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Land - Family’s title to –
Trespass - Damages for -
Perpetual injunction – Adverse
possession
HEADNOTES
The Respondent in this appeal
Mankralo Tetteh Otibu, sued the
1st Appellant herein
Ebenezer Kwaku in the trial High
Court, claiming his
family’s
title to a piece of land
measuring 23,552.27 acres, which
he said the 1st
Appellant had
trespassed onto. He sought
further reliefs in the nature of
damages
for trespass and
perpetual
injunction. The 1st
Appellant denied trespassing
onto the land; a portion of
which he claimed belonged to his
family. He counter-claimed for
title to that portion of the
said land which is occupied by
members of his family, damages
for trespass, recovery of
possession and perpetual
injunction. Later, the 2nd
Appellant joined in the action
as Co-defendant in the trial
High Court on the ground that he
was the head of 1st
Appellant’s family. He also
counter-claimed for title to
that same portion of the land
for and on behalf of his family,
order for refund of rent paid to
the Respondent by various
occupiers on the land, recovery
of possession and perpetual
injunction That portion of the
land which the two Appellants in
this appeal claimed belonged to
their family and over which they
counter-claimed, falls within
the larger land over which the
Respondent sued At the end of
the trial, the High Court found
the Respondent’s case (then
Plaintiff), more probable than
the Appellants. The trial High
Court found as a fact that
Appellants’ family is on the
disputed land upon permission
granted them by the Respondent’s
family, The Appellants, being
aggrieved by the judgment of the
trial High Court, appealed
against same to the Court of
Appeal. The Court of Appeal
dismissed the Appellants’ appeal
in its entirety and affirmed the
judgment of the trial High Court
HELD
The evidence on record is
graphic that the Appellants have
been in undisturbed possession
of the disputed land for over
one hundred years and have
villages, cottages, hamlets and
farms thereon. The trial High
court even recognized the fact
that the Appellants were able to
claim compensation in respect of
a portion of the land due to
their long possession or
occupation of same. We are
therefore ad idem with
the Appellants that their
interest in the disputed land;
i.e. the 14.06 square miles
which they occupy, is that of
customary freehold or usufruct
and for that matter, they cannot
be restrained from developing or
alienating portions of same,
subject to the recognition of
the title of the absolute or
allodial owner; i.e. the
Respondent. We therefore allow
the appeal in part by reversing
the injunction order placed on
them by the trial High Court and
affirmed by the Court of Appeal.
We again set aside the award of
damages made against them for
trespass since from the findings
of the two lower courts, their
presence on the land was not
trespassory, but with the
permission and consent of the
Respondent’s family.
STATUTES REFERRED TO IN JUDGMENT
The Survey (Supervision and
Approval of Plan) Regulations,
1989
Limitation Act, (NRCD 54)
Evidence Decree, 1975 (NRCD 323)
High Court Civil Procedure
Rules, 2004 C.I. 47
CASES REFERRED TO IN JUDGMENT
Samasinghe v Sbaiti [1977] 2 GLR
442
Amuzu v Oklikah [1998-99] 141
Attorney-General v Sweater and
Socks Factory Ltd [2013-2014] 2
SCGLR 946
Ohemen v Agyei
[2 WALR], 275
Mansu v Abboye
[1982-83] 2 GLR 1313 (CA)
Awuah v Adututu & Another
[1987-88] 2 GLR 191 (CA)
Tijani v Secretary to the
Government of Southern Nigeria
[1921] 2 AC 399
Togbe Lugu Awadali IV v Togbe
Gbadawu IV [2017-2018] 2 SCLRG
699
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 9th
Edition by Brian A. Garner
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL
O. K. OSAFO-BUABENG ESQ. FOR THE
1ST AND 2ND
DEFENDANTS/ APPELLANTS/
APPELLANTS.
