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Stool land - 1992 constitution -
Application under Article 131(2)
- Special leave - Whether or
not the two elders had capacity
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HEADNOTES
In the Circuit Court the
respondent claimed against the
applicant among other reliefs
for a declaration that six plots
of land at Twindurase within
Assuowin Stool land in the
Ashante Region were granted to
him in 1999 by Nana Etwi Kwaku,
Odikro of Twindurase and Opanin
Akwasi Addai, Ahwerewa
Abusuapanyin of Kotwi and that
the grant was endorsed and
ratified in 2003 by applicant
being the occupant of the
Assuowin Stool. The respondent
stated that when the applicant
ratified his grant he permitted
him to develop the plots pending
the issuance of formal
allocation papers upon
completion of a re-demarcation
scheme applicant was then
preparing for the area. The
respondent constructed a wall
around four of the plots and
partially developed the other
plots and placed some cement
blocks on them. Respondent
subsequently contacted applicant
for the allocation papers and,
even though he was prepared to
pay customary drinks to
applicant in order to be given
the papers, applicant refused to
sign them for him hence the
suit. Applicant filed a defence
wherein he denied the grant to
respondent and contended in the
alternative that Nana Etwi Kwaku
and Opanin Akwasi Addai had no
capacity to grant the land to
respondent. He also denied
ratifying or endorsing the
grant. The trial Circuit Court
judge also found on the evidence
that applicant ratified the
grant that was made to
respondent. He therefore
entered judgment for respondent.
The applicant being dissatisfied
with the judgment appelled
against it to the Court of
appeal.Strangely, in his written
submission in the Court of
Appeal, respondent in whose
favour the trial court entered
judgment questioned the holding
of the judge that Nana Etwi
Kwaku as Odikro and the
caretaker of Assuowin stool had
capacity to grant the Divisional
Stool land.
HELD
In the circumstances, I will
exercise my discretion and grant
special leave to the applicant
to appeal to this court. The
pursuant notice of appeal shall
be filed within seven (7) days.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Awuku v Tetteh [2011]1 SCGLR 366
Mensah v Ghana Commercial Bank
(1957) WALR
Quarm v. Yankah (1930)1 WACA 80
Dolphyne v. Speedine [1996-97]
SCGLR 373;
Kotey v. Korletey [2000]SCGLR
417
Gyimah v. Abrokwa [2011]1 SCGLR
406.
Dolphyne v. Speedine [1996-97]
SCGLR 373;
Kotey v. Korletey [2000]SCGLR
417
Gyimah v. Abrokwa [2011]1 SCGLR
406.
BOOKS REFERRED TO IN JUDGMENT
Customary Land Law in Ghana,
1962 Ollennu
Principles of Customary Law Land
in Ghana
DELIVERING THE LEADING JUDGMENT
PWAMANG,
JSC.
COUNSEL
MATTHEW APPIAH WITH HIM ALEX
OBENG ASANTE FOR THE DEFENDANT/
APPELLANT/APPLICANT.
KOFI ADUWADOUR FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
---------------------------------------------------------------------------------------------------------------------
R U L I N G
---------------------------------------------------------------------------------------------------------------------
PWAMANG, JSC.
On 27th June, 2016,
the Court of Appeal dismissed an
appeal filed by the defendant/
appellant /applicant, hereafter
referred to as “the applicant”
against a judgment of the
Circuit Court, Kumasi. The
Applicant felt aggrieved by the
decision of the Court of Appeal
and since it was in respect of a
judgment of a court lower than
the High Court, he applied for
leave of the Court of Appeal in
order to appeal against its
decision. The Court of Appeal
dismissed that application for
leave upon a preliminary
objection raised by the
plaintiff/respondent/respondent
who will be referred to as “the
respondent” in this ruling. The
Applicant has therefore brought
this application under Article
131(2) of the 1992 constitution
praying for special leave of
this court to appeal against the
judgment of the Court of Appeal
dated 27th June,
2016.
In the Circuit Court the
respondent claimed against the
applicant among other reliefs
for a declaration that six plots
of land at Twindurase within
Assuowin Stool land in the
Ashante Region were granted to
him in 1999 by Nana Etwi Kwaku,
Odikro of Twindurase and Opanin
Akwasi Addai, Ahwerewa
Abusuapanyin of Kotwi and that
the grant was endorsed and
ratified in 2003 by applicant
being the occupant of the
Assuowin Stool. The respondent
stated that when the applicant
ratified his grant he permitted
him to develop the plots pending
the issuance of formal
allocation papers upon
completion of a re-demarcation
scheme applicant was then
preparing for the area.
