G800 or N�1,600. They will also have their costs in this court.

I agree, and I have nothing to add to the full and well-reasoned judgment of my brother Apaloo. I would also allow the appeal for the same reasons given by him.

I agree that this appeal should be allowed. The issues, the law and the evidence have been dealt with by my brother Apaloo with his usual clarity and in language I can hardly hope to equal. However, there is one observation I would like to add. I make it with some hesitation as the learned trial judge is recognised as an authority on this particular branch of the law. I think the learned trial judge was influenced to a considerable extent In his final conclusion by a definition of stool lands which he formulated for his guidance: see [1962] 1 G.L.R.200 at p. 203. To me that definition appears too wide for the purposes of the case he had before him. It took the following form:

``Now what in customary law is meant by `stool land'? By stool land we mean, land owned by a community, the head of which occupies a stool, such that in the olden days of tribal wars the said head of the community carried the ultimate responsibility of mobilising the community to fight to save it, and in modern days to raise money from the subjects to litigate the community's title to the land. We may put it in another [494] form, any land in respect of which an occupant of a stool is the proper person to conduct its extra-territorial affairs is ,stool land. The occupant of the stool may not be the appropriate internal administrative authority, e.g., the stool may not be the appropriate authority to make direct grants of portions of the ' land to subjects, that right may be vested in a subordinate authority, e.g., a sub-stool, quarter, a village councilor in a family; but so long as the extra-territorial relations, e.g., settlement of the boundaries of any particular land with land occupied by adjoining states or communities vests in the occupant of the stool, i.e. in the community generally and not in section of it, that land is stool land.''

The first sentence in answer to the question posed by this passage need not raise any eyebrows in a case involving land ownership. But from then on the language used is the language of international relations. It is suggested that if the stool occupant bas the responsibility for conducting the extra-territorial affairs in relation to land then the land is stool land. This may be 'so if the expression stool land is used in a loose sense denoting land under the jurisdiction of a particular stool. For land subject to a stool for the purposes of the conduct of extra-territorial affairs must at least be under the jurisdiction of that stool. But that is totally different from saying that the lands in question are stool lands in the other and more limited sense, namely, that the stool has proprietary rights in those lands. Jurisdictional interest of a stool in land may also carry with it a proprietary interest in the same land. But this cannot be an invariable consequence. This fact appears to have been partially recognised in that part of the definition where the learned judge said that although the stool may be responsible for the conduct of the extra-territorial affairs of the land, it may not be the appropriate authority to make direct grants of portions of the land to subjects; that right being sometimes vested in a subordinate authority,e.g. a sub-stool, a quarter, a village council or a family. A normal incident of ownership is the right to make a grant of the property. When that right is vested in one body, and a subordinate body at that, while ownership is said 1O vest in another, doubts must naturally be cast on the nature of the title of the latter. The right to conduct the extra-territorial affairs of a state (or traditional area) must depend more on the establishment of the fact of complete political control coupled with recognition of this fact by other states with whom relations are entered than on the ownership of the land within the state.

The evidence before the learned trial judge was that the lands in Ningo were not owned by the stool. As has been pointed out in the [495] judgment of my brother Apaloo this evidence was supported by the independent investigations of two distinguished jurists made long , before the instant dispute arose. Nor is it a peculiarity of the Ningo Traditional Area (as the states are now called) that bodies other than the stool own the land. Messrs. Jackson and Pogucki had found that the Adangbe Traditional Areas generally ,conform to that pattern. And apparently other non-Akan areas of Ghana also have this system whereby ownership of land is divorced from the jurisdictional interest of the stool over the land.

In Dr. Kwamena Bentsi-Enchill's Ghana Land Law, pp. 13-14 appear these passages:

``To the question, `Who is the allodial owner of the land?' the answer varied and still varies from state to state and probably depends largely on how each state came to be formed. Most of the principal peoples now occupying the territory of Ghana-or their significant governing elements-migrated into the country between the fourteenth and seventeenth centuries. Some settled in areas where they had to conquer previous settlers; others, especially in the forest belt, appear to have found largely , unoccupied areas. The process of state-building seems to have been activated primarily by the needs of self-defence, as the story of the overthrow of successive hegemonies seems to show. And it could be that lands acquired through the organised effort of an already existing state tended to be regarded as the. property of the whole state community, whereas in case of a state formed by coming together of land-owning communities, the ownership of the land was regarded as remaining with the constituent units.''

