Land Administration – Stool lands – Boundary dispute  – Principles for reference to the Stool Lands Boundary Settlement Commission by court – Whether dispute over stool family land a stool land boundary dispute  – Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) s 4(2).

Practice and procedure – Parties – Stool family – Action in relation to, Action to be by or against family head – Order 15 r 13 of the High Court (Civil Procedure) Rules 1954 (LN 140A).

The plaintiff claimed on behalf of his stool family a declaration of title to the disputed lands and damages for trespass against the defendant boundary owner. The defendant also the head of his stool family, denied the alleged trespass or that the parties were adjoining owners and counter-claimed for declaration of title to a large tract of land of which the disputed area formed part. The trial court gave judgment for the plaintiff and at hearing the hearing of the appeal to the Court of Appeal counsel for the defendant-appellant argued that the trial judge ought to have stayed proceedings for the boundary between the two stools to be determined under section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172). The plaintiff-respondent submitted that the dispute was not a boundary dispute but a claim of title to an identified piece of land.

Held: (1) To determine whether the determination of the boundary was essential for the determination of title to a disputed land, the wording of the plaint was not conclusive; the court must examine the pleadings and the evidence. The court must then stay the proceeding as soon as it became apparent that a stool boundary was in issue, whether the main or marginal issue and refer the matter to the Stool Lands Boundary Settlement Commission under section 4(2) of the Decree. Sah v Darku [1987-88] 1 GLR 123, CA referred to.

(2) The dispute was not a stool boundary dispute. Order 15 r 13 of the High Court (Civil Procedure) Rules 1954 (LN 140A) provided that the occupant of a stool or a regent should litigate on behalf of the stool while the head of a family litigated on behalf of the family. The plaintiff, a regent was permitted by his family head to sue on behalf of the family. The defendant was sued as the family head, not as a stool occupant. Each family had a stool but the parties knew that they were litigating over family land. Were the property in dispute to be stool property neither party would have had the capacity to sue. Gabbs Ltd v Boakye [1991] 1 GLR 533, CA, Okwan v Amankwa II [1991] 1 GLR 123, CA referred to.

(3) Family land did not become stool land just because it belonged to a stool family. A stool family meant nothing more than a family from which a person might be nominated for election or selection as a chief or which had the right to nominate a person for election or selection as a chief. Its land did not normally belong to the “Oman” or the stool, the community or company. It was private family land, excluded from the operation of Act 123 or the jurisdiction of the Stool Lands Boundaries Settlement Commission. A court could not therefore refer a dispute between two or more such families to the Commission. Okwan v Amankva II [1991] 1 GLR 123, CA referred to.

Cases referred to:

Akpawey v State [1965] GLR 661, SC.

Amstrong v Strain [1951] 1 TLR 856.

Gabbs Ltd v Boakye [1991] 1 GLR 533, CA.

Okwan v Amankwa II [1991] 1 GLR 123, CA.

Sah v Darku [1987-88] 1 GLR 123, CA.

RULING of the Court of Appeal on preliminary objection by respondent at the hearing of appeal against the judgment of the High Court.

Ebow Quarshie for the respondent.

BENIN JA. The plaintiff-respondent herein namely, H E Dadzie, acting for and on behalf of the Awodwinfo stool family of Kwesimintsim, sued the defendant seeking declaration of title to a piece of land situate within the Effia Concession which he claimed defendant had unlawfully appropriated. He sought also damages for conversion. The plaintiff's case as pleaded is that his family is the allodial owner of the land in dispute which was the subject of the Effia Concession Enquiry No 1256 which was validated and a certificate of validation issued. He averred that the defendant’s family owns land which shares boundary with the plaintiff’s land on the south-western portion of the concession. The defendant pledged his land and when he recently redeemed it he was shown the boundary with the plaintiff. Yet the defendant has trespassed onto plaintiff's land and occupied some 33 numbered plots.

