JUDGMENT
ESSILFIE-BONDZIE, JA:
This is an appeal from the
judgment of the Circuit Court
Kumasi dated 9th January 1997,
Plaintiff/Appellant (who will
hereinafter be referred to
simply as the plaintiff) being
aggrieved by the judgment
delivered in favour of the
Defendant/Respondent (who will
also be referred to as the
Defendant) filed on appeal
against the same on the 14th
January 1997.
To appreciate the plaintiff's
case I will give a resume of the
facts. The plaintiff instituted
an action, a declaration of
title to a plot of land numbered
as Plot No. 1A Block J
Kentinkronu in Kumasi, perpetual
injunction and 2 million cedis
general damages for trespass.
It was the plaintiff's case
that he is a holder of a deed
of assignment executed in or
about 1981 between Albert
Prempeh Prince and himself in
which Prince Albert assigned
his interest in plot No. 1A
Block '1' to him. Prince Albert
Prempeh had himself since 1976
been granted a lease of this
very plot by the Akyempim Stool
who is the caretaker chief of
lands in that area including
Kentinkronu lands.
On the other land the
defendant's case was that he is
a member of the ABURAM FAMILY of
Kentinkronu and a grand nephew
of one Yaw Bonda deceased,
Opanin Yaw Bonda in his life
time acquired a large tract of
land at Kentinkronu by way of
purchase from one Oheneba Kwaku
Duah, the then Akyempimhene. He
planted cola on it and since his
death this land has devolved on
his family which had exclusive
right to farm on the land since
then. He described the large
tract of land so purchased by
Yaw Bonda and gave the boundary
owners.
The defendant also
counter-claimed for "a
declaration that he is the owner
of Plot No. 1A Block
Kentinkronu Kumasi".
The circuit court dismissed the
plaintiff's claim and entered
judgment for the defendant on
his counter claim. As said, the
plaintiff has appealed to this
court on a number of grounds.
But it is evident from
plaintiff's written submission
that only the first three of the
grounds of appeal were argued.
The rest of the grounds were
abandoned.
In this judgment I propose to
deal mainly with grounds one of
the grounds of appeal namely "
The judgment is against the
weight of evidence on record".
In paragraph 3, 4, 5 and 6 of
the statement of claim the
plaintiff pleaded as follows
" (3) Sometime in 1976, one
Prince Albert Prempeh of Kumasi
acquired a piece of plot of
land for residential purposes
numbered as plot 1A Block J
situate at Kentinkronu from the
Akyempim stool."
(4) A lease dated 19th of July,
1976 was executed between the
aforesaid Akyempim Stool and the
aforesaid Prince Albert Prempeh
with the Asantehene as the
confirming party for a lease
hold of 99 years.
(5) With the consent of the
lands commission, the aforesaid
Prince Albert Prempeh assigned
all his interests and rights
in aforesaid plot NO. 1A Block
J Kentinkronu to the plaintiff
herein.
(6) A Deed of Assignment was
executed in or about 13th of May
1981 by the said Prince Albert
Prempeh in favour of the
plaintiff".
Mr. Owusu Ansah who is a holder
of a Power of Attorney from the
plaintiff gave evidence on
behalf of the plaintiff.
He testified on oath that Prince
Albert Prempeh his brother's
grantor was the Akyempimhene and
as the caretaker Chief of
Kentinkronu lands, sold the
land in dispute to his brother
for ¢4,000.00 in 1976 as drinks.
Since the root of title of the
plaintiff ought to be proved to
entitle him to a declaration of
title I will write down the
evidence of the plaintiff's
attorney regarding the
acquisition of title to the land
verbatim. He said "My brother
bought the land in 1976 from
Prince Albert Prempeh the
caretaker chief of Kentinkronu
lands where the land is. The
Plot is numbered No.1J
Kentinkronu. It is on Akyempim
stool lands. Prince Albert
Prempeh was Akyempimhene who was
the Caretaker Chief of the
Land. My brother paid drinks of
¢4,000.00" (The emphasis is
mine).
An examination of the above
testimony reveals that there is
a material conflict between the
plaintiff's evidence in respect
of his root of title and the
pleadings.
Whereas in the statement of
claim the plaintiff is claiming
that Prince Albert Prempeh
bought the land in dispute in
1976 from the Akyempim Stool, in
his evidence the plaintiff is
saying that Prince Albert
Prempeh sold the land to his
brother in his capacity as
Akyempimhene. Nowhere in his
pleadings did the plaintiff aver
that the Akyempim Stool sold the
land in dispute to him.