The learned author continued at p. 14:

``Thus we find that in some states, such as Akyem Abuakwa and each of the constituent states of the Ashanti Confederacy, the fundamental answer to the question who is the owner of the land is that the land in effect belongs to the state or to the whole community, i.e., that the ownership of the land is vested in the state. This answer might be expressed in a variety of ways, such as, for example, that the land is attached to the paramount stool, or that it is the property of the whole `oman', or of the `omanhene', or even of the ancestors of the particular community. However expressed, the basic principle in such areas is that allodial title to land within such a state can be transferred only by the Ohene or omanhene of the state, acting with the consent and concurrence of his principal elders and councilors, i.e., by the `management committee' of the said stare.'' [495]

Then at p. 16 the author describes the other type of land .ownership in this manner:

``In most other states of Ghana, there is no such basic notion .of what has been called 'state ownership' above. The principal owners of land-absolute or allodial owners thereof-are clans or extended families, or village communities, i.e., communities or groups smaller than the whole state which have the competence to transfer allodial title through their 'management committees' without reference to any overlord. To be sure, these clans, or extended families, or village communities, as members of a particular state, owe allegiance to the governing authority of the state and are subject to its jurisdiction. And jurisdiction is exercised in ways which have profound effects on title, such as (in modern times) legislation concerning forest reserves, town and country planning, conditions of alienation, protection of tenants, and compulsory acquisition; or (in ancient' times) prohibitions as to farming on certain days, the .obligation far military service and contributions in time of war, rights concerning treasure trove and animals killed by hunting. As a result, the distinction between the obligations of allegiance and proprietary rights can become blurred. Nevertheless the title of such families to their land are regarded as independent and allodial.''

These passages draw well the distinction between states or traditional areas where the land is owned by the stool and those where it is not. And the learned author throws his weight on this point in support of Messrs. Jackson and Pogucki, who in turn support the plaintiff's case. Where the land is not owned by the states the distinction is equally clearly drawn between the jurisdictional interest of the stool and the proprietary rights of the smaller land-awning communities. That these distinctions exist is, in my view, beyond question. I therefore think that a definition of stool land adopted and applied in a suit involving land ownership which denies the existence of these distinctions, as indeed the definition formulated by the learned judge does, and which practically makes every piece of land aver which a stool exercises jurisdiction, land awned by the stool, must be wrong. Speaking for myself, I find it difficult to accept that the entitlement of a stool to settle the boundaries of any particular land with land occupied by an adjoining state, makes the land whose boundaries are settled stool land. The disputing stools may be doing no mare than settling the areas of their jurisdiction. But the definition makes the right to settle this question the hallmark of ownership by thestool [sic]. [497]

An example .of how this definition was applied to the prejudice of the plaintiff in this case may be found in the learned judge's treatment of the destoolment charges which were brought in 1958 against the occupant of the Ningo stool, Nene Tei Aguda III. It will be recalled that one of the signatories to the charges was the asafoatse of the plaintiff's family. After quoting at p. 207 the first charge, which is as follows:

``That he as Manche (Paramount Chief of Great Ninga and Priest (Wono)), of the State Deity Djangey (Fetish), occupant of the Great Ningo State Stool and a Trustee of Ningo Stool lands therefore charged with the Dual Office and duties of a paramount chief's administration (Manche), and Priest of Fetish Djangey did agree and signed a certain Document with the State of Prampram transferring part or portion of the Ningo Stool land to the Stool .of Prampram and by virtue of the said Document, part or portion of Ningo Stool ,land has been released or added to that of the stool land of Prampram without the knowledge and consent of the Elders and people .of Great Ningo contrary to the oath of fidelity sworn to the State at the time of his installation, that he will never do anything involving the State without the knowledge and consent of the Elders and people of the State,''

the learned judge went on to say: ``That document is an unqualified admission that the lands at Ningo are Ningo stool lands.'' I am afraid I differ from this view. The charge can only be regarded in that light if the alleged transaction between the stools of Ningo and Prampram transferred not only jurisdiction over the piece of land referred to but proprietary interest as well. Incidentally, the stool of Prampram, like the stool of Ningo, is one of the stools which both Messrs.Jackson and Pogucki found owned no land qua stools. The charge is, at best, an equivocal statement of the nature of the transaction. The chief is said to have acted ,``as Manche (Paramount Chief of Great Ninga and Priest (Wono)) of the State Deity Djangey (Fetish), .occupant of the Great Ningo State Stool and a Trustee of Ningo Stool lands therefore charged with the Dual Office and duties of a Paramount Chief's administration (Manche), and Priest of ' Fetish Djangey.'' Was the chief supposed to have transferred the land as trustee or in exercise of his duties ``of a paramount chief's administration" ? The passage is not clear on the point. And even if as trustee, is the word here being used in the strict English sense? I am unable to accept this as an unqualified admission that the proprietary as distinct from the jurisdictional interest in the lands vested in the stool. And in so far as the view the learned judge took [498] of this charge contributed to his conclusion that the land in dispute is Ningo Stool land, that conclusion must to that extent, be vitiated.

However, as I began by saying, my brother Apaloo has given a, comprehensive review of the reasons why this appeal must be allowed and in those, I concur.

Appeal allowed.
D. R. K. S.

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Josh DuBois 2004-12-01