The defendant filed a statement of defence describing himself as the Head of the Sekyi Akona Obratu Ebiradzi stool family of Kwesimintsim and Asekai. He averred that his family owned a large tract of land of which the area in dispute formed part. He counter-claimed for a declaration of title to the same plots mentioned in the statement of claim and for damages for trespass and perpetual injunction.

After hearing evidence, the trial court entered judgment for the plaintiff. The defendant then appealed to this court on several grounds. But when the appeal was listed for hearing, the defendant-appellant's counsel filed a notice of intention to raise a preliminary legal point formulated thus: whether in view of section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) the trial judge ought not to have stayed proceedings for the boundary between the two stools to be determined before deciding that the land in dispute fell within the boundary of the respondent's stool land.

Arguing this legal point, counsel for the defendant-respondent made references to portions of the pleadings and evidence adduced

at the trial and submitted that the trial judge should have advised himself that the issue of the boundary between the two stools was incidental to a resolution of the dispute. He cited the case of Sah v Darku [1987-88] 1 GLR 123, CA holding 5. He then made reference to a portion of this judgment where he said the trial judge had determined the boundary between the two stools. Counsel also cited the case of Gabbs Ltd v Boakye [1991] 1 GLR 533, CA which decided that no distinction existed between stool lands and family land with the coming into force of the 1979 Constitution.

For his part, counsel for the plaintiff-respondent rejected the submission that this case ought to be referred to the Stool Lands Boundary Settlement Commissioner. His reason being that the suit involved title to a particular piece of land the identity of the land was not in dispute. There was no boundary dispute but purely title to an identified piece of land within the Effia Concession whose boundaries had been established as long ago as 1926.

I think to determine whether the issue of boundary settlement was essential or a necessary factor in the determination of the title in dispute between the parties, the wording of the plaint is largely not the conclusive determining factor, the court must examine the entire record of the case from the title, pleadings to the evidence adduced at the trial. Hence the court must stay proceedings at any state as soon as it becomes apparent that a stool boundary is in issue be it the main issue or only a marginal one and then make a reference to the Stool Lands Boundary Settlement Commissioner under section 4(2) of NRCD 172.

Thus the decision in Sah v Darku supra can be supported. In that case there was a land dispute involving two stools. The court held that the determination of the issue whether stool A owned the land in dispute whereby they could make a valid grant to the plaintiff or that stool B owned it to place their tenant farmers in possession necessarily involved the settling of the boundaries between the two stools. That was more so because both stools, from the evidence, had exercised certain acts of ownership over the land.

As soon as the situation of the boundary obtruded from both the pleadings and the evidence as incidental to the determination of the real issue it became the duty of the trial judge as provided by section 4(2) of NRCD 172 to order a stay of proceedings until the boundary was finally determined. The court consequently remitted the case to the trial court for the settlement of the boundary between the two stools to be referred to the Stool Lands Boundaries Settlement Commissioner for determination and for the trial court to pronounce judgment on the basis of that determination.

In this case the plaintiff pleaded his boundary owners to include the defendant’s family. This is paragraph 6 of the statement of claim. The defendant denied this averment specifically by paragraph 5 of his amended statement of defence. So arising on the pleadings was this issue whether parties herein share common boundary and if so where is this boundary. The trial judge clearly saw this so in his judgment he made the following findings:

“I am satisfied that by both the pleadings in the case, and the evidence adduced on both sides, the defendant’s family land does not go beyond the western boundary of the Effia Concession which is indicated by the green line in both exhibit J made by the Lands Commission, Sekondi, and exhibit M, the court plan, and I so find. I also find that the defendant’s family land shares a common boundary with the plaintiff’s family land on the north-western part of the plaintiff's family land and this boundary is the western boundary of the Effia Concession, the green line on both exhibits J and M.” (My emphasis.)

The trial judge realised that a determination of the common boundary between the parties was essential to a resolution of the key issue of ownership to the disputed plot, for soon after he had made those findings above, he delivered himself thus:

“I hold therefore, that the defendant's family had no right to the 33 plots of land mentioned in paragraph 10 of the amended statement of claim which the defendant claims as part of his family land, and which plots are beyond the common boundary.”