The indenture (Exhibits B)
merely showed that the plaintiff
acquired the land from Prince
Albert Prempeh in 1979. There
was no evidence to establish how
Prince Albert Prempeh acquired
the land in dispute. As it is
patently clear from the
pleadings that Prince Albert
Prempeh was not the Akyempimhene
and merely leased the land in
dispute from the Akyempim Stool,
why did the plaintiff fail to
call any member of the Akyempim
Stool or join the stool to
substantiate his claim that
Prince Albert Prempeh his
grantor indeed acquired the plot
from the Akyempim Stool. Again
as the plaintiff claimed in his
evidence that Prince Albert
Prempeh sold the land to him in
his capacity as chief of the
Akyempim Stool, he should have
called Prince Albert Prempeh or
his representative to
corroborate his testimony,
especially as there was no
evidence that he is dead. The
plaintiff's only witness
according to the record of
proceedings was one Mr. Gershon
Gomado an official of Lands
Department. He said from the
records available at his office
the land subject matter in
dispute is the subject of
assignment between Prince Albert
Prempeh and plaintiff in 1981.
That Prince Albert himself had
leased the land from the
Akyempim Stool in 1976. He said
lands at Kentinkronu have got 3
caretakers chiefs Nsenie,
Akyempim and 3rd chief of which
he could not mention.
Under cross-examination Mr.
Gershon Gomado (Pw1) said inter
alia as follows:—
"Q. You said there are 3
caretakers for Kentinkronu Stool
Land.
A. That is correct.
Q. Can you tell which chiefs
takes care of which lands
A. This can be determined by the
Kumasi Traditional Council.
They can tell which one are the
true owners. We only get to
know under which chief a plot of
land falls through the
allocation paper.
Q. Do you have an allocation
paper in respect of this land.
A. Yes I do.
Q. You cannot tell from the
allocation paper that the person
who signs it, is the real owner
of the land.
A. That is correct. It is the
Kumasi Traditional Council's
duty".
The above testimony
unquestionably discloses that
the lands commission secretariat
does not determine ownership of
lands and the mere tendering of
Exhibits B does not confer
title on the plaintiff. As said
since the plaintiff traced his
root of title to the Akyempim
stool he should have called the
latter as a witness to prove it.
This is important especially as
his pleadings conflicted with
the evidence he adduced in
Court. The plaintiff failed to
prove his root of title and I so
hold.
The defendant's case was that he
is a member of the Asuram family
of Kentinkronu and a grand
nephew of one Opanin Yaw Bonda
now deceased. The land in
dispute forms part of a large
tract of land acquired by his
grand uncle Yaw Bonda. That
Opanin Yaw Bonda in his lifetime
acquired the land at Kentinkronu
by way of customary purchase
from one Oheneba Kwaku Dua, the
then Akyempimhene. He planted
cola on it and since his death
this land had devolved on his
family which has exclusive right
to farm on the land since then.
The defendant called the
Kentinkronu Odikro as his
witness as Dw1. He testified as
follows "I am also the Odikro of
Kentinkronu. I know the subject
matter in dispute. It is part of
the stool land of Biramu
Division. The Biramu Division
has a tract of land in that
area. The subject matter in
dispute forms part of it." Under
Cross-examination he admitted
that as Odikro of Kentinkronu
he is on the land of the
Akyempim Stool and Biramu lands
are also owned by the
Akyempimhene.
It is clear from the evidence of
Dw1, the Odikro of Kentinkronu
that the subject matter in
dispute does not fall under his
caretaker ship as Odikro of
Kentinkronu, but belongs to the
Biramu Division, which belongs
to the defendant's family. Dw1
went further in his evidence to
say that his stool shared
boundary with the large tract of
land which belonged to the
defendant's family.
The defendant also called one
Akwasi Poku (Dw2) who said he is
the head of the defendant's
family Dw2 gave the following
evidence "I know the subject
matter in dispute. I know one
Nana Yaw Bonda (deceased) as my
grand father. I know he
acquired a landed property, a
house at Kentinkronu and a tract
of land on which he planted Cola
at Kentinkronu. This land on
which he planted Cola is what
this family farms on. It has now
become necessary to allocate
some for building purposes. I
know he acquired this land by
buying same from Oheneba Kwaku
Dua the then Akyempimhene".
