HOME   UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2010

 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2010

 

AWULAE ATTIBRUKUSU III  VRS. OPPONG KOFI ,ARDE, EMMANUEL YANKSON KWOFIE, OWUO, ISHACK KORNEH CIVIL APPEAL NO. J4/27/2009 29TH APRIL, 2010  

 

CORAM   

 

BROBBEY, JSC (PRESIDING) DR. DATE-BAH, JSC ADINYIRA (MRS), JSC BAFFOE-BONNIE, JSC  ARYEETEY, JSC                           

 

 

 

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Land – Stool lands - Recovery of possession - Damages for trespass - Perpetual injunction - Revocation of the Declaration Instrument - Allodial ownership - Possessory or Usufructuary ownership - Possession of vacant land - Forfeiture of the land

 

HEADNOTES

 

The plaintiff is Omanhene of the Lower Axim Traditional Area and belongs to the Royal Nvaviley Family of Lower Axim who are the owners of Lower Axim stool lands The ancestors of the defendants who belonged to the Royal Nvaviley Clan but were not immediate family members of the plaintiff’s Nvaviley Royal Family came from Abassie in  the Ahanta area. The ancestors of the plaintiff by name Ebriku and King Kweku Kyina I granted permission to the ancestors of the defendants to farm on various portions of the land including an area called Kudu Bolofo. The plaintiff who was enstooled Omanhene in 1987 is a successor to a long line of chiefs who had been in possession and control of Lower Axim Stool Family lands of which the land in dispute is a part from time immemorial. The land in dispute has been the subject of several concession enquiries and litigations involving the plaintiff’s stool. As owners of Lower Axim Stool Lands, occupants of the stool in consultation with principal members of the family appointed certain individuals not necessarily members of the Nvaviley Royal Family as Odikro, Headmen etc. to oversee the interests of the Royal Family over the lands. These included the chief of Ewoku. In spite of the plaintiff’s stool family’s dealing with the land as owners in the form of mining and timber concessions over the years and their involvement in several litigations over the land in dispute, the defendants’ late head of family, Adia Kpole caused to be published a Statutory Declaration over the disputed land purporting to be Ewuku Nvaviley Family lands. The plaintiff contends that the said Statutory Declaration, which was made at a time when there were cases pending at the High Court Sekondi involving the parties over portions of the disputed lands, was calculated to deceive the general public and therefore null and void. It is also alleged that soon after the Statutory Declaration, the defendants alienated portions of the disputed land to individuals and organisations and had the documents covered by the grants signed by Omanhene of Ahanta Traditional Area who has no jurisdiction over Lower Axim Lands. In their pleading the defendants stated categorically that it was their ancestors called Arizi, Kwadoh, Kaku Kyinah, Kofi Tsea who were all members of the Royal Navivaley family of Ewuku who cultivated the land when they joined their sister Azia Mansah who had earlier founded the village of Ewoku. They planted food crops on the land and after their death the portions of the land they had cultivated were given to both family and non-family members for planting coconut and palm trees. Apparently, for the use of the land they paid tribute in the form of food crops to the plaintiff stool during Kuudum Festivals. They stopped the practice of paying tribute to the plaintiff’s stool when the plaintiff’s predecessor took action against their predecessor.  They contend that the land in dispute belongs to them and they had dealt with it long before the Statutory Declaration. The High Court concluded that the defendants have not deliberately challenged the plaintiff’s allodial interest in the land to be deprived of their possessory rights over Ewuku land. The plaintiff appealed before the Court of Appeal The appeal was allowed

 

HELD

 

Even though we are of the view that the Court of Appeal based its decision inappropriately on forfeiture of the land granted to the defendants’ family which the plaintiff did not ask for, we still share the opinion that taking into account the totality of the evidence adduced at the trial and the reasons given in this judgment the appeal ought to be dismissed. We therefore dismiss the appeal. However, in place of the orders given by the Court of Appeal in its judgment we make the following orders: (i) Declaration of title to all that piece and parcel of land described in relief (a) of the plaintiff’s claim, subject to the rights of the defendants’ family as holders of the determinable or usufructuary title in respect of the land granted to them at Ewuku. For the avoidance of doubt, the areas outside the land granted to the defendants’ family by the plaintiff’s stool are declared in favour of the plaintiff’s stool. (ii) In place of reliefs (b) and (c) of the plaintiff’s claim we make an order for the defendants and their grantees in areas beyond the environs of Ewuku to negotiate with the plaintiff for terms of their occupation of lands on which they have trespassed. (iii) We grant the order for perpetual injunction against the defendants, their agents, servants, assigns and workmen etc. in respect of the lands outside the area of the defendants’ family’s grant at Ewuku.  (iv) Declaration that the Declaratory Instrument described in relief (f) of the plaintiff’s claim is null and void and of no effect.

 

STATUTES REFERRED TO IN JUDGMENT

Statutory Declaration Act 1971 Act 389

CASES REFERRED TO IN JUDGMENT

Awuah vrs. Adututu [1987-88] 2GLR 191

Koglex [No. 2] v. Field  [2000] SCGLR 175

Vanderpuije v. Adam [1961] GLR (Pt II) 733

Nyame v. Yeboah [1961] GLR 281, S.C.

Feli v. Akessse (1931) 2 W.A.C.A. 46, P.C

 

BOOKS REFERRED TO IN JUDGMENT

 

DELIVERING THE LEADING JUDGMENT

ARYEETEY, JSC:

COUNSEL

W. A. N. ADUMUA-BOSSMAN FOR THEDEFENDANTS/RESPONDENTS/

APPELLANTS.