SAMMY ADDO ESQ. FOR THE
PLAINTIFF/RESPONDENT/ RESPONDENT
APPAU, JSC:-
The Respondent in this appeal
Mankralo Tetteh Otibu, sued the
1st Appellant herein
Ebenezer Kwaku in the trial High
Court, claiming his family’s
title to a piece of land
measuring 23,552.27 acres, which
he said the 1st
Appellant had trespassed onto.
He sought further reliefs in the
nature of damages for trespass
and perpetual injunction. The 1st
Appellant denied trespassing
onto the land; a portion of
which he claimed belonged to his
family. He counter-claimed for
title to that portion of the
said land which is occupied by
members of his family, damages
for trespass, recovery of
possession and perpetual
injunction. Later, the 2nd
Appellant joined in the action
as Co-defendant in the trial
High Court on the ground that he
was the head of 1st
Appellant’s family. He also
counter-claimed for title to
that same portion of the land
for and on behalf of his family,
order for refund of rent paid to
the Respondent by various
occupiers on the land, recovery
of possession and perpetual
injunction.
That
portion of the land which the
two Appellants in this appeal
claimed belonged to their family
and over which they
counter-claimed, falls within
the larger land over which the
Respondent sued. They
described it as measuring 14.06
square miles. The disputed land
was therefore the 14.06 square
miles of land which lies within
the 23,552.27 acres over which
the Respondent sued. There was a
3rd Defendant, a
Company by name Prince Mart
Limited, which leaned on the 1st
and 2nd Appellants
for support during the trial as
a lessee of the Appellants. That
Company is not part of this
appeal. The 1st and 2nd
Defendants, who are the
Appellants herein, (and would be
referred to as such
hereinafter), defended the
action together on a claim that
the disputed land belonged to
their family.
At the end of the trial, the
High Court found the
Respondent’s case (then
Plaintiff), more probable than
the Appellants. The trial High
Court found as a fact that
Appellants’ family is on the
disputed land upon permission
granted them by the Respondent’s
family, which owns the larger
portion including the smaller
portion claimed by the
Appellants. The court, however,
found that the said family had
been in possession of that
smaller portion for a long time.
The trial High court accordingly
granted judgment in favour of
the Respondent on all the
reliefs sought and dismissed
Appellants counter-claim. It
ordered the Appellants not to
develop or alienate in any way,
any portion of the disputed land
without the permission of the
Respondent’s family, which is
the allodial owner of the land.
The court went ahead to award
damages against the Appellants
for trespass.
The trial High Court held:
“In view of Exhibit ‘B’ and by
virtue of the aforesaid, the
court prefers the Plaintiff’s
evidence over the Defendants and
finds as a fact that the
Gbesedorm family is on the
disputed land by virtue of the
permission granted them by
Plaintiff’s family. Indeed,
by virtue of their presence on
the disputed land, the Gbesedorm
were able to put in a claim for
compensation…
As against the Defendants, the
Plaintiff has successfully
proved, in my view his title to
the land in dispute on a balance
of probabilities. The balance
tilts in favour of the
Plaintiff..
In the light of the aforesaid,
the Defendants have failed to
prove their claim. Consequently,
I dismiss the counterclaim by
Defendants herein and declare
title of the disputed land in
the Plaintiff.
I perpetually restrain the 1st
Defendant , their heirs,
assigns, grantees, workmen and
any person claiming through them
from developing , alienating,
interfering or in any manner
dealing with the land the
subject-matter of this suit
without the permission and
consent of the allodial owners,
the Plaintiff family. I will
award damages of GHc10,000.00 in
favour of the Plaintiff against
the Defendants for their
trespass”.
{Emphasis added}
Appeal to the Court of Appeal
The Appellants, being aggrieved
by the judgment of the trial
High Court, appealed against
same to the Court of Appeal
on six (6) grounds. The grounds
of appeal were:
i.
The judgment was against the
weight of evidence adduced
before the trial court;
ii.
The trial judge erred when the
court failed to reject
Plaintiff’s exhibit A, the site
plan, which was in clear
violation of LI 1444,
The
Survey (Supervision and Approval
of Plan) Regulations, 1989;
iii.