It is thus my view that the settlement of the common boundary between the parties was very essential and it appeared to be sine qua non to the determination of ownership of the land in dispute. Thus if the parties are stools as known to custom, then the provisions of NRCD 172 would apply, for it would then be a dispute involving two stools whose boundaries have to be resolved in the suit.

The title to the suit describes the plaintiff as “acting for and on behalf of the Awodwinfo stool family of Kwesimintsim.” In his evidence he described his position as the regent of the said stool pending his installation as chief of Tanokrom. He testified that it is this stool family, which owns the property in dispute. That he has the consent of the family head to bring this action. This evidence was in line with his pleadings. For his part, the defendant pleaded that he was the head of the Sekyi Akona Obratu Ebiradze stool family of Kwesimintsim and Asekai and that it was this stool family, which owns the disputed land. Evidence was also led to that effect. From the totality of the proceedings the following matters stand undisputed: (i) that both parties sued or were sued in the capacity of head of family and not as stool occupant; (ii) that the land is owned by the stool family in either case; (iii) each family granted land and kept the proceeds to itself. I shall return to this shortly.

Counsel for the appellant referred to this court’s decision in Gabbs Ltd v Boakye supra that stool land included even family land by virtue of article 213 of the 1979 Constitution. The said article 213 defines stool land to include “any land or interest in, or right over, any land controlled by a stool, the head of a particular community or a family for the benefit of subjects of that stool or the members of that community or family.” It would appear from this broad definition that stool land includes even family land, hence the decision in the Gabbs Ltd v Boakye case supra. But quite interestingly this same court had some time prior to the decision in the Gabbs Ltd v Boakye case given a contrary opinion in the case of Okwan v Amankwa II [1991] 1 GLR 123, CA. This court in that case categorically held that article 213 of the 1979 Constitution could not be interpreted to include family land as part of stool land. Thus we have two clearly contradictory decisions on the same point coming from this court. Where there are conflicting previous decisions of the Court of Appeal it is not bound by either. What about lower courts faced with conflicting decisions of the Court of Appeal? It was said in Amstrong v Strain [1951] 1 TLR 856 that in such a case the lower court may elect to follow one of such decisions or may take quite a different line. See also Akpawey v State [1965] GLR 661 SC at p 668. It appears from the record in the Gaabs Ltd case that the attention of the panel was not drawn to the earlier decision in Okwan v Amankwa II supra. In my view a decision that does not include family land as part of stool land is much acceptable. The concept of stool land connotes communal ownership as against family land, which is the preserve of a particular family. Thus whether you call it family stool land or family land it is still the private property of a particular family to which the rest of the community have no right. It is significant to note that the definition of stool land under the 1992 Constitution deliberately left out family land to reflect its community based interest.

Looking at the totality of the proceedings I am satisfied that this matter did not affect stool property.  My reasons are these: To begin with the capacity of the parties. Order 15 r 13 of the High Court (Civil Procedure) Rules 1954 (LN 140A) as amended provides as follows:

“(1) The occupant of a stool or skin (or where the stool or skin is vacant, the regent or caretaker of that stool or skin) may sue and be sued on behalf of or as representing such stool or skin.

(2) The Head of a family in accordance with customary land may sue and be sued on behalf of or as representing such family.”

It is worth mentioning that this piece of legislation merely affirmed the time-honoured custom in this country. Thus if the land is stool land it is only the stool occupants or the regent or caretaker as the case may be who would have the requisite capacity to sue and be sued. The plaintiff as regent of the stool did not sue in the own right but had to be given permission by the head of family to sue on behalf of family. The defendant was also sued as head of family, the stool occupant or whoever he may be was not sued. It is a tacit acceptance and recognition of the fact that both parties knew they were dealing with private family land even though the various families have stools. If it is now decided that it is stool property we are talking about it would mean both parties had no capacity but that has never been the suggestion of anybody, not even counsel for the appellant contemplated such a situation. It was because they both knew it was family land that was why even plaintiff as regent of the stool had to be permitted by the head of family to sue.