KODWO ERSKINE FOR THE PLAINTIFF/APPELLANT/RESPONDENT

 

                     

 

 

                                                                           J U D G M E N T

______________________________________________________________________________________

 

 

ARYEETEY, JSC:

 

 

In this judgment we would refer to the plaintiff/appellant/respondent as the plaintiff and the defendants/respondents/appellants as the defendants. The endorsement on the plaintiff’s writ of summons which was issued on 17th June 1996 in his claim against the defendants is for the following reliefs:  

a)    Declaration of title to all that piece and parcel of land situate, lying and being within Lower Axim Traditional Area in the Western Region of Ghana measuring 15 square miles and bounded on the North by the Main Axim-Takoradi Motor Road, on the South by the Agyambra Stool Lands, on the West by Domunli/Agyan and Akonu Stool Lands and on the East by Agyambra and Abura Stool Lands;

b)    RECOVERY OF POSSESSION;

c)     DAMAGES FOR TRESPASS;

d)    PERPETUAL INJUNCTION against the defendants, their agents and/or servants, assigns and workmen etc. from interfering with the plaintiff and the Royal Nvaviley Family of Lower Axim and the stool’s possession occupation and enjoyment of the said land;

e)    AN ORDER to set aside/or for the revocation of the Declaration Instrument dated 22nd August, 1984 and marked as SDI.924/84 made in favour of ADIA KPOLLEY (deceased) the predecessor of the 1st defendant and the then head of the Nvaviley Family of Ewoku for and on behalf of Ewoku Nvaviley Family of Ewoku in respect of the land described in paragraph (a) of the claim above.  OR  ALTERNATIVELY

f)      A DECLARATION that the Declaratory Instrument dated 22nd August, 1984 and marked as SDI.924 made in favour of ADIA KPOLLEY (deceased) the predecessor of the 1st defendant and the then head of Nvavilley Family of Ewoku for and on behalf of Ewoku Nvavilley Family… in respect of the land described in paragraph (a) of the claim above is null and void and of no effect.

 

The plaintiff is Omanhene of the Lower Axim Traditional Area and belongs to the Royal Nvaviley Family of Lower Axim who are the owners of Lower Axim stool lands. The land in dispute forms part of Lower Axim Paramount Stool lands. The plaintiff sues for himself and on behalf of the Royal Nvaviley Stool family. In his pleadings he gives the background of his claim as follows: The ancestors of the defendants who belonged to the Royal Nvaviley Clan but were not immediate family members of the plaintiff’s Nvaviley Royal Family came from Abassie in  the Ahanta area. The ancestors of the plaintiff by name Ebriku and King Kweku Kyina I granted permission to the ancestors of the defendants to farm on various portions of the land including an area called Kudu Bolofo. The plaintiff who was enstooled Omanhene in 1987 is a successor to a long line of chiefs who had been in possession and control of Lower Axim Stool Family lands of which the land in dispute is a part from time immemorial.

 

The land in dispute has been the subject of several concession enquiries and litigations involving the plaintiff’s stool. As owners of Lower Axim Stool Lands, occupants of the stool in consultation with principal members of the family appointed certain individuals not necessarily members of the Nvaviley Royal Family as Odikro, Headmen etc. to oversee the interests of the Royal Family over the lands. These included the chief of Ewoku. In spite of the plaintiff’s stool family’s dealing with the land as owners in the form of mining and timber concessions over the years and their involvement in several litigations over the land in dispute, on 22nd August 1984, the defendants’ late head of family, Adia Kpole caused to be published a Statutory Declaration over the disputed land purporting to be Ewuku Nvaviley Family lands. The plaintiff contends that the said Statutory Declaration, which was made at a time when there were cases pending at the High Court Sekondi involving the parties over portions of the disputed lands, was calculated to deceive the general public and therefore null and void. It is also alleged that soon after the Statutory Declaration, on 22nd August 1984, the defendants alienated portions of the disputed land to individuals and organisations and had the documents covered by the grants signed by Omanhene of Ahanta Traditional Area who has no jurisdiction over Lower Axim Lands.

 

In their pleading the defendants stated categorically that it was their ancestors called Arizi, Kwadoh, Kaku Kyinah, Kofi Tsea who were all members of the Royal Navivaley family of Ewuku who cultivated the land when they joined their sister Azia Mansah who had earlier founded the village of Ewoku. They planted food crops on the land and after their death the portions of the land they had cultivated were given to both family and non-family members for planting coconut and palm trees. Apparently, for the use of the land they paid tribute in the form of food crops to the plaintiff stool during Kuudum Festivals. They stopped the practice of paying tribute to the plaintiff’s stool when the plaintiff’s predecessor took action against their predecessor.  They contend that the land in dispute belongs to them and they had dealt with it long before the Statutory Declaration.

 

JUDGMENT OF THE HIGH COURT

In his judgment, dismissing the plaintiff’s claim, the learned trial High Court Judge stated at pages 148 and 149 of the record of appeal as follows:

“It must be observed that P.W.2, Nana Agona Miezeh I, the chief of Agona and P.W.3, the abusuapayin of Kona Abradze family of Dadwen otherwise known as “Alongoba” family testified that their respective lands belong to the plaintiff herein being the Omanhene of Lower Axim Traditional area, their respective lands falling under Lower Axim stool. However they all conceded that at the time their ancestors entered the land, the lands were virgin forests and that it was the Omanhene of Lower Axim who permitted their respective ancestors to enter the land. In my view the “ownership” they conferred on the plaintiff and for that matter on Lower Axim stool is nothing but an assertion of their recognition of the Lower Axim stool as the allodial estate holder. This is quite distinguishable from their respective determinable possessory interest they hold on the land. For instance, the Omanhene of Lower Axim cannot alienate their land without their consent and any alienation made must also be made known to the Omanhene by way of tribute. In other words, the recognition of the allodial interest the Omanhene of Lower Axim enjoys is what is expressed by the tribute and the homage they pay to him especially during special occasions like the the Kundum festival.

 

In this case after evaluating the evidence as a whole, it is my view  that the defendants’ family, having descended from Komele Azia Manzah who was granted permission to live and settle on Kodubolofo and later Ewuku land about 150 years ago, seem to have acquired an estate in Ewuku land which the law recognizes as usufructuary, possessory or determinable title and importantly this interest co-exists and indeed simultaneous with the Lower Axim stool’s absolute ownership otherwise described as allodial.”