The trial judge erred in law
when it made a finding of fact
that the Lanor and Sewem
families were in occupation of
parts of the disputed land, yet
made a declaration of title in
favour of the Plaintiff for the
entire land;
iv.
The trial judge erred, when in
in the evaluation of the
Traditional Evidence before the
court, the court relied on the
case of YORKWA v DUA;
v.
Based on the finding of fact by
the trial judge that the 1st
and 2nd Defendants’
family were in undisturbed and
uninterrupted possession of
portions of the disputed land,
the court, the court erred in
concluding that they were on the
land with the permission of the
Plaintiff’s family, and;
vi.
The court erred in awarding
General Damages against the 1st
and 2nd Defendants in
the clear face of absence of
evidence to suggest that they
were trespassers.
The Court of Appeal dismissed
the Appellants’ appeal in its
entirety and affirmed the
judgment of the trial High Court.
The Court held: “Having
dismissed all grounds and issues
which arose from the appeal, and
there being nothing of merit
urged on us by the Defendants to
authorize appellate
interference, we uphold the
judgment of the trial court and
dismiss the appeal in its
entirety.”
Further appeal to the Supreme
Court
The Appellants appealed further
to this Court and the grounds of
appeal canvassed for our
consideration were:
a.
The judgment is against the
weight of evidence.
b.
The learned justices of the
Court of Appeal erred in
affirming the declaration of
title to the disputed land made
by the trial court in favour of
plaintiff, in the face of
concurrent findings of fact that
defendants family had been in
uninterrupted possessions and
occupation of 14.06 square miles
over several years of the total
land in dispute and this has
occasioned a grave miscarriage
of justice.
c.
The learned justices of the
Court of Appeal erred in law in
holding that the failure to
plead
Limitation Act, (NRCD 54)
disentitled defendants from
relying on their long period of
uninterrupted possession in
defence to the suit.
Submissions made by the
Appellants in their Statement of
Case
In their Statement of Case filed
on 16/02/2021, Appellants merged
grounds (a) and (b)
as recalled above and argued
them together under the omnibus
ground that the judgment was
against the weight of evidence.
They then argued ground (c)
which is on the application of
the
Limitation Act, (Act 54),
separately. We recount briefly,
the arguments canvassed by the
Appellants on the grounds.
Grounds (a) and (b)
On grounds (a) and (b),
Counsel for the Appellants
contended that though there was
unchallenged evidence on record
of recent acts by the
appellants’ family on and in
respect of the disputed land,
which acts confirm Appellants’
claim of title to the land as
against the Respondent’s family,
both the trial High court and
the Court of Appeal found
otherwise. Counsel mentioned the
claim made by the Appellants for
compensation in respect of the
disturbance caused to a portion
of the disputed land during the
construction of the Accra –
Akosombo motor road. They again
mentioned the land they leased
out for the construction of
Water Works for the community,
which forms part of the disputed
land, without any challenge by
the Respondent. According to
Appellants, they have
established villages, cottages,
hamlets and farms on the
disputed land to the knowledge
of the Respondent and his
family, for the over one hundred
years that they have settled on
the land. In addition, they have
granted customary leases of
portions of the land to other
stranger farmers and settlers
for farming and building
purposes. Appellants contended
that their claim was limited to
the 14.06 square miles of land
which lies within the 23,552.27
acres claimed by the Respondent
but not the whole land claimed
by the Respondent.
