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Stool land –
Ownership – Customary gift of
land individually owned - Land
owned communally by a family or
stool Customary freehold
interest - Aseda - Grant of
lease - Declaration of title -
Damages for trespass - Recovery
of possession - Perpetual
injunction - Whether or not the
land in dispute was gifted to
the appellant by Nai Otabil
Ashalley II, the late Chief of
Awutu Ofaadaa in or around 1947.
HEADNOTES
The plaintiff
in this appeal is the biological
mother of the 1st
whom, together with the 2nd
defendant, This matter first
went to court when the 1st
defendant, as chief of Ofaadaa,
sold a piece of Ofadaa stool
land to the 2nd
defendant for its farming
enterprise, which was followed
by a claim of ownership by the
plaintiff. She based her claim
of ownership of the 212 acres of
stool land on a gift to her in
1947 by the reigning chief of
Awutu Ofaadaa after which she
performed the necessary rites of
Akan custom in thanking the
chief for the gift. By the year
2000 she, her children and
tenant farmers had cultivated
approximately 212 acres of the
land by shifting cultivation as
reflected in a site plan which
she tendered in evidence. Even
though by the year 2000 she had
acquired a customary freehold
interest in the land, the 1st
defendant made a grant of a
lease of her land to the 2nd
defendant company for commercial
farming purposes in September
2000 without her consent or
concurrence in any form. Being
completely dissatisfied with the
trend of events, on 5th
February 2001 she caused a writ
to be issued against the
defendants claiming some
reliefs, including damages for
trespass and perpetual
injunction. Following the death
of her counsel the action was
discontinued. After exchange of
letters between the parties the
2nd defendant company
commenced its commercial farming
activities on the land which
resulted in the total
destruction of cassava, corn,
oil palm trees and other crops
under cultivation without
compensation to the plaintiff,
her children and tenant farmers.
Therefore on 10th
April 2002 the plaintiff caused
to be issued a writ of summons.
The defendants deny that the
chief of Ofaadaa, Nai Otabil
Ashalley II made a customary
grant of stool land in his
lifetime to the plaintiff. It is
the stand of the 1st
defendant that during the period
1945 to 1956 the reigning chief
of Ofaadaa who was the custodian
of Awutu Ofaadaa stool lands was
ill and a nine member committee
was put in place to superintend
over Awutu Ofaadaa stool lands.
That means Nai Otabil Ashalley
II was not in the position to
make a gift of stool land to the
plaintiff in 1947 personally.
According to the 1st
defendant, the plaintiff who is
her mother, had inherited other
farm lands from at least six
deceased relatives which she
controls. He also contends that
a ruling of the Awutu
Traditional Council confirms his
right as chief of Ofaadaa to
hold all Ofaadaa stool lands in
trust for the lineage of Okomfo
Ashalley, the originator of
Ofaadaa village The trial High
Court dismissed the plaintiff’s
claim and entered judgment for
the defendants The plaintiff
appealed
HELD
Since the
Court of Appeal in its judgment
assigned detailed reasoning to
its conclusion that Ground (a),
that is, “The judgment is
against the weight of evidence”,
is unsustainable, it would be
expected that in this appeal the
written submissions of the
appellant’s counsel would at
least devote some attention to
the analysis by the Court of
Appeal of the evidence adduced
at the trial for its decision,
which is the subject matter in
this appeal. That was not done.
In our view, therefore, there is
no effective challenge to the
ruling of the Court of Appeal’s
judgment before this court. For
the reasons given in this
judgment we dismiss the appeal
as being without merit.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Kwakuwah v.
Nayenna, (1938) W.A.C.A. 165,
Asare v.
Teing, [1960] GLR 155,
Addy v.
Armah, (1960) Oll. C.L.L. 240
Asante v.
Bogyabi. [1966] GLR 232
Anaman v.
Eyeduwa [1978] GLR 114,
Adamu v.
Administrator General [1987-88]
2GLR 460
See France v.
Golightly; France v. Addy
(Consolidated) [1991] 1 GLR 74,
Odametey v.
Clocuh & Anr. [1989-90] 1 GLR
14,
Republic v.
High Court, Accra, Ex Parte
Lands Commission, [1995-96] 1
GLR 208
BOOKS
REFERRED TO IN JUDGMENT
Fanti
Customary Laws (2nd ed.) Sarbah
DELIVERING
THE LEADING JUDGMENT
ARYEETEY,
JSC:-
COUNSEL
GEORGE
AGBEKO, JAN CHAMBERS FOR THE
PLAINTIFF/ APPELLANT/ APPELLANT.