 

The trial court then went ahead and drew the distinction between “the allodial ownerhip of land along with the rights that go with it and the possessory or usufructuary ownership of land plus its incidents as clearly spelt out in holding 4 of the case of AWUAH VRS. ADUTUTU [1987-88] 2GLR 191 at 193”. He concluded that the defendants have not deliberately challenged the plaintiff’s allodial interest in the land to be deprived of their possessory rights over Ewuku land. The plaintiff appealed and his sole ground of appeal before the Court of Appeal was that “The judgment was against the weight of evidence”.

 

JUDGMENT OF THE COURT OF APPEAL

The unanimous judgment of the Court of Appeal dealt extensively with the issue of allodial ownership of the plaintiff’s stool as well as the issue of determinable or usufructuary title of the defendants’ family. In reading the unanimous judgment of the court Honyenuga, J.A. made the following observations at pages 259-261 of the record of appeal:-

            “It was obvious that a stool subject would acquire a determinable or usufructuary interest in the land if (a) he reduced the land into his possession, (b) the boundaries must have been established and the land cleared and brought under cultivation and (c) must most importantly acknowledge loyalty or allegiance to the stool.

 

In the instant appeal, there is sufficient evidence on record that the determinable or usufructuary title rested with the respondents. All the incidents of usufructuary title is on record. There is evidence that Eziamansa was first granted Kudubrofo land by the appellant’s predecessors but could not settle there but left to settle at Ewoku (Awuku) where they farmed. … There is also evidence that some of the descendants who included the respondents have lived and are still living and are in possession of these lands for over 100 years. The respondents who are subjects of appellant’s stool owed their continued occupation of the land upon their allegiance to the appellant’s stool. The respondents have however stopped paying tribute and stopped owing allegiance to the appellant’s stool. They even went to the extent of claiming portions of the land not granted to them.

 

The trial judge found that it was the conduct of the appellant which elicited the stoppage of the performance of custom to the appellant stool and there the appellant could take advantage of that. Is this finding of the learned trial judge supported by the evidence on record? … From the legal authorities, it was obvious that forfeiture from a subject occupying a stool land was an extreme form of punishment and this could be inflicted after an inquiry. Coming to the finding of the learned trial judge, I think that his reason for the refusal of the payment of tribute to the stool was wrong and not supported. In any case if it was because the legal actions taken by the stool as a result of the misconduct of the respondents, nothing prevented the respondents from continuing with the payment of tributes to the allodial title owner while litigation raged on. The respondents rather took advantage and gave out portions of land not granted to them and had a statutory declaration made on the land, thus challenging the title of the appellant.

 

As already stated the law was that a subject of the stool’s continued occupation determinable or usufructuary title to the stool land was a sine qua non to the subject acknowledging the loyalty to the stool. From the record, the respondents had denied the title of the appellants who are their allodial title owners by refusing to pay tribute to the stool, granting portions of land to others which belonged to the allodial owner among others. The appellant would therefore be entitled to forfeiture of the land in dispute subject to the respondents approaching the appellant’s stool for an enquiry. … It is for the reasons that since there is evidence that the defendants denied the title of the appellant stool and refused to owe allegiance and pay tribute to the stool, the learned trial judge was wrong in coming to the findings and conclusion he arrived at. I would therefore not support the judgment because it is against the weight of evidence”

 

The appeal was allowed. However, it would be expected that the Court of Appeal would deal adequately with the sole ground of appeal namely: “That the judgment is against the weight of evidence”. Essentially that ground of appeal invites the Court of Appeal to review the whole of the evidence, documentary and oral, adduced at the trial and come out with a pronouncement on the weight of evidence in support of the judgment of the trial court or otherwise.  In the case of Koglex [No. 2] v. Field  [2000] SCGLR 175 Acquah JSC (as he then was) at page 185 of the report stated the duty of the appellate court on the issue as follows:

 

“Briefly, the primary duty of an appellate court in respect judgment based on findings of fact, is to examine the record of proceedings to satisfy itself that the said findings are supported by evidence on record. Where there is no such evidence that findings ought to be set aside.”

Where findings are based on established facts the appellate court is in the same position as the trial court and it can draw its own inferences from the established facts. In our consideration of the Grounds of Appeal therefore, our main focus would be to look closely at the totality of the evidence adduced at the trial and seek to do what in our view both the High Court and the Court of Appeal did not do adequately, that is, draw necessary inferences from facts that are clearly established by the evidence, both oral and documentary, adduced at the trial. It is only when that is done that the expectations of justice would be fully met.

 

CONSIDERATION OF THE GROUNDS OF APPEAL

The defendants appealed and filed the following Grounds of Appeal:

 

I. The Court of Appeal erred in reversing the judgment of the trial High Court, Sekondi on a ground that was not relied on by the plaintiff/appellant/respondent as the basis of his claim.

 

II. The Court of Appeal further erred in ordering the forfeiture of the land when it had stated that the forfeiture may only be inflicted upon an occupant after due enquiry had been conducted and an opportunity given the occupant of land to state his case or her case, whereas on the facts no due enquiry nor opportunity to be heard in Defendant’s Family’s defence proved by the plaintiff/appellant/respondent.

 

III. The Court of Appeal again erred in allowing the appeal without stating what reliefs it has awarded the plaintiff/appellant/respondent.

 

IV. The appeal court erred in allowing the appeal, which it held to be a rehearing, without resolving any of the issues which were set down at the Summons for Directions for hearing and which had been dismissed by the trial High Court.

 

V. The Court of Appeal erred in basing its judgment on evidence which was not adduced at the trial.

        

From the judgment of the Court of Appeal, a substantial part of which is quoted above, we are of the view that if the Court of Appeal had dealt adequately with the sole Ground of Appeal, namely “That the judgment is against the weight of evidence”, rather than strayed into areas which were not covered by the issues raised by that Ground of Appeal, a good basis for its judgment would have been arrived at. The only grounds of appeal which were touched upon by the written submissions of the Defendants’ counsel were Grounds I, II and V. Counsel for the appellants dealt with Grounds I and V together before dealing with II. We intend to take all the three grounds together.