Next the parties all agree the land is for either stool family. A stool family as known is just like any other family except that it controls a stool, but property owned by it is not communally owned.

In my holding family land or stool family land is not stool land as fully expounded in Okwan v Amankwa II (supra) in that respect I do not follow the decision in Gaabs Ltd v Boakye (supra). Again the land in dispute is not stool land but private family stool land which does not come within the purview of NRCD 172. I dismiss the preliminary objection accordingly.

BADDOO JA. On the 13 of November 1984, the plaintiff-respondent (hereinafter called the “respondent”), filed a writ at the Sekondi High Court against the defendant-appellant, hereinafter called the appellant, for the following reliefs:

1. The plaintiff suing for and on behalf of the Awodwinfo stool family of Kwesimintsim claims against the 1st defendant a declaration of title to all that piece or parcel of land within the Effiah Concession Enquiry No 1256, Sekondi, unlawfully appropriated by the defendant and damages for conversion.

2. The 2nd defendant perpetual injunction restraining the 2nd defendant from registering the 1st defendant as the owner thereof.

In his amended statement of claim, accompanying the writ, the respondent maintained that his family is the owner of the southern portion of the land, the subject matter of the Effia Concession Enquiry 1256.

The boundaries o£ this land are, on the northern side Aitopi lands, on the eastern, southern and south-western sides, Government Lands, while on the north-western side, the appellants’ family are the allodial owners of this land and that his ancestor vas a signatory to the Effia Concession together with three other signatories who are all owners of various portions of the land in the said concession.

The respondent claimed that portions of this land had been leased to the tenants, who prepared and registered title deeds in respect of these leases. These tenants have subsequently built houses on the lands, and have been paying rents to the respondent.

The respondent contended that the appellant whose family land shares boundary with the respondent’s family land had extended the boundary of his family land so as encroach upon a portion of the respondent’s family land within the Effia Concession. This extension, which he did by statutory declarations, bas encroached upon 33 plots of land in the respondent’s family land. And that is why the respondent had taken this action for a declaration of title against the appellant.

The appellant in his amended statement of defence denied the respondent’s averments. His defence was that:

(a) The respondent’s family bad no connection with the Effia Concession Enquiry;

(b) The appellant’s family shares no boundary with the respondent’s family, even though his family owns land adjoining the Effia Concession;

(c) The statutory declarations he made were in respect of his own family land and therefore outside the Effia Concession;

(d) Even if the statutory declarations covered the portions of the Effia Concession, the respondent vas not the proper person to sue in respect of those lands, since he has no capacity to do so;

(e) Finally that since the allocation of the plots were done twenty years ago, to the tenants, the action was statute barred.

The summons for directions was set down for hearing on 27 June 1985, but it was never taken and the trial proceeded to the end. However, before the judgment, the trial judge discovered the oversight and drew the attention of both counsels to the oversight. They all agreed that the issues set out in summons for directions on the basis of which evidence has been led should be the issues for the determination of the suit. It was also agreed by both counsels that a surveyor be appointed to make a plan showing the lands claimed by the parties.

In this connection, Mr Entsua-Mensah was appointed to draw up a plan of the land claimed by each of the parties, the area in dispute, and the area, the subject of the Effia Concession.

The issues which were set down for hearing were:

(a) Whether the defendant has by various statutory declaration, extended the area of land owned by the 1st defendant’s ancestors;

(b) Whether the defendant has entered the Effia Concessions.

(c) Whether the land in dispute belongs to the plaintiff or the defendant.

(d) Any other issue disclosed by the pleadings.