According to them, even granted
it was Respondent’s predecessor
family that permitted
Appellants’ predecessors Tei
Kwame and Aworteinar to settle
on the disputed land to farm and
feed their family as contended
by the Respondent, that action
took place over one hundred
(100) years ago. Since that
time, they have remained in
unconditional possession and
control of that portion of the
land, for which they have
acquired a customary freehold
interest in same. They denied
being mere licensees on the
land. It is for this reason,
according to them, that they
have successfully made customary
grants of portions of the land
to others all these years in
their own right, to the extent
of even successfully putting in
a claim for compensation without
any challenge from the
Respondent’s family. Appellants
therefore strongly urged this
Court to partly reverse the two
lower courts and hold that, even
granted Respondent’s family is
the allodial owner of the larger
land of 23,552.27 acres of land,
which includes the 14.06 square
miles in dispute, they are
customary freeholders on the
disputed land. They accordingly
submitted that as customary
freeholders, they have
usufructuary or user rights or
interest in the land for which
their possessory rights could
not be disturbed by the
Respondent.
Ground (c)
On the last ground of appeal,
the Appellants contention was
that the Court of Appeal erred
when it held that the failure to
plead the Limitation Act (NRCD
54), disentitled the Appellants
from relying on their long
period of uninterrupted
possession of the land in
defence of the action.
Appellants argued that on the
strength of the decisions of
this Court, the mere failure to
plead the Statute of Limitation
(NRCD 54), as required under
Order 11 r. 8(1), must not
deprive the Court from doing
substantial justice where the
appellants’ testimony points
unequivocally or substantially
to the plea. Appellants
mentioned the cases of
SAMASINGHE v SBAITI [1977] 2 GLR
442; AMUZU v OKLIKAH [1998-99]
141 @ P. 174 & ATTORNEY-GENERAL
v SWEATER AND SOCKS FACTORY
LTD[2013-2014] 2 SCGLR 946,
to support their argument.
According to Appellants, in both
the A-G v Sweater & Socks
and Amuzu v Oklikah
cases (supra), though the
principles of ‘Estoppel’ and
‘Fraud’ respectively, were not
specifically pleaded as required
under the rules of court, the
courts held that courts of
justice must strike a proper
balance between substantive
justice and procedural laws. In
both cases, this Court held that
where a plea has not been
explicitly set out, but the
defendant’s case points
unequivocally or substantially
to the plea, the court is bound
to consider it as if same had
been specifically pleaded or
raised by the defendant.
Appellants prayed the Court to
apply the Statute of Limitation
on their behalf, though not
pleaded, to stop the Respondents
from interfering in their
possession and developments on
the land, as was done in the
Sweater and Socks and
Amuzu cases (supra).
Appellants were of the view that
the legal remedy of limitation
is available to them to preserve
the over one hundred (100) years
of uninterrupted occupation or
possession, which the trial High
Court found to be an undisputed
fact, as affirmed by the Court
of Appeal.
Respondent’s response to
Appellants’ submissions
We state emphatically that the
submissions made by Counsel for
the Respondent in his Statement
of Case in answer filed on
09/03/2021, did not in any way,
touch on or answer the issues
raised by the Appellants in
their Statement of Case. The
Respondent did not respond to
Appellants’ submissions on the
Limitation Act; neither did he
answer their arguments on the
acquisition by appellants of a
customary freehold interest in
the disputed land measuring
14.06 square miles. Frankly,
this Court did not benefit in
any way from the submissions
made by the Respondent in his
written Statement of Case as he
did not address the issues at
stake. Notwithstanding the fact
that Respondent did not answer
the issues raised in the notice
of appeal, he prayed the Court
to affirm the judgment of the
Court of Appeal, which was a
total affirmation of the
judgment of the trial High
Court.