 

Indeed the learned trial judge stated the law relating to the rights of allodial title holders and what owners of determinable or usufructuary estate are entitled to correctly. However, in his judgment at page 145 of the record of appeal the trial judge gave a wrong summary of the case of the plaintiff as follows:

“Plaintiffs’ case is that they own all the lands at Lower Axim Traditional area and that since the land in dispute is an integral part of Lower Axim Traditional Area, the corollary is that they are owners of the land in dispute. Plaintiffs claim that the defendants belong to the Royal Nvaviley clan and that they (Plaintiffs) permitted their (defendants’) ancestors to farm on various portions of the land including a portion called Kudubolofo. They therefore contended that the defendants are their tenants on the land. ”

By the erroneous summation of the plaintiff’s stand, the learned judge disabled himself from appreciating a fundamental issue of the litigation that is, overstepping of the original grant to the defendants’ predecessor by the defendants being successors of stranger-grantees.  What appears to have eluded the learned trial judge is the fact that the core of the dispute is not simply the defendants’ family’s rights as the holders of the determinable title of the land in dispute. The mainstay of the controversy is indeed the extent to which the defendants’ family could exercise rights as usufructuary owners of the land.  Of course, payment of tribute by the defendants’ family to the plaintiff’s stool meant that members of the defendants’ family could exercise some rights as owners of a determinable estate recognisable by the allodial owners.  Indeed, as quoted above from the judgment of the High Court, it was the conclusion of the trial judge that “the defendants’ family, having descended from Komele Azia Manzah who was granted permission to live and settle on Kodubolofo and later Ewuku land about 150 years ago, seem to have acquired an estate in Ewuku land which the law recognizes as usufructuary, possessory or determinable title…”

 

As a reminder, what sparked off this litigation was when, in the view of the plaintiff’s stool, the defendants went beyond their boundaries of Ewuku lands as stranger-grantees and claimed rights in areas within the plaintiff’s stool’s land which were beyond the undisputed boundaries of their grant.  It is obvious that the trial judge was misled into equating Ewuku Family land to the whole 15 square miles land as depicted by the Statutory Declaration, exhibit N. If the trial judge had looked at reliefs (e) and (f) of the plaintiff’s claim relating to the Statutory Declaration he would have had a clearer picture of the main issue at stake and done justice to his case.  He would have realised that the area of the Statutory Declaration covered the stool lands of P.W.2, Nana Agona Miezeh I, the chief of Agona and P.W.3, the Abusuapayin of Kona Abradze family of Dadwen otherwise known as “Alongoba” family as well as other grantee-families and stools. Both P.W.2 and P.W.3 testified that their respective lands belong to the plaintiff being the Omanhene of Lower Axim Traditional area, and that their lands fall under Lower Axim stool.

 

MODE OF ACQUISITION BY DEFENDANTS:

As borne out by the documentary evidence on record, especially the two writs issued at the instance of the plaintiff’s predecessor in 1981 and their corresponding statements of claim which can be found at pages 222-228 of the record of appeal as exhibits L and L1, which constitute the antecedents of the Statutory Declaration, the real contest between the parties is the determination of the extent of the defendants’ family’s land over which their usufructuary ownership operates. We would come back to the two writs and their respective statements of claim later. At this stage we would do well to look at the evidence with regard to the mode of acquisition of the land in dispute by the defendants’ ancestress in our bid to ascertain the limits of the boundaries of the forest land which they cultivated at Ewuku. To start with, the trial judge commented in his judgment that the plaintiff did not offer any proof of the mode of acquisition of the land by his stool family. What should be noted is that in reality both in the pleadings and throughout the trial the allodial ownership of the Lower Axim Omanhene of the subject matter of the litigation is not in dispute. It means that it was not necessary for the history of the acquisition by the stool to be recounted by way of traditional evidence. The defendants do not dispute that the plaintiff’s stool owns the allodial title to the land which is the subject matter of this litigation, as the judgments of the both the High Court and the Court of Appeal conclude. However their evidence, especially that of the first defendant, seems to suggest that in spite of the fact that their ancestress, Azia Mansa did not belong to the Royal Nvaviley family of the plaintiff’s stool and therefore a complete stranger so far as the plaintiff’s stool was concerned, went to occupy the land in dispute without any authorisation and permission from the plaintiff’s stool. According to his testimony on oath, later the brothers of Azia Mansa joined her at Ewuku, broke the virgin forest land which they cultivated.

 

The first defendant was insistent that before the arrival of his ancestress the village of Ewuku did not exist and it was his Abassie Nvaviley Family that set up that village. According to his evidence-in-chief it was their ancestress who appointed her husband Kofi Arko of Agyasi, and enstooled him as the first chief of Ewoku.  Kofi Arko had been her patient whom she had cured of his ailment before their marriage. That portion of 1st defendant’s examination-in-chief which is at pages 110 and 111 of the record of appeal is as follows:

“She settled there and practised her trade i.e. fetish priesthood. People used to come to her for treatment of all sorts of ailments. She would give portions of the land to people she cured for them to feed therein. One Kofi Arko of Agyasi fell sick and he was brought to Azia Mansa for treatment. After the treatment he proposed and subsequently married Ezia Mansa who was then unmarried. Later on some brothers of Ezia Mansa joined her in Awuku. These brothers were Gyentuwah Kwanor, Kofi Tiah, Kweku Kyinakyi. Later Kofi Arko became the chief of Awuku. Ezia Mansa therefore explained to him though he had become chief, he does not own the Awuku land. Being the first to settle there she and her family owned it.”

Apparently, this is to explain that the defendants’ family land did not belong to the Ewuku Stool. In cross-examination he testified on oath that that happened about 200 years ago.  However even though he continually denied throughout his testimony that his ancestress was ever given permission by the plaintiff’s predecessors to cultivate the land granted to her by the plaintiff’s stool, there is the clear admission by all the defendants both in their pleading and their testimonies on oath that their family paid tribute to the plaintiff’s stool as             owner of the allodial title of the land in dispute.   