The new plan which was made by the surveyor approved by both parties was marked exhibit M. Another plan also tendered by an officer of the Lands Commission was marked J. From these two plans, the learned judge found as a matter of fact the first and second issues set out in the summons for directions have been answered in the affirmative. That is to say the defendant had by the statutory declaration made by him, extended the area of land owned by the 1st defendant’s ancestors, and further he has entered the Effia Concessions. Thus from the summons for directions, the matter to be resolved, had nothing to do with any boundary between any two stools since the land was identified as being within the Effia Concessions.

What was left for the trial judge to be determined was whether the land in dispute belonged to the plaintiff-respondent or the defendant-appellant. After reviewing the evidence adduced before the learned judge concluded that the appellant’s family land shares a boundary with the respondent’s family land on the north-western part of the respondent’s family land and this boundary is the western boundary of the Effia Concession. He then found that the appellant's family had no right to the 33 plots of land mentioned in the amended statement of claim. He declared the respondent’s Awodwinfo family as the owners of the 33 plots of land. He then awarded respondent the sum of ¢100,000 as damages for trespass.

It is against this judgment that the appellant have appealed to this court. On 22 November 1989, the appellant filed seven grounds of appeal as follows:

(a) The learned judge failed to consider the case for the defendant.

(b) The learned judge erred when he failed to contrast exhibit J and M with exhibit B.

(c) The findings based on exhibit D is not supported by evidence.

(d) The learned judge erred in attaching weight to the evidence of PW3.

(e) The learned judge erred in holding that the defendant-appellant referred to in exhibit A was plaintiff's predecessor.

(f) The learned judge erred in holding the plaintiff's family owned the Effia Concession.

On 20 February 1996, the appellant filed an additional ground of appeal that:

“The learned judge erred when he proceeded with the case without reference to section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 NRCD 172.”

At the hearing of the appeal, counsel for the appellant Mr Quarshie abandoned all the grounds of appeal filed on 22 November 1989 and argued only the ground of appeal filed on 20 February 1996. He submitted that evidence adduced during the trial showed that the real dispute between the parties was a dispute about the boundary between two stools. That being the case, the trial judge should have stayed the proceedings and referred the matter to the Stool Lands Boundary Settlement Commissioner. He referred to Sah v Darku [1987-88] 1 GLR 123, CA. Counsel submitted that the dispute was between Tanokrom and Kwesimintsim stools, represented by the two families.

For the respondent, it was submitted by Mr Acquaye, that there was no dispute to the identity of the land in question. The matter before the court vas in respect of title to land, and it was a matter between two families and not two stools. He submitted that the issue was whether the defendant-appellant entered into the land of the plaintiff-respondent. He submitted finally that the boundary between the two stools was already known and determined and therefore the appeal should be dismissed.

In this court we are called upon to decide only one question, whether or not the matter should have been referred to the Stool Lands Boundary Settlement Commissioner. Section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) provides as follows:

“Where on or after the commencement of this Decree any proceedings are pending or are brought in any Court and in either case it appears to the Court that the situation of any Stool land boundary is the real issue in dispute before the Court, the Court shall decline jurisdiction over the determination of that issue; but where it appears to the court that the situation of the said boundary is only incidental to the determination of the real issue, the Court shall order a stay of the proceedings until the boundary shall have been finally determined as provided in this Decree and may also make such incidental or consequential orders as the Court may deem just.”

Now looking at the pleadings and the issues that were raised in this case, can it be said really without any equivocations that this or a dispute between the stool of Tanokrom, and the stool of Kwesimintsim? Speaking for myself, I do not think the issues raised in this suit have the remotest connection with the boundary between the stool Lands of Tanokrom and Kwesimintsim. Can it also be said that the settlement of the boundary between the parties vas incidental to the determination of the real issue between the respondent and the appellant herein? The answer is clearly and unambiguously No!

The indisputable fact, which was revealed by the evidence adduced by both parties, is that the land which had been encroached upon is a land within the Effia Concession. The identity of the land is not in dispute. The evidence showed that the appellant’s family land shares a common boundary with the respondent's family land on the north-western part of the respondent’s family land and this boundary is the western boundary of the Effia Concession. The evidence further disclosed that by statutory declarations, the appellant had extended his family land beyond the common boundary shared with the respondent’s family land. Additionally it was also established by evidence that the boundary between the respondent's family land and appellant's family land was very well settled.