Evaluation and determination by
the Court of the issues raised
in the appeal
We wish to discuss first the
last ground of appeal on the
applicability of the statute of
limitation as canvassed by the
appellant, before addressing the
submissions on grounds (a)
and (b). Whilst we
appreciate the wisdom and good
reasoning in the arguments of
the Appellants on the
applicability of the limitation
plea as provided in the
Limitation Act, where it has not
been specifically pleaded in
compliance with the rules of
court, we do not think the facts
in this case do call for such a
discourse. However, it is worthy
to emphasize, as Counsel for the
appellants brilliantly argued in
their written submissions that,
this Court recognizes the
overarching influence of
substantive justice over
procedural propriety as
showcased in several of its
authoritative pronouncements
including the two cases of
Sweater and Socks and
Amuzu v Oklikah mentioned
above. In the Amuzu case
where ‘Fraud’ was not distinctly
pleaded as the practice required
under the rules of the High
Court; i.e. Order 11 rule 8(1)
of (C.I. 47), this Court, per
Atuguba, JSC held that:
“In view, especially of the
provisions of sections 5, 6 and
11 of the
Evidence Decree, 1975 (NRCD
323), regarding the
reception of evidence not
objected to, the court cannot
ignore the same, the myth
surrounding the pleading of
fraud notwithstanding”.
Order 11 rule 8(1) of the
High
Court Civil Procedure Rules,
2004 C.I. 47 provides: “A
party shall, in any pleading
subsequent to a statement of
claim, plead specifically any
matter, for example,
performance, release, any
limitation provision, fraud or
any fact showing illegality
(a)
which the party alleges makes
any claim or defence of the
opposite party not maintainable;
or
(b)
which, if not specifically
pleaded, might take the opposite
party by surprise; or
(c)
which raises issues of fact not
arising out of the preceding
pleading.”
Also in the Sweater & Socks
case, this Court noted the
well-established principle of
the plea of estoppel per rem
judicatam, which is that; a
party, who intended to rely on
that plea, must do so expressly
and make full disclosure of all
the material facts on which it
was anchored. Though the
defendant in that case did not
put up such a plea as practice
required, this Court held that;
“the failure to do so with
specificity, employing the
well-known legal terminology
“estoppel per rem judicatam” is
not fatal to a party’s case”.
According to the Court;
“Courts of justice must
always strive to strike a proper
balance between substantive
justice and procedural laws.
Whenever legally justifiable or
appropriate, substantial justice
must never be sacrificed on the
altar of technicism, or
technical rules of procedure.
Thus, where the plea has not
explicitly been set out, but the
defendant’s statement of case
points unequivocally or
substantially to the plea, the
court is bound to consider it,
as if same had been specifically
raised by the defendant”.
So, as brilliantly argued by
Appellants’ counsel, we think
the same principle that was
applied in the two cases above,
could be applied in a situation
where a defendant fails to plead
the Statute of limitation in his
statement of defence, but puts
up a defence or case that
suggests that the party intended
to rely on that plea, without
any objection from his
adversary. However, as we have
earlier on stated, that
situation is not present in this
case. The defence put up by the
Appellants in both their
pleadings and their testimony in
court, did not suggest in any
way that they intended to rely
on the Statute of Limitation.
This is because the Respondent
did not put in a claim for
recovery of possession as part
of the reliefs sought. Subrule
(2) of rule 8 of Order 11
states: “Without prejudice
to subrule (1), a defendant of
an action for possession of
immovable property shall plead
specifically every ground of
defence on which the defendant
relies, and a plea that the
defendant is in possession of
the immovable property in person
or by a tenant shall not be
sufficient.” One of such
grounds of defence, which a
defendant can specifically plead
as a shield where plaintiff
prays for recovery of
possession, is the Statute of
Limitation.
If the Respondent had put in a
claim for recovery of
possession, then the Appellants
would have been required to
plead the Statute of Limitation
as a defence, as provided under
subrule (2) of Order 11 rule 8
recalled above due to their long
presence on the land, granted
their possession was an adverse
one. That was, however, not the
position in this case. We
therefore fault the Court of
Appeal for introducing the
Statute of Limitation as a plea
the Appellants should have
relied on in their defence to
strengthen their case because of
their long possession on the
land, when the possession of the
Appellants was not an adverse
one but one with the permission
of the Respondent’s family or
predecessors.