MAXWELL KOFI
AMOAKOHENE FOR THE DEFENDANTS/
RESPONDENTS/ RESPONDENTS.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
ARYEETEY,
JSC:-
The
plaintiff/appellant/appellant
whom we shall refer to as the
plaintiff in this appeal is the
biological mother of the 1st
defendant/respondent/respondent
whom, together with the 2nd
defendant/respondent/respondent,
we shall refer to as defendants.
This matter first went to court
when the 1st
defendant, as chief of Ofaadaa,
sold a piece of Ofadaa stool
land to the 2nd
defendant for its farming
enterprise, which was followed
by a claim of ownership by the
plaintiff. She based her claim
of ownership of the 212 acres of
stool land on a gift to her in
1947 by the reigning chief of
Awutu Ofaadaa after which she
performed the necessary rites of
Akan custom in thanking the
chief for the gift. By the year
2000 she, her children and
tenant farmers had cultivated
approximately 212 acres of the
land by shifting cultivation as
reflected in a site plan which
she tendered in evidence. Even
though by the year 2000 she had
acquired a customary freehold
interest in the land, the 1st
defendant made a grant of a
lease of her land to the 2nd
defendant company for commercial
farming purposes in September
2000 without her consent or
concurrence in any form. Being
completely dissatisfied with the
trend of events, on 5th
February 2001 she caused a writ
to be issued against the
defendants claiming some
reliefs, including damages for
trespass and perpetual
injunction. Following the death
of her counsel the action was
discontinued. After exchange of
letters between the parties the
2nd defendant company
commenced its commercial farming
activities on the land which
resulted in the total
destruction of cassava, corn,
oil palm trees and other crops
under cultivation without
compensation to the plaintiff,
her children and tenant farmers.
Therefore on 10th
April 2002 the plaintiff caused
to be issued a writ of summons
claiming the following reliefs
against both defendants:
(a)
A declaration of title in
respect of all that piece and
parcel of land situate at Awutu
Ofaadaa in the Central Region
as per the site plan attached
containing an area of
approximate of 212.06 acres and
or
(b)
A declaration that the plaintiff
is the customary freehold owner
of all that piece and parcel of
land containing an approximate
area of 212.06 acres as per the
site plan attached.
(c)
Damages for trespass.
(d)
An order for the recovery of
possession of all that area of
land containing an approximate
area of 212.06 acres as per the
site plan attached.
(e)
A perpetual injunction
restraining the defendants,
their agents and privies and or
assigns from further alienation
of the plaintiff’s land as per
the site plan attached.
(f)
A perpetual injunction
restraining the defendants,
their agents and privies and or
assigns from registering the
land subject matter of this
dispute at any Land Commission
in Ghana.
(g)
Costs and any further orders as
this Honourable Court may seem
fit.
The
defendants deny that the chief
of Ofaadaa, Nai Otabil Ashalley
II made a customary grant of
stool land in his lifetime to
the plaintiff. It is the stand
of the 1st defendant
that during the period 1945 to
1956 the reigning chief of
Ofaadaa who was the custodian of
Awutu Ofaadaa stool lands was
ill and a nine member committee
was put in place to superintend
over Awutu Ofaadaa stool lands.
That means Nai Otabil Ashalley
II was not in the position to
make a gift of stool land to the
plaintiff in 1947 personally.
According to the 1st
defendant, the plaintiff who is
her mother, had inherited other
farm lands from at least six
deceased relatives which she
controls. He also contends that
a ruling of the Awutu
Traditional Council confirms his
right as chief of Ofaadaa to
hold all Ofaadaa stool lands in
trust for the lineage of Okomfo
Ashalley, the originator of
Ofaadaa village. The defendants
counterclaim for the following
reliefs:
(a)
A declaration that the first
defendant as chief of Ofaadaa
and as confirmed by the several
rulings of the various fora
before whom he was made to
appear by plaintiff either
personally or through disguised
agents is proper custodian of
Ofaadaa lands inclusive of what
is being claimed by plaintiff
and the only one who can grant
any valid lease to farmers.
(b)
An order that the agreement
reached between the 1st
defendant and 2nd
defendant is valid as it was
contracted by parties at equal
lengths appropriately seized
with the legal capacity to
contract and therefore should
not be disturbed.
(c)
A perpetual injunction
restraining the plaintiff, her
privies, agents and assigns from
interfering in any dealings in
Ofaadaa lands as custom demands.
