Customary law – License – Forfeiture – Licensee liable to forfeiture for denial of landlord’s title – Circumstances in which laches and acquiescence may bar forfeiture – Circumstances in which court may grant relief.

The High Court found that although the plaintiffs were only licensees of the 2nd defendant’s family, throughout the history of the land, the plaintiff’s family had persistently albeit mistakenly laid claim to the land as the owner. The court however declined the 2nd defendant’s claim for forfeiture on grounds that he was guilty of laches and acquiescence. On appeal the Court of Appeal held that laches and acquiescence were not valid reasons to deny the claim of forfeiture. On a further appeal to the Supreme Court,

Held: (1) By custom a tenant or licensee was liable for forfeiture upon denial of the title of the grantor but the court might, when appropriate, grant relief against forfeiture and impose an injunction instead. Borketey v Larkai (1953) DC (Land) ’52-’55, 142, Ameoda v Pordier [1967] GLR 479, CA, Ayikai II v Okai II (1953) DC (Land) ’52-’55, 146 referred to.

(2) There was no reason why laches and acquiescence could not bar a claim of forfeiture but the facts in support of such plea must relate to immediate act leading to the claim for forfeiture and not to past incidents. The plaintiffs’ unsuccessful claims previously to the land could have given rise to a claim of forfeiture then, but not decades later. What ought to have been considered was the conduct of the plaintiffs in challenging the title of the 2nd defendant in the present action. The 2nd defendant having counterclaimed for forfeiture, no question of laches or acquiescence arose.

(3) The social implications of such a drastic remedy as forfeiture were such that this court ought to be slow to grant it. After all the numerous family members and other occupants farming the land could not be held responsible for the plaintiffs’ reckless intransigence in asserting the title which had so often been found to be deficient. An order of perpetual injunction restraining the plaintiffs and their successors from asserting title to the land would be granted instead.

Cases referred to:

Ameoda v Pordier [1967] GLR 479, CA.

Ayikai II v Okai II (1953) DC (Land) ’52-’55, 146.

Borketey v Larkai (1953) DC (Land) ’52-’55, 142.

Kuma v Kuma (1936) 5 WACA 4.

APPEAL to the Supreme Court against the judgment of the Court of Appeal.

Peter Ala Adjetey with him James Ahenkorah and Col Asante for the appellants.

Joe Reindorf, with him, George Thompson for the respondents.

AMUA-SEKYI JSC. In this case, both the trial High Court and the Court of Appeal have found against the plaintiffs on the facts. Those findings are that the plaintiffs are not owners of the land claimed on the writ but rather that they are licensees of the second defendant’s family. In Kuma v Kuma (1936) 5 WACA 4 at 8-9 their Lordships of the Privy Council described the nature of this kind of customary land holding as follows:

“It appears therefore, that among the natives, occupation of land is frequently allowed for the purpose of cultivation but without the ownership of the land being parted with. The owner of the land, being willing to allow such occupation so long as no adverse claim is made by the occupier; the occupier knowing that he can use the land as long as he likes provided he recognises the title of the owner.”

I have not been persuaded by the arguments canvassed before us that the findings of fact made by the learned trial judge and concurred in by the Court of Appeal are so perverse as to be deserving of a review. The only issue is whether that part of the judgment of the Court of Appeal, which declares the second defendant to be entitled to claim forfeiture of the licence should stand.

By custom a tenant or licensee is liable to have his tenancy or licence forfeited if he denies the title of his grantor: Borketey v Larkai (1953) DC (Land) ’52-’55, 142; Ameoda v Pordier [1967] GLR 479, CA. But the court has power, in a proper case, to grant relief against forfeiture and impose an injunction instead. In Ayikai II v Okai II (1953) DC (Land) ’52-’55, 146 in spite of earlier litigation which established that the stool of the plaintiff was the owner of the land and the family of the defendants only a caretaker for the stool, the defendants persisted in making grants without the knowledge and consent of the plaintiff and prevented him and his messengers from entering the land. In an action for the ejectment of the defendants from the land, recovery of possession and an injunction, the court took note of the hardship that would be caused in ejecting members of the family of the defendants from the land and granted only an injunction restraining them from alienating any

“Throughout the trial of this case I observed that the plaintiffs seem to lack knowledge about how the Owoo lands were acquired and its exact identity. They have however throughout the history of the land thought mistakenly but honestly that Okoman village was the bona fide property of their family, founded on the Owoo land and this has not been unknown to the 2nd defendant’s family. In both the Legon and the Achimota Acquisition they did present such a case. The 2nd defendant’s title had been made known to them since the Achimota Acquisition but they did nothing about it. They are therefore estopped by conduct and laches from seeking forfeiture of the occupation of the Okoman village. Her claim in that regard will therefore be refused.”

“I cannot conceive how the inaction of the 2nd defendant’s family which had positively enriched (or sought to enrich) the pockets of the plaintiffs could have amounted to laches and acquiescence whose compass, at least, must embrace the expenditure of money by the plaintiffs upon their mistaken belief as to their legal rights. Laches and acquiescence were no valid reasons to deny the 2nd defendant her right to forfeiture exercisable at her option whenever her title was challenged.”

As a matter of principle, I cannot see any reason why laches and acquiescence should not bar a grantor from exercising his right to forfeiture. However, the laches and acquiescence must relate to the immediate act leading to the claim for forfeiture and not to incidents in the past, which might at the time have grounded such a claim.

In this case, even though the stand taken by the plaintiffs at the Achimota acquisition, where Jackson J described their evidence of title as manufactured, might have given a rise to a claim forfeiture, it cannot be relied upon decades later as proof of denial of title so as to render the licence liable to forfeiture. What must now be looked at is the conduct of the plaintiffs in mounting the present action in which they clearly challenge the title of the family of the second defendant. Having from the inception of the suit counterclaimed for forfeiture, no question of laches or acquiescence of the part of the second defendant can arise.

It is, however for the court to decide whether the ends of justice would be best served by granting this drastic remedy. I think the social implications of granting the claim for forfeiture are such that this court ought to be slow to consider such a drastic step. After all, the numerous family members and strangers farming on the land are not responsible for the reckless intransigence of the plaintiffs in seeking to assert a title which has so often been found to be deficient.

I would therefore grant instead a perpetual injunction restraining the plaintiffs and their successors from asserting title to the land described on the writ by action or otherwise. Subject to this, I would dismiss the appeal.