 

In the circumstances of this case, one means of verifying the veracity of the traditional accounts given by each party is to examine critically the divergent versions given by them to determine whether they conform to legally attested principles of modes of customary land acquisition by stool subjects as well as strangers. As indicated earlier in this judgment there is no need for us to look at the mode of acquisition of the allodial title by the plaintiff’s stool. What we have to examine is the evidence adduced on behalf of the defendants that their ancestress went into occupation of the land in dispute apparently without leave or licence of the plaintiff’s stool. In spite of that assertion by the 1st defendant in his oral testimony in court, in line with the Statement of Defence that his family’s possession of the land in dispute was without the prior permission of the plaintiff’s stool family, he had to reluctantly admit that his family paid tribute to the plaintiff’s stool. Cross-examination of the 1st defendant appearing at page 115 of the record of appeal reveals his lack of candour in his narration of his family’s history respecting their acquisition of the land in dispute.  It reads:

“Q. Was Eziamansa granted permission to settle at Kudubrofo by the paramount chief?

A. No.

Q. When she moved to Awuku there was already a settlement there?

A. No, the place was virgin forest.

Q. At Awuku was she granted permission by the stool of Lower Axim to settle there?

A. At that time there was no Lower Axim Omanhene but there were various chiefs. It was later that Lower Axim was made Omanhene.

Q. Are you saying that the sub-chiefs came onto the land before the paramount chief?

A. Yes, he was made paramount in 1947. …

Q. Which Omanhene was in Lower Axim when Eziamansa went to Awuku?

A. Ohene Atta I. He was not even then Omanhene. He was later made so.

Q. When did your predecessors start paying tribute to Omanhene?

A. 1947”.

Certainly the 1st defendant’s answer in cross-examination that when Ezia Mansa went to Ewuku Ohene Atta I was not the Omanhene but was made Omanhene in 1947 cannot be correct since he testified that the event of the settlement occurred about 200 years ago. In any case we have a situation where the defendants’ family is supposed to have on their own acquired possession of vacant land which purportedly did not fall within the area of control of plaintiff’s or any other stool and therefore the need to seek for permission and authorisation from that stool before breaking the virgin forest of that land did not arise. However we are now confronted with a state of affairs in which a supposedly autonomous family of the defendants, obviously as a sign of allegiance and acknowledgement of the plaintiff’s stool’s superior allodial title, pays annual tribute to that stool. Certainly payment of tribute in any form by the defendants’ family to the plaintiff’s stool could only signify its acknowledgement of the plaintiff’s stool’s allodial ownership of the land in dispute.  It is therefore an indication that the defendants’ family’s presence on the land in dispute could not have been without the permission and authorisation of the plaintiff’s stool.  That indeed would be a far cry from the 1st defendant’s assertion in his oral testimony that his ancestress, Azia Mansa went to Ewuku and without leave or licence of the plaintiff’s stool broke its virgin forest land.

 

On their family’s mode of acquisition of the land the defendants also testified that their ancestors gave forest lands to some strangers and they granted them permission to cultivate part of the virgin forest land. We would therefore have to look at the defendants’ family’s position on the land.  Being strangers themselves the question to ask is: Would they be entitled to give out virgin forest lands to other strangers for cultivation? Our understanding of the customary law position is that it is only after the stranger with the permission of his grantor stool or family has reduced a virgin forest land into cultivation that he would be entitled to give portions or all of it to others without reference to the grantor stool or family. It is only the allodial title owner who could make a grant of virgin forest land to strangers for cultivation.

 

INFERENCE FROM THE EVIDENCE ON RECORD

Since we come to the conclusion that the defendants’ ancestors could only have occupied the land with the leave or licence of the plaintiff’s stool which must have resulted in the payment of tribute by the defendants’ family to the stool, another important aspect of the case to look at would be the extent of the land granted to the defendants’ stranger family.  Both the trial court and the Court of Appeal agree in their conclusion that the defendants’ family became owners of the determinable title of the area of their grant. In the case of Awuah v. Adututu and Anr. [1987-88] 2G.L.R. 191 the Court of Appeal held that The usufructuary title which a stranger-grantee acquired placed him in the same position as a subject of the stool except that in the case of farming land as well as building land the title of a stranger-grantee was limited to a well-defined area demarcated and granted to him, whereas the subject of the stool was not so limited to the area he could occupy.  Consequently, the subject of the stool or a stranger-grantee of the stool could maintain an action against even the stool in defence of the usufructuary title and might impeach any disposition of such interest effected without his consent in favour of a third party.

 

Unlike a stool subject or a member of a family, in the case of a stranger-grantee the area of his formal grant is specifically marked out and therefore clearly identifiable.  Therefore it is expected that there should be a clear demarcation and identification of the area of land granted to the defendants’ family.  Since the evidence is indisputable that the defendants’ ancestress formally settled at Ewuku it would be expected that land granted to her to cultivate would be located in that area in the absence of evidence of any other formal grant or grants from the plaintiff’s stool. It means therefore that any cultivated land that falls outside the area of the grant to the defendants’ family area could not be regarded as the defendants’ family’s land. The evidence from the defendants seems to suggest that the successors of their ancestress continued to cultivate forest lands beyond the outskirts of Ewuku which implies that these were done without  formal grant from the plaintiff’s stool, as they would have the court to believe. As members of a stranger family and unlike the case of stool subjects it would be expected that they would still have needed formal grants from the stool to carry on their expansion programme. Evidence of the 1st defendant especially appears to relate to farms allegedly cultivated by some of his ancestors which spread far beyond Ewuku where its first chief who, according to the testimony of the 1st defendant, did not own a share of the defendants’ family land, was supposed to have been enstooled. 