Dw2 tendered Exhibit '1' as
evidence of the transaction
between Nana Yaw Bonda and the
then Akyempimhene Oheneba Kwaku
Dua. From the document, the
land purchased by Yaw Bonda
shares boundaries with the
properties of the Odikro of
Kentinkronu and one Yaa Gyaose
all chiefs. Exhibit 1 which
was tendered as the defendant's
root of title show that Oheneba
Kwaku Duah sold the land to Yaw
Bonda for £40 in the presence of
persons including his own
mother, the Odikro of Asokere
Mampong the linguist to the
Asokere Mampong Stool and Nana
Asantehene's standard bearer.
The document which is evidence
of a customary sale was prepared
in 1907.
On the face of Exhibit 1 it is
not clear in what capacity
Oheneba Kwaku Duah purported to
sell the land. The document does
not say whether he was the
Akyempimhene at the time or he
was only a subject. In his
testimony on oath said that the
land was sold to his ancestor
Yaw Bonda by Oheneba Kwaku Duah
the then Akyempimhene. This
piece of evidence as the record
shows, was not specifically
denied when the plaintiff's
counsel cross examined Dw2. What
plaintiff's counsel asked under
cross-examination was:
"Q. It is never true that the
late Akyempimhene sold the land
including the subject matter in
dispute to late Bonda.
A. It is true that he did sell
it.
Q. And it is also not true that
the land was sold to your grand
father in the presence of
witness.
A. It is very true".
From the above cross examination
of Dw2, the head of the
defendant's family, it is clear
that the plaintiff was denying
the fact of sale and not
whether the vendor was the
Akyempimhene.
Be that as it may even, if
Oheneba Kwaku Dua sold the land
to Yaw Bonda in his personal
capacity what interest did Yaw
Bonda acquire?. If it is assumed
that Oheneba, Kwaku Dua was only
a subject at the time of the
sale, then what he transferred
to Yaa Bonda was his interest in
the land which at that time was
only usufructuary. The allodial
title remained vested in the
caretaker stool and that is the
Akyempim stool. So in that case
Yaw Bonda and for that matter
his family holds the
usufructuary interest while the
allodial interest resides in the
Akyempim Stool.
The acquisition of the
usufructuary rights of the
family of the defendant is also
deducible from the evidence of
Dw1 Nana Owusu Afriyie, the
Odikro of Kentinkronu who said
that the land in dispute forms
part of the Burima Division of
Kentinkronu. As already pointed
out the Kentinkronu Odikro
shares boundary with the land
sold to Yaw Bonda which is the
disputed land. The evidence of
Dw1, the Odikro of Kentinkronu
on this issue was accepted by
the trial judge.
As it was stated by the learned
trial judge that, the Law is
settled that the Stool holds the
absolute title in the land as
trustee and on behalf of its
subject. But each individual or
family is regarded as the owner
of so much of the land as it is
able by its industry or by the
industry of its ancestors to
reduce into possession and
control.
It cannot, save with the express
consent of the family or
individual be disposed of by
the Stool. The individual or
family may assign or dispose of
his interest in the land to
another subject of the Stool.
There is practically no
limitation over his right to
alienate that usufructuary
title. So long as he recognised
the absolute title of the Stool,
that usufructuary title could
only be determined on an express
abandonment or failure of heirs
see THOMPSON VS. MENSAH (1957) 3
W.A.C.R 240. Neither can the
Stool divest the usufructuary of
his title by alienating it to
another without the consent and
concurrence of the usufructuary
see OHIMEN-ADJEI (1957) 2
W.A.L.R 275.
In this case there is no
evidence on record that the
defendant's family abandoned the
land acquired by Yaw Bonda. The
defendant's family still
recognizes the Akyempim Stool as
the allodial owner. This is
borne out by the evidence under
cross-examination of Dw2.
"Q. The Site plan covering the
entire land at Kentinkronu
including the land in dispute
was drawn at the instance of the
Akyempimhene.
A. That is correct. But every
family has its lands when the
family sells it, the Odikro
signs and Akyempimhene also
signs the allocation:
It is my judgment that the
alleged lease hold agreement
executed between the Akyempim
Stool and Prince Albert Prempeh
in 1976 which formed the basis
of the assignment of the land in
dispute to the plaintiff in this
case was void as having been
done without the consent of the
defendant's family.
In the light of this and the
matters I have discussed above I
hold that the judgment of the
trial court is amply supported
by the evidence on record.
The decision the learned trial
judge arrived at is correct and
should not be disturbed. In my
opinion the appeal cannot
succeed on any of the grounds of
appeal and I would dismiss the
appeal.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ARYEETEY, JA:
I agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
OWUSU-ANSAH, JA:
I also agree.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
COUNSEL
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