(d)
Plaintiff must be mulcted in
punitive and exemplary costs for
the multiplicity of actions –
not a single one of which she
was successful.
The trial
High Court dismissed the
plaintiff’s claim and entered
judgment for the defendants in
respect of their counterclaim.
At pages 74 and 73 of the record
of appeal we have the concluding
portion of the judgment which
made pronouncement on some
findings of fact which could be
considered as crucial to the
determination of the suit. That
portion of the judgment is
reproduced below as follows:
“There is
evidence before me that the 1st
defendant consulted the
plaintiff about the lease to the
2nd defendant
together with elders of the
family and they all agreed.
Counsel for the plaintiff
referred the court to the case
of Golighty vrs. Ashrifi (supra)
that a stool cannot alienate
land in possession of a subject
without her consent. That, being
the law, I think has been
satisfied because there is
uncontroverted evidence that the
plaintiff was informed and she
consented to the same. That is
if she was in possession of the
land at all. I say so because
there is evidence before me that
she was not even in actual
possession of the land in issue.
All the defence witnesses who
are plaintiff’s own sisters gave
evidence to the effect that the
land in issue was never gifted
to her. The 1st
defendant gave evidence as to
why there was the need for the
lease i.e. to renovate the
palace. He is the chief and as
the custodian of the stool land
can lease out a portion for that
purpose with the consent and
concurrence of the elders and
principal members of the
family. This I think he did. He
even gave portions of the
proceeds to the members of the
family. This piece of evidence
is not denied.
I do not also
believe the plaintiff’s evidence
that she together with her
children and the tenants farmed
212.06 acres of land. Her own
witness could not tell the size
or acreage he farmed, from 60 to
40 to 10 and then finally 2
acres. On the preponderance of
probabilities I think I believe
the defendants’ story against
the plaintiff. I do not think
that that the plaintiff is
entitled to the reliefs set out
in her statement of claim and
her writ is hereby dismissed as
unmeritorious. I believe the [1st
] defendant as the chief
of the village and custodian of
the stool lands subject to
certain conditions can lease off
the stool lands and he has
fulfilled those conditions to my
satisfaction. I therefore grant
him his reliefs in his
counterclaim.”
The plaintiff
appealed and before the Court of
Appeal she filed the following
grounds of appeal:
(a)
Judgment is against the weight
of the evidence adduced by the
plaintiff.
(b)
The learned trial judge erred in
law when he failed to
sufficiently consider whether or
not the plaintiff was in
possession of the land as
against the defendants who could
not show a better title.
(c)
The learned trial judge erred in
law by not sufficiently
considering whether or not
compensation was paid to
plaintiff after she was
dispossessed of the land in
dispute by the defendants.
(d)
The learned trial judge erred in
law by not sufficiently
considering whether or not a
grantor of land can eject the
grantee without the grantee’s
consent.
The unanimous
judgment of the Court of Appeal
hit the nail right on the head
when it identified the core
issue of the litigation which
could be dealt with in the first
ground of appeal namely: “The
judgment was against the weight
of evidence”. When the issues
raised in respect of that ground
of appeal were determined in
favour of the defendants the
remaining grounds of appeal
became irrelevant. At page 133
of the record of appeal this is
what came out of the judgment of
the Court of Appeal:
“Having then
examined the pleadings and
evidence on record, the
fundamental issue in controversy
in the suit was whether or not
the land in dispute was gifted
to the appellant by Nai Otabil
Ashalley II, the late Chief of
Awutu Ofaadaa in or around 1947.
This being the core issue to be
determined, grounds (b), (c),
(d) as stated above are all
misconceived”
The
conclusion of the judgment of
the Court of Appeal is at pages
135 and 136 of the record of
appeal as follows:
“The legal
principles enunciated in the
above cases all relate to
customary gift of land
individually owned as against
land owned communally by a
family or stool as in this suit.
For such land owned by a family
or a stool, I think that a
further essential requirement to
validate the gift would be for
the donor to secure the consent
of the principal family members
for the grant. The presence of
such principal members to
witness the ceremony will thus
be paramount to validate such a
gift.
At the trial
of this suit, the appellant led
no evidence to prove any of the
essential requirements a gift
made under customary law. No
evidence was led as to the
“aseda” performed. Was it in the
form of drink or money? All the
appellant said was that her
father, mother and uncle were
present when the gift was made
to her, were all dead.
The
respondent led credible evidence
through DW1 and DW2, to
demonstrate that no such gift
was made to the appellant. At
the time she testified she was
68 years, she denied any gift of
the stool land to the appellant.