 

Such evidence would suggest that the defendant’s ancestors did not operate within the area supposedly allocated to them as strangers by the plaintiff’s stool.  It also follows that even if it is established that members of the defendants’ family did cultivate farms in other areas which fell outside the area allotted to them by the grant they would not have acquired those farm lands since they do not fall within the area of the grant by the plaintiff’s stool to them.  It is in this context that we ought to view the stand of the plaintiff. From the documentary evidence exhibits L and L1 that we have referred to, it was only after the defendants had encroached upon lands beyond the areas of the grant of the plaintiff’s stool to their family that the plaintiff’s stool raised its first protest in the form of issue of writ of summons against the defendants’ family on 3rd March 1981. 

 

The Writ of Summons and Statement of Claim of that case i.e. NANA OHENE ATTA II V. OPPONG KOFI AND 2 OHERS,  can be found at pages 222-225 of the record of appeal, exhibit L.  The solicitor for the plaintiff in that case was Mr. B. E. Kwaw Swanzy. The first leg of their claim was for Perpetual Injunction restraining the defendants from extending their farming operations to places outside Ewuku without the knowledge consent and concurrence of the plaintiff. Paragraphs 2-5 of the Statement of Claim read as follows:

“(2) The defendants herein hail from Abasi a village outside the Lower Axim Traditional area have lived in Lower Axim for a very long time.

 (3) The defendants have been allowed to farm in the area they live but it has now been observed by the plaintiff herein that instead of limiting their farming operations to Ewuku they have extended their said operations to Kadabasia and its surrounding areas without authority.

(4) The defendants have also sold some of the lands in the Atechem Anosi and Agona areas also the property of the plaintiff, without the consent or concurrence of the Plaintiff herein.

(5) The defendants have wilfully and maliciously asserted or purported to assert proprietary rights to the lands they have been alienating to various persons”.

 

Also at pages 226-228 of the record of appeal we have a second Writ of Summons and Statement of Claim (exhibit L1) at the instance of Nana Ohene Atta II, by the same solicitor, against Bolo Kofi and others who were farmers and distillers of Akpeteshie from Ewuku and who, according to his pleading, had gone beyond the area of Ewuku Village to fell palm trees on land belonging to the plaintiff’s stool. That Writ of Summons was issued on 26th May 1981. As expressed earlier in this judgment it is in the context of this background that we ought to view the Statutory Declaration which the defendants rely on in their pleading and their oral testimony.

 

In our opinion the trial High Court judge oversimplified the issues which the pleadings and the evidence adduced in this case present. He dwelt mainly and extensively on the usufructuary title of the family of the defendants and its accompanying incidents. However, we do not think that that was the main focus of the plaintiff’s claim.  It is worthy of note that the present litigation started when the defendants’ family published the offending Statutory Declaration in 1984 which was after exhibits L and L1 had been issued in 1981 at the instance of the plaintiff’s predecessor.  Looking at the pleadings and the issues that are raised thereby, strictly speaking, this is not a simple case of a contest between allodial title holders and owners of usufructuary or determinable title.  In his judgment at pages 149 and 150 of the record of appeal the learned trial judge stated the relevant law relating to the rights, obligations and responsibilities of allodial title holders and owners of determinable or usufructuary estate.  What appeared to have eluded him were the events which sparked off this litigation which could give him a clue as to the main focus of this litigation and therefore the foremost of the issues at stake.  Obviously it was when the defendants’ family went beyond the limits of what the plaintiff’s stool considered as the area of the grant to that family and claimed ownership of areas extending beyond the location of their grant that the plaintiff set in motion the litigation process to recover what he considered as belonging to his family and stool and not given to the defendants’ family by a formal grant. 

 

It is understandable that to the plaintiff’s stool payment of tribute by the defendants’ family related to the specified area of the grant which was bound to be the case since they are stranger-grantees on the land.  Perhaps that is why the 1st defendant seems to blow hot and cold in his sworn evidence before the court. He did that by denying that his ancestress and later her siblings ever sought the permission from the plaintiff’s stool to cultivate a limited, demarcated portion of the virgin forest land as stranger-grantees, while at the same time admitting in cross-examination that his family in the past paid annual tribute to the plaintiff’s stool which signified their family’s recognition of the plaintiff’s stool’s allodial title. That indeed gave confirmation to the fact that as stranger-grantees their ownership was limited to areas of the grant or grants to them.

 

STATUTORY DECLARATION:

What is striking about the decisions of both the High Court and the Court of Appeal is the complete failure by both courts to deal with the issue of Statutory Declaration, exhibit N which indeed dictated the nature of the plaintiff’s claim. As it can be seen, the writ of summons upon which this appeal is based is a marked departure from what the plaintiff’s predecessor’s 1981 writ of summons, exhibit L which we have already referred to. In exhibit L the claim against the plaintiff’s family related to lands which specifically fell outside the area of the grant by the plaintiff’s stool to the defendants’ family at Ewuku. In the current litigation it is all about the whole fifteen miles square area which the Statutory Declaration seeks to claim for the defendants’ family. Also the defence of the defendants substantially hangs on it. They, in spite of their pleading to the contrary, eventually admitted that the plaintiff’s stool is the allodial owner of the whole of Lower Axim lands. More importantly, reliefs (e) and (f) of the plaintiff’s claim, which undoubtedly relate directly to the subject of the Statutory Declaration would require pronouncements of the two courts as to the validity or otherwise of that document. It is therefore imperative that in this appeal some attention ought to be devoted to the all important issue of validity or otherwise of the Statutory Declaration, which both the trial High Court and the Court of Appeal failed to touch upon.

 

At this stage it would be, in our view, worthwhile to deal specifically with the issue of the Statutory Declaration, exhibit N. We shall first have a look at the requirements for making of that document and then proceed to consider the circumstances under which exhibit N was made. Section 4— of the Statutory Declarations Act, 1971 (Act 389) is on Procedure for making Statutory Declaration. It reads:

“Every magistrate, notary public, commissioner for oaths and any other person authorised by law to administer an oath may take and receive the statutory declaration of any person voluntarily making it before him, and shall certify it under his signature”.