Respondent’s complaint for which
he took this action, as his
evidence clearly shows, was that
the 1st Appellant had
leased portions of the disputed
land to strangers for building
purposes without his knowledge
and consent as the allodial
owner. He therefore prayed the
trial High court to collect the
document that the 1st
Appellant possessed, which
empowered him to lease out the
lands as he did since the land
did not belong to them. This was
what he said in his evidence at
page 330 of Volume One of the
record of proceedings (RoA),
when led by his counsel in his
evidence in-chief:
“Q. You have indicated to this
court that you brought the 1st
Defendant to court because they
have come into your land; what
actually have they done on the
land?
Plaintiff: My Lord, the
intention of the family land is
being destroyed by the 1st
Defendant because he sold the
land and people are building on
it. Those who were there built
and roofed the building.
Q. So what do you want this
court to do for you in respect
of what you…?
Plaintiff: My Lord, what I am
asking the court to do for me is
that the document which covers
the land and is in possession of
the 1st Defendant, is
not a good document because the
land does not belong to them so
I am asking the court to take
that document from the 1st
Defendant and give us back our
land.”
A careful reading of the
provisions of section 10 of the
Limitation Act, (Act 54) on
recovery of land shows clearly
that, the section only applies
to land that is held to be in
adverse possession. Subsection
(3) of section 10 of the Act
reads: “Where a right of
action to recover land has
accrued, and before the right of
action is barred, the land
ceases to be in adverse
possession, the right of action
does not accrue until the land
is again taken into
adverse
possession”. ‘Adverse
possession’ is defined by
Black’s
Law Dictionary, 9th
Edition by Brian A. Garner
as; “The enjoyment of real
property with a claim of right
when that enjoyment is opposed
to another person’s claim and is
continuous, exclusive, hostile,
open, notorious.” The
Shorter Oxford Dictionary
(Deluxe Edition), defines the
term as; “the occupation of
land to which another person has
title with the intention of
possessing it as one’s own”.
The evidence and findings made
by the trial High Court and
affirmed by the Court of Appeal
was that the Appellants are on
the land with the permission of
the Respondents. In fact, for
over one hundred years, the
Appellants’ family and the
Respondent’s family have
peacefully co-habited on the
land without any hostility. It
was when the Respondent realized
that the 1st Appellant had
carved out portions of the land
to other persons for building
purposes that he initiated this
action against him. Since the
contention of the Respondent was
that it was their predecessor
who permitted the predecessors
of the Appellants to settle on
the land for farming and
settlement purposes, it could
not be said that for all these
long years or period of
settlement, the Appellants were
in adverse possession of the
land. In fact, they were in
possession with the consent and
knowledge of the Respondent’s
family without any hostilities,
as the Respondent’s testimony
showed. The Appellants could not
therefore have pleaded the
Statute of Limitation because
the Respondent never contended
that the Appellant’s presence on
the land was unknown to his
family or was adverse. If the
Respondent’s contention all
along was that the Appellant’s
predecessors entered onto the
land without their knowledge and
consent for the past one hundred
(100) years and over, then the
Appellants would have been
required to raise the plea of
limitation as a defensive
shield, as contended by the
Court of Appeal.
Again, the Respondent’s
testimony did not suggest in any
way that the Appellants’
presence on the land constituted
trespass notwithstanding the
claim of damages for trespass as
endorsed on the writ of summons.
Having found that the
Respondent’s family permitted
the Appellants’ predecessors to
settle on the disputed land for
the past one hundred years and
over unconditionally, it was
wrong for the trial court to
have awarded Respondent damages
against the Appellants for
trespass. Indeed and in fact,
the Appellants cannot be
described as trespassers,
neither can they be termed as
mere licensees. The rights and
interests that they have
acquired in the disputed land
under their possession are over
and above that of mere
licensees. The Court of Appeal
therefore erred in affirming
this finding of the trial High
Court.
On grounds (a) and (b), we are
of the view that the Appellants
did not canvass sufficient
grounds to challenge the
findings of the two lower courts
that the Respondent’s family is
the allodial owner of the
disputed land, including the
large tract measuring 23,552.27
acres over which he sued. We
therefore affirm that holding.