It is significant to record, that the action brought before the court was for a declaration of title as to who owned the area covered by the 33 plots of land within the Effia Concession.

It does not require much ingenuity to discern that the resolution of this issue does not call for the determination of the boundary between the two stools of Tanokrom and Kwesimintsim.

The trial judge did not feel called upon to determine the boundary between the two stools. I agree entirely with him.

For these reasons, I shall dismiss the preliminary point of law raised by the appellant. The preliminary point of law is accordingly dismissed.

AFREH JA. On 26 February 1996 when the appeal in this case came up for hearing counsel for the defendant-appellant, Mr Quashie, raised as a preliminary objection the following additional ground of appeal:

“(1) The learned judge erred when he proceeded with the case without reference to section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172).”

Section 4(2) of NRCD 172 provides:

“Where on or after the commencement of this Decree any proceedings are pending or are brought in any Court and in either case it appears to the Court that the situation of any Stool land boundary is the real issue in dispute before the Court, the Court shall decline jurisdiction over the determination of that issue; but where it appears to the court that the situation of the said boundary is only incidental to the determination of the real issue, the Court shall order a stay of the proceedings until the boundary shall have been finally determined as provided in this Decree and may also make such incidental or consequential orders as the Court may deem just.”

Mr Quarshie’s preliminary objection raises the issues:

(a) Whether the subject-matter of the dispute between the parties is stool land;

(b) Whether the real issue in dispute before the Court is the situation of a stool land boundary;

(c) Alternatively, whether the situation of a stool land boundary is incidental to the determination of the real issue between the parties.

Arguing the objection Mr Quarshie said both parties in their pleadings and evidence referred to the land as stool lands. The judge therefore erred when he referred to the land as family land. He should have referred the matter to the Stool Lands Boundaries Settlement Commissioner in line with Sah v Darku [1987-88] 1 GLR 123, CA. He further argued that following the decision of this Court in Gabbs Ltd v Boakye [1991] 1 GLR 533, CA there is now no distinction between stool land and family land.

I shall first deal with the question whether the distinction between stool land and family land has ceased to exist. In Gaabs Ltd v Boakye supra which Mr Quarshie referred to in support of his contention, the plaintiff’s uncle by virtue of being the prime cultivator of a virgin forest became owner of it. The lands, through inheritance, became family property. The plaintiff inherited it and was in active and effective possession. The defendant-company applied to the Lands Department for land and the land granted included a portion of the plaintiff’s land. The Lands Department claimed its source of ownership from the Stool Lands Act 1960 (Act 27) and Stool Lands Instrument 1961 (EI 195) made thereunder. In an action in the High Court the plaintiff contended that his land was family land and not stool land and therefore not subject to Act 27 and EI 195. The High Court, Koforidua, gave judgment for the plaintiff. Dismissing the appeal of defendant this court per Ofori-Boateng JA with reference to article 213 of the 1979 Constitution, which defined stool land, said that if it needed the 1979 Constitution to bring about the concept that “stool land” included “family land”, then clearly, when in 1962 by EI 195 of 1961, a Minister purported to seize family land in the guise that he had power to compulsorily seize stool lands, he acted without jurisdiction and his seizure was wrongful, and therefore a nullity.

In the course of his judgment Ofori-Boateng JA said at page 535 - 536:

“It was not until 1979, that officially family land and stool land became merged, perhaps because Heads of Family were upgraded to the ranks of chiefs. This merger appears in the Constitution, 1979, Article 213 where stool land is defined thus: ‘stool land’ includes any land or interest in, or right over, any land controlled by a stool, the Head of a particular community or a family for the benefit of subjects of that stool or the members of that community or family’.”

It seems that the court’s attention was not drawn to the earlier decision of this court in Okwan v Amankwa II [1991] 1 GLR 123, CA,