 

We have had a close look at the Statutory Declaration from the defendants, exhibit N and what stands out quite clearly is that the declaration did not satisfy the requirement of section 4 of Act 389. To be precise the declaration was not made before any of the qualified persons listed in section 4 of Act 389 quoted above. It was “DECLARED SIGNED AND SEALED BY EDIAH KPOLE, Declarant herein after the contents have been truly and audibly read over in English and interpreted to him and his elders in the Evalue language by DAVISON AMOAH of Asemasa in the presence of 1. OPPONG KOFIE … Linguist, 2. KRACHI KWAW … Secretary, 3. KWAME TANDOH … Elder”. The date of the declaration is not stated on the document. However we have the oath of Davidson Amoah before the Registrar, High Court, Sekondi dated 17th October 1984. That means at the time of making of the Statutory Declaration the 1st defendant’s predecessor, Edia Kpole and the first defendant were fully aware of the claim of the plaintiff’s stool. That is because in 1981 the plaintiff’s predecessor had issued the two writs, exhibits L and L1 against the predecessor of the 1st defendant and others who dealt with the defendants’ family to register his stool’s claim to lands which fell beyond the boundaries of Ewuku. We have already given some details of the two writs earlier in this judgment. At this stage it would be pertinent to have a quick look at the content of the affidavit in support of the Statutory Declaration, especially its paragraphs 5-10. They read as follows:

 

“5. That according to the traditional history of the Ewuku Nvavile Family, DOMENLE EDZIA MANZA with KWESI EWIAH (Deceased) the heads of my ancestors were the first persons to settle on the said Ewuku Nvavile Family Lands with their subjects.

 

6. That at the time my ancestors, led by the said KOMENLE EDZIA KANZA – Heads of family settled on the said Ewuku Nvaviley Family Land described in the schedule hereto and delineated on the plan hereto annexed the said hereditaments were a RES NULIUS that is to say no man’s land.

 

7. That my ancestors were therefore the first to occupy the said hereditaments and develop the same.

 

8. That by reason of first occupation and development my ancestors became the bona fide owners of the said hereditaments.

 

9. That ever since my ancestors acquired the said land, the EWUKU NVAVILE FAMILY have been in undisputed possession of the said land and has exercised act of ownership thereon including the right of sale, alienation, demise and other disposition without any interruption or adverse claim from any stool or person.

 

10. That the land described in the Schedule is hereby declared the bona-fide property of the EWUKU NVAVILE FAMILY free from all encumbrances whatsoever.”

By the Statutory Declaration, the defendant’s family came out with the area of land they claim as belonging to their family and they leave us in no doubt as to the total area of forest land which members of that family have supposedly cultivated in their own right. To verify the accuracy or otherwise of the delineation of their supposed family land area we would do well to look closely at certain features of the area as well as the evidence of the 1st defendant given in cross-examination. In the course of cross-examination of the 1st defendant he was offered the opportunity to explain how the boundaries of the land depicted in exhibit N, the Statutory Declaration, were arrived at. We would reproduce the portion of his cross-examination at page 122 of the record of appeal which has a direct bearing on the subject as follows:

“Q. The exhibit N you made, when you were demarcating the boundaries how did you go about it?

 A. We went to the Lands Commission and out of the master plan they did it for us when we mentioned our boundary owners to them.”

Clearly the mode of marking out the boundaries of exhibit N is not an acceptable customary law practice for that purpose. In the case of Vanderpuije v. Adam [1961] GLR (Pt II) 733 it was held by Ollennu J., as he then was, that a person cannot unilaterally fix a common boundary between his land and that of adjoining owner. The Supreme Court affirmed that decision in the case of Adam v. Vanderpuije [1963] 1 GLR 194. See also the cases of Nyame v. Yeboah [1961] GLR 281, S.C. and Feli v. Akessse (1931) 2 W.A.C.A. 46, P.C. There is no indication that in the preparation of exhibit N the defendants’ family caused a map to be drawn based on features of the land which they were supposed to show to qualified surveyors as well as boundaries of the land agreed upon by defendants’ family and owners of adjacent lands.

 

FORFEITURE

Payment of tribute by the defendants’ family-grantee to the plaintiff’s stool was obviously an acknowledgement by the defendants’ family of the plaintiff’s stool’s superior allodial ownership of the land of which the area of the grant to their ancestress is only a part. In other words payment of tribute by the defendants’ Ewuku family to the plaintiff’s stool was indicative of recognition by that family of the plaintiff’s allodial ownership of the area of the grant which is at Ewuku from where we suppose the defendants’ family name EWUKU NVAVILE FAMILY is derived. That means payment of tribute to the plaintiff’s stool related only to the area of the grant to the defendants’ ancestress and not beyond it.

 

With this background we look at the judgment of the Court of Appeal based on the refusal by the defendants’ family to pay tribute to the plaintiff’s stool which relates to the grant to that family. The judgment of the Court of Appeal based on forfeiture on account of refusal by the defendants’ family to pay tribute to the plaintiff’s stool ought to be seen as relating to only the area of the grant at Ewuku in respect of which the defendants’ family used to pay tribute to the plaintiff’s stool. As demonstrated in this judgment the attempt by the defendants in their defence to ostensibly relate payment of tribute to the whole area covered by exhibit N in order to justify the exercise of their usufructuary rights beyond the area of their grant failed. In reality the plaintiff’s claim covers the whole area which exhibit N, the Statutory Declaration seeks to claim as belonging to the defendants’ family. The plaintiff’s stand has all along been that the area covered by exhibit N was not what his stool granted to the plaintiff’s ancestress. That means so long as the plaintiff’s stool is concerned payment of tribute related to only the area of the grant to the defendants’ ancestress at Ewuku. It would therefore be illogical and indeed inappropriate for the Court of Appeal to base its judgment in respect of the whole area claimed by the plaintiff upon the refusal by the defendants’ family to pay tribute in respect of the area of the grant to their ancestress, which is limited to the environs of Ewuku. After all in part of its judgment quoted above the Court of Appeal came to the conclusion that the defendants’ family granted “portions of land to others which belonged to the allodial owner among others”. That in our view could have been good basis for its decision, looking at the claim of the plaintiff in its totality. We do not think that it is necessary for us to deal with Ground II of the grounds of appeal since that would be uncalled for in the circumstances.