This is because of the certainty
of the law that long possession
by a stranger with the
permission of the allodial owner
would not confer ownership of
the land upon the stranger. The
authorities are clear that
laches of this nature do not
extinguish the title of the true
owner and do not vest the
stranger occupier with title to
the land. All it does is that it
prevents the true owner from
recovering possession, and
enables the stranger to retain
the use of the land as a
usufruct or possessory right
holder– See the cases
of
OHEMEN v AGYEI [2 WALR], 275;
MANSU v ABBOYE [1982-83] 2 GLR
1313 (CA) and AWUAH v
ADUTUTU & Another [1987-88] 2
GLR 191 (CA).
In the Ohemen v Adjei case
(supra), the court held that the
customary freehold interest,
also known as user or usufruct
interest, is not a mere right of
occupation and farming but an
interest in land which prevails
against the whole world,
including even the allodial
owner. Some of the incidents of
a customary freehold or usufruct
interest, as pronounced by the
courts in several cases,
including those referred to
above are; right of possession,
user rights and enjoyment, right
to an action in trespass, right
of alienation and inheritability
of interest. In the case of
TIJANI
v SECRETARY TO THE GOVERNMENT OF
SOUTHERN NIGERIA [1921] 2 AC 399,
the Privy Council held that:
“The owner of the usufruct
title can alienate his said
title without the prior consent
and concurrence of the absolute
owner so long as the alienation
carries with it an obligation
upon the transferee to recognize
the title of the absolute
owner.” Though such a
stranger can deal with the land
as he wishes, including granting
conveyances, these interests are
limited to possessory and user
rights and cannot mature to
absolute ownership.
As was stated in the
Ohemen v Agyei case (supra);
“The correct position is
that the true owner loses his
right to assert title to and
recover possession of the land;
not that the stranger acquires
title to it, though in actual
fact, he does thereby acquire
title to it”.
This position of the law was
affirmed by this Court in its
recent decision in
TOGBE
LUGU AWADALI IV v TOGBE GBADAWU
IV [2017-2018] 2 SCLRG 699
@ pp700-701. This
Court at holding 2 of its
judgment which is at page 701 of
the report held that:
“Usufructuary rights are not
reserved exclusively to
individual members of the group
or family or clan which
communally owns the land in
question, but they can be
acquired by any person,
including a stranger. A stranger
can acquire usufructuary rights
over land owned by another group
or family either on terms or
through acquiescence…….In the
eyes of the customary law, such
a naturalized stranger holds and
enjoys an interest in the land
not as a stranger anymore, but
as a subject with no limitations
or restrictions attached to his
enjoyment of the land”.
The evidence on record is
graphic that the Appellants have
been in undisturbed possession
of the disputed land for over
one hundred years and have
villages, cottages, hamlets and
farms thereon. The trial High
court even recognized the fact
that the Appellants were able to
claim compensation in respect of
a portion of the land due to
their long possession or
occupation of same. We are
therefore ad idem with
the Appellants that their
interest in the disputed land;
i.e. the 14.06 square miles
which they occupy, is that of
customary freehold or usufruct
and for that matter, they cannot
be restrained from developing or
alienating portions of same,
subject to the recognition of
the title of the absolute or
allodial owner; i.e. the
Respondent. We therefore allow
the appeal in part by reversing
the injunction order placed on
them by the trial High Court and
affirmed by the Court of Appeal.
We again set aside the award of
damages made against them for
trespass since from the findings
of the two lower courts, their
presence on the land was not
trespassory, but with the
permission and consent of the
Respondent’s family.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF.
N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME
COURT)
PROF. H. J. A. N.
MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
O. K. OSAFO-BUABENG ESQ. FOR THE
1ST AND 2ND
DEFENDANTS/APPELLANTS/APPELLANTS.
SAMMY ADDO ESQ. FOR THE
PLAINTIFF/RESPONDENT/ RESPONDENT |