The respondent constructed a
wall around four of the plots
and partially developed the
other plots and placed some
cement blocks on them.
Respondent subsequently
contacted applicant for the
allocation papers and, even
though he was prepared to pay
customary drinks to applicant in
order to be given the papers,
applicant refused to sign them
for him hence the suit.
Applicant filed a defence
wherein he denied the grant to
respondent and contended in the
alternative that Nana Etwi Kwaku
and Opanin Akwasi Addai had no
capacity to grant the land to
respondent. He also denied
ratifying or endorsing the
grant.
After a full trial in which
respondent testified and called
two witnesses and applicant
testified without calling any
witness, the trial judge held
that Nana Etwi Kwaku as Odikro
of Twindurase and Opanin Akwasi
Addai, as Ahwerewa Abusuapanyin
of Kotwi acted on behalf of
Assuowin Stool in granting the
land to respondent. The trial
Circuit Court judge also found
on the evidence that applicant
ratified the grant that was made
to respondent. He therefore
entered judgment for respondent.
The applicant being dissatisfied
with the judgment appelled
against it to the Court of
appeal.
Strangely, in his written
submission in the Court of
Appeal, respondent in whose
favour the trial court entered
judgment questioned the holding
of the judge that Nana Etwi
Kwaku as Odikro and the
caretaker of Assuowin stool had
capacity to grant the Divisional
Stool land. At paragraphs 38 and
39 of the Judgment of the Court
of Appeal, it is stated as
follows:
“Contrary to the view the trial
judge held of the capacity of
Nana Etwi Kwaku, counsel for
plaintiff/respondent argued that
as a caretaker, Nana Etwi Kwaku
lacked capacity to make the said
grant. He referred to the
definition and function of an
“Odikro” as stated in the Law of
Chieftaincy in Ghana authored by
His Lordship Justice S. A.
Brobbey (retired) in which the
learned judge stated at page 50
to 51 that:
“Adikrofo is alleged to have
originated from the concept of
getting a caretaker to oversee
the lands and properties of the
divisional chief of the area.
He is the “Odikro” on behalf of
the Obrempong or divisional
chief and as such is in the
position of a supervisor or a
caretaker.”
39. The question raised by that
definition of a caretaker is
whether or not Nana Etwi Kwaku
had capacity to alienate the
plots as an agent of the
Assuowin Stool. Counsel found
the answer in Awuku v Tetteh
[2011]1 SCGLR 366 at page
4 of the written submission
that:
“Thus, the statement of law is
that a grant by “Odikro” who is
the caretaker of stool lands is
null and void because he lacks
capacity to do so and nothing
passes or is received legally
under the transaction unless the
grant is adopted or ratified by
the occupant.”
The Court of Appeal continued as
follows in its judgment:
“But the above submission rather
gave counsel for the defendant
ammunition to pose the question
whether an act which is null and
void could in anyway be ratified
at all?”
In a bid to address the
submissions of the parties
referred to above, the Court of
Appeal reviewed the general
principles of the customary law
of Ghana on valid grants of
stool lands by the occupant, his
councilors, caretakers and
agents and stated as follows at
paragraphs 44, 45 and 46 of its
judgment:
“44. According to
Ollennu, in the book Principles
of Customary Land Law in Ghana,
1962 at page 127, the one
indispensable person in the
alienation of stool or skin land
is the occupant of the stool or
skin. This is because the
occupant of the stool is
considered the embodiment of all
his subjects and the custodian
of the land which is considered
to belong to the dead, the
living who are few and the
countless numbers yet unborn.
Therefore any dealing with the
land which is adverse to the
interest of the stool as a whole
is not countenanced at all.
45. The law is
therefore well settled that for
a grant of stool land to be
valid, the appropriate body of
persons made up to the occupant
of the stool and his principles
councilors must grant it. Aside
that, any grant by a single
person, he being the chief or a
councilor or a body of persons
not properly constituted is
declared as void not voidable.
So a grant by the occupant of
the stool alone without the
knowledge, consent and
concurrence of his councilors,
or by the occupant of the stool
with consent and occurrence of a
minority of the councilors are
all null and void – see the
Awuku case (supra).