She testified that applicant and
her children were all present at
the family meeting when a
decision was taken to lease the
land to the 2nd
respondent. DW2 was Kofi
Nyarko. The appellant was the
sister of DW2’s mother. DW2
testified that he was in Ghana
in 1947. At the time he had
grown beard, so if the chief
ever made a gift of the stool
land to the appellant, he would
have been invited. The combined
effect of the evidence of DW1
and DW2 was to the effect that
no gift was made to the
appellant. Their evidence
corroborated the evidence of the
1st respondent, the
Chief of Awutu Ofaadaa. …
From the
record of appeal, there is
credible evidence adduced by
respondents demonstrating that
the appellant’s claim or case
was not reasonably probable and
as such should lose the
contest. The ground that the
appeal is against the weight of
evidence is thus unsustainable
since, the appellant failed
woefully to prove the gift to
her. The appeal therefore fails
and it is hereby dismissed.”
Again the
plaintiff was not satisfied with
the verdict of the appellate
court and appealed to this
court. Her grounds of appeal
before this court are as
follows:
(a)
Judgment is against the weight
of the evidence adduced by the
plaintiff.
(b)
The Court of Appeal erred in law
when it failed to sufficiently
consider whether or not the
plaintiff was in possession of
the land as against the
defendants who could not show a
better title.
(c)
The Court of Appeal erred in law
by failing to sufficiently
consider whether or not
compensation was paid to
plaintiff after she was
dispossessed of the land in
dispute by the defendants.
(d)
The Court of Appeal erred in law
by not sufficiently considering
whether or not a grantor of land
can eject the grantee without
the grantee’s consent.
(e)
The Court of Appeal erred by
failing to find that the land
was indeed gifted to the
plaintiff/appellant/appellant.
In dealing
with the issue of the alleged
gift by Nai Otabil Ashalley II
to the plaintiff, it must be
emphasized that there is a
distinction between a gift from
an individual owner of land to a
beneficiary and a gift of stool
land by an occupant of a stool,
which is more appropriately
described as a grant. In the
case of a personal gift the
owner’s decision is not subject
to approval or consent from
anyone. The only condition is
that it should not be done in
secret. It should be witnessed
by others, preferably by members
of the immediate family of the
donor who are not entitled to
question his decision provided
they have no interest in the
property which he intends to
give away. It does not end
there. The beneficiary of the
gift expresses his acceptance
and gratitude for the gift by
payment of “aseda” in any form
depending on the circumstances
of each case. In the case of
Yoguo & Anr. V. Agyekum & Ors.
Ollennu JSC explained the law on
the essential requirements of
customary gift as follows:
“A valid
gift, under customary law, is an
unequivocal transfer of
ownership by the donor to the
donee, made with the widest
publicity which the
circumstances of the case may
permit. For purposes of the
required publicity, the gift is
made in the presence of
independent witnesses, some of
whom should be members of the
family of the donor who would
have succeeded to the property
if the donor had died intestate
and, also, in the presence of
members of the family of the
donee who also would succeed to
the property upon the death of
the donee on intestacy. The gift
is acknowledged by the donee by
the presentation of drink or
other articles to the donor; the
drink or articles are handed to
one of the witnesses —
preferably a member of the
donee's family, who in turn
delivers it to one of the
witnesses attending on behalf of
the donor; libation is then
poured declaring the transfer
and the witnesses share a
portion of the drink or other
articles. Another form of
publicity is exclusive
possession and the exercise of
overt acts of ownership by the
donee after the ceremony: see
Kwakuwah v. Nayenna, (1938)
W.A.C.A. 165, Asare v. Teing,
[1960] GLR 155, Addy v. Armah,
(1960) Oll. C.L.L. 240 and
Asante v. Bogyabi. [1966] GLR
232. Sarbah emphasizes these
principles of acts of transfer
and acceptance and proof of
those two acts when he says in
his Fanti Customary Laws (2nd
ed.) at pp. 80-81: "Gift
consists in the relinquishment
of one's own right and the
creation of the right of
another, in lands, goods, or
chattels, which creation is only
completed by the acceptance of
the offer of the gift by that
other . . .
To constitute
a valid gift, an intention of
giving or passing the property
in the thing given to the donee
by the donor, who has power so
to do, is necessary . . .
The giving
and acceptance must be proved
and evidenced by such delivery
or conveyance as the nature of
the gift admits of.” See also
Anaman v. Eyeduwa [1978] GLR
114, Adamu v. Administrator
General [1987-88] 2GLR 460.”