 

CONCLUSION

Even though we are of the view that the Court of Appeal based its decision inappropriately on forfeiture of the land granted to the defendants’ family which the plaintiff did not ask for, we still share the opinion that taking into account the totality of the evidence adduced at the trial and the reasons given in this judgment the appeal ought to be dismissed. We therefore dismiss the appeal. However, in place of the orders given by the Court of Appeal in its judgment we make the following orders: (i) Declaration of title to all that piece and parcel of land described in relief (a) of the plaintiff’s claim, subject to the rights of the defendants’ family as holders of the determinable or usufructuary title in respect of the land granted to them at Ewuku. For the avoidance of doubt, the areas outside the land granted to the defendants’ family by the plaintiff’s stool are declared in favour of the plaintiff’s stool. (ii) In place of reliefs (b) and (c) of the plaintiff’s claim we make an order for the defendants and their grantees in areas beyond the environs of Ewuku to negotiate with the plaintiff for terms of their occupation of lands on which they have trespassed. (iii) We grant the order for perpetual injunction against the defendants, their agents, servants, assigns and workmen etc. in respect of the lands outside the area of the defendants’ family’s grant at Ewuku.  (iv) Declaration that the Declaratory Instrument described in relief (f) of the plaintiff’s claim is null and void and of no effect.

 

 

 

 

                            B. T. ARYEETEY

(JUSTICE OF THE SUPREME COURT)

 

 

BROBBEY, JSC:

 

I have had the benefit of reading and studying in advance the judgment of my Brother Aryeetey JSC. I agree with the judgment and wish to add the following in the form of a re-statement of established principles of customary law applicable in similar situations.

The principle that a person can reduce portions of land to his possession and thereafter claim ownership of it applies only to members of the same family who occupy land belonging to that family.

 

  1. By “family” is meant members who hail from the same family root. “Family” in this context cannot include members of the same clan like Oyoko or Aduana. To illustrate this further, there are Aduanas in various Regions or places such as Ashanti in Essumeja,  Obo in Kwawu, Asante Akim in Agogo. Their common bond is that they are all described as Aduana and use similar clan symbol but are not related in any other way. An Aduana from Kwawu cannot claim to belong to an Aduana family from Asante Akim in any other way. An Aduana from a different place cannot claim land belonging to the Aduana family in a place totally different from his own Aduana family.
  2. Where members of a totally different family migrate from one place to a different place and they are given land on which to settle (hereinafter called the Settlement Area), it is but common sense to subsume that the settlers are confined to live within the boundaries of the areas given to them to settle on (the Settlement Area). If such a settler takes land outside the Settlement Area, he becomes a trespasser of the area he has taken without authority.
  3. For the avoidance of doubt, the area outside the Settlement Area belongs to the original owners.
  4. In case the Settlement Area is not well demarcated or where the boundaries are not clearly known, one can deduce the boundaries to be from a reasonable distance from the boundaries of the Settlement Area. The fact that the boundaries are not clear should not be taken as a reason for the settlers arrogating to themselves areas far away from the Settlement Area. When a person gives another a place to stay, that should not be taken as a licence to take any area that the Settler likes onto himself, unless so permitted by the original owners.
  5. Only members of the original family who originally owned the place and gave out the place to the settlers have the right to develop and occupy areas outside the Settlement Area. They can acquire land outside the Settlement Area by occupation or by development like farming, building thereon etc. Such acquisitions are rights which settler do not have and cannot have by reason of the fact that they are strangers to the original family which owns the land.
  6. In the instant case, the plaintiffs maintained that their family members were from Lower Axim Traditional Area. They contended that the defendants were not part of their family members. They insisted further that the defendants were originally from Ahanta when their ancestress emigrated to Lower Axim and was given land (Ewuku) to settle on. On the facts of this case, Ewuku was the Settlement Area. The contention by the plaintiffs that the defendants were from Ahanta was never challenged by the defendants. In fact, when they arrogated part of the Axim lands to themselves and gave them out to others, they got the Ahanta chief to sign the documents. What authority did the Ahanta chief have over Axim lands for him to have signed for the defendants? That was not explained by the defendants. The defendants and all his family members who took lands outside the Settlement Area given to them (Ewuku) were trespassers.
  7. As trespassers, they could not give what did not belong to them. It was a clear case of nemo dat quod non habet. All who took from the defendants lands outside the Settlement Areas of Ewuku were themselves trespassers.
  8. The fact that the defendants and their fellow trespassers had developed the trespassed lands or stayed on the lands for several years were no grounds for decreeing valid title in their favour. If long possession were enough to found title in their favour, it would mean that whenever anyone took possession of another person’s property and held on to it for a very long time, he becomes the owner of that property. That kind of acquisition of ownership by long possession would lead to chaos. The principle is that long possession is valid and is evidence of title but not against the true owner. Whenever the true owner surfaces, the one in possession should give way to that true owner.

 

I wholly agree that the appeal fails and should be dismissed.

 

 

 

 

                                            S. A. BROBBEY

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 I agree:         DR. DATE-BAH, J.S.C.                                      DR. S. K. DATE-BAH

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

 

I also agree:   ADINYIRA (MRS), J.S.C.                    S. O. A. ADINYIRA (MRS)

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

I also agree:   BAFFOE-BONNIE, J.S.C.                       P. BAFFOE-BONNIE

        (JUSTICE OF THE SUPREME COURT)

 

 

 

COUNSEL

W. A. N. ADUMUA-BOSSMAN FOR THEDEFENDANTS/RESPONDENTS/

APPELLANTS.

KODWO ERSKINE FOR THE PLAINTIFF/APPELLANT/RESPONDENT.