However, in
the case of a grant of stool
land by the occupant of the
stool, the chief or the head of
family in case of family land
which is communally owned, such
grant is always made subject to
the approval and consent of the
elders of the stool or the
principal members of the family.
See France v. Golightly; France
v. Addy (Consolidated) [1991] 1
GLR 74, Odametey v. Clocuh &
Anr. [1989-90] 1 GLR 14,
Republic v. High Court, Accra,
Ex Parte Lands Commission,
[1995-96] 1 GLR 208. In this
case we have to examine the
totality of the evidence adduced
at the trial before us and to
ascertain the category in which
we are to place the supposed
gift of the late chief of Awutu
Ofaada to the plaintiff in 1947.
It is not
disputed that the land which is
the subject matter of this
litigation is Awutu Ofaadaa
stool land. It would be expected
therefore that a grant of that
land to a stool subject would
follow a laid down customary law
principle of alienation of stool
or family land. In the instant
appeal when the plaintiff gave
evidence on oath at the trial
she testified as to how the land
in dispute was gifted to her at
page 5 of the record of appeal
as follows:
“I got this
land when my uncle Otabil
Ashalley II gave it to me to
farm on. Otabil was the chief of
Ofadaa stool. There were
witnesses present when Otabil
gave me the land. Though they
are now deceased, they were my
mother Tetewah, my father Kojo
Teiko and Kofi Ashong. After the
presentation custom was
performed. I presented a bottle
of schnapps as aseda to my
uncle. That took place during
that … eclipse of the sun. The
size of the land is measured and
my lawyer can tell the exact
figure. I planted cassava, maize
and palm on the land , the
second defendant destroyed all
these crops.”
Our first
observation is that the details
of the plaintiff’s sworn
evidence quoted above do not
answer to the requirements of
customary law respecting grant
of stool land by a stool to a
subject. There is no evidence of
approval and consent by elders
of the stool. The description of
what supposedly happened was at
best a representation of a
private donation of what was
indisputably stool land in the
presence of close family
members, including the
plaintiff’s father. That answers
more to a disposal of a personal
and not stool property by the
then chief of Ofaadaa as a gift
to the plaintiff.
The
conclusion by the trial court
which was confirmed by the Court
of Appeal to the effect that no
gift of stool land was made by
Nai Otabil Ashalley II to the
appellant should mean that any
claim whatsoever based on the
supposed ownership of the land
in dispute cannot be sustained.
Indeed the Court of Appeal had
no cause to disturb the findings
of the trial court. Its decision
confirmed the vital finding of
the trial court that the
plaintiff failed to discharge
the evidential burden placed on
her by her pleading to the
effect that the land in dispute
was given to her as a gift by
her late uncle, Nai Otabil
Ashalley in 1947 when he was
chief of Ofaadaa.
It is in this context that we
ought to look at the grounds of
appeal before this court. In the
first place Grounds (a) - (d) of
the grounds of appeal are a
virtual reproduction of the
grounds of appeal before the
Court of Appeal with the
necessary modifications. The
only addition is Ground (e) of
the grounds of appeal before
this court, that is “The Court
of Appeal erred by failing to
find that the land was indeed
gifted to the
plaintiff/appellant/appellant.”
In any case we do not think that
that additional ground (e) makes
any difference. It is not
surprising therefore that the
appellant’s statement of case in
this appeal in respect of
Grounds (a) – (d) of this appeal
is a replica of the written
submissions of appellant’s
counsel before the Court of
Appeal. Since the Court of
Appeal in its judgment assigned
detailed reasoning to its
conclusion that Ground (a), that
is, “The judgment is against the
weight of evidence”, is
unsustainable, it would be
expected that in this appeal the
written submissions of the
appellant’s counsel would at
least devote some attention to
the analysis by the Court of
Appeal of the evidence adduced
at the trial for its decision,
which is the subject matter in
this appeal. That was not done.
In our view, therefore, there is
no effective challenge to the
ruling of the Court of Appeal’s
judgment before this court. For
the reasons given in this
judgment we dismiss the appeal
as being without merit.
B. T. ARYEETEY
JUSTICE OF
THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF
THE SUPREME COURT
DR. S. K DATE-BAH
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
GEORGE AGBEKO,
JAN CHAMBERS FOR THE PLAINTIFF/
APPELLANT/ APPELLANT.
MAXWELL KOFI
AMOAKOHENE FOR THE DEFENDANTS/
RESPONDENTS/ RESPONDENTS.
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