46. If the grant of
stool land by those office
holders in those situations is
considered null and void, then
the grant by an Odikro or a
caretaker such as Nana Etwi
Kwaku is most untenable. I
noticed however that in the
Awuku case, the appellant’s
uncle who was his grantor was
described as a “mere
caretaker”. The court also
stated that the appellant’s
uncle described himself as the
“donor” of the land and that the
grant was not made in the name
of the Osu Mantse to be ratified
later.”
The statement by the Court of
Appeal that the Supreme Court in
Awuku v. Tetteh held that
a grant of stool land by the
occupant of the stool with the
consent and concurrence of a
minority of the councilors is
null and void is not entirely
correct. I have closely read
that case and do not find that
holding in it. In a similar
vein, the position by the Court
of Appeal that it is settled law
that a grant of stool land by
the occupant of the stool and
minority of his councilors is
null and void is in fact
inconsistent with what is stated
at page 128 of N. A. Ollennu’s
book; Principles of Customary
Law Land in Ghana which was
referred to by the court in its
judgment. In that book the
position of the customary law is
stated to be that grant of stool
land by the occupant acting with
minority of his councilors is
not void but only voidable and
may be set aside by a court on
application by the other
councilors acting timeously. See
also the cases of Mensah v
Ghana Commercial Bank (1957)
WALR and Quarm v. Yankah
(1930)1 WACA 80.
I therefore find that prima
facie, the Court of Appeal
committed an error of law
apparent on the record by
stretching this court’s decision
in Awuku v. Tetteh to
cover a fundamental principle of
customary law that was not
considered in that case. A
reading of the whole of its
judgment shows that the Court of
Appeal assigned other reasons
for dismissing the applicant’s
appeal while varying the orders
of the trial court.
Nevertheless, the prima facie
error of law explained above is
serious and needs to be
determined by this court to
avoid confusion as to the
correct state of the customary
law on grants of stool lands. An
appeal will also afford an
opportunity for the Supreme
Court to clarify the legal
incidence and role of an Odikro
in the grant of stool lands.
Respondent has vehemently
opposed this application for
special leave to appeal but from
the record before me he is the
source of the uncertainty that
has been created as to the role
of the Odikro in the grant of
stool lands and the correct
state of the law on void and
voidable grants of stool lands.
It therefore lies ill in his
mouth to complain.
One of the grounds on which this
court will grant special leave
to appeal in exercise of its
jurisdiction conferred by
Article 131(2) of the 1992
Constitution is where there is a
prima facie error of law on the
face of the record as I have
found in this case. Another
ground is where a decision on a
point of law will inure to the
benefit of the general public as
I have pointed out above. See
the cases of Dolphyne v.
Speedine [1996-97] SCGLR 373;
Kotey v. Korletey [2000]SCGLR
417 and Gyimah v. Abrokwa
[2011]1 SCGLR 406.
In the circumstances, I will
exercise my discretion and grant
special leave to the applicant
to appeal to this court. The
pursuant notice of appeal shall
be filed within seven (7) days.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
MATTHEW APPIAH WITH HIM ALEX
OBENG ASANTE FOR THE DEFENDANT/
APPELLANT/APPLICANT.
KOFI ADUWADOUR FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
R U L I N G
PWAMANG, JSC.
On 27th June, 2016,
the Court of Appeal dismissed an
appeal filed by the
defendant/appellant/applicant,
hereafter referred to as “the
applicant” against a judgment of
the Circuit Court, Kumasi. The
Applicant felt aggrieved by the
decision of the Court of Appeal
and since it was in respect of a
judgment of a court lower than
the High Court, he applied for
leave of the Court of Appeal in
order to appeal against its
decision. The Court of Appeal
dismissed that application for
leave upon a preliminary
objection raised by the
plaintiff/respondent/respondent
who will be referred to as “the
respondent” in this ruling. The
Applicant has therefore brought
this application under Article
131(2) of the 1992 constitution
praying for special leave of
this court to appeal against the
judgment of the Court of Appeal
dated 27th June,
2016.
In the Circuit Court the
respondent claimed against the
applicant among other reliefs
for a declaration that six plots
of land at Twindurase within
Assuowin Stool land in the
Ashante Region were granted to
him in 1999 by Nana Etwi Kwaku,
Odikro of Twindurase and Opanin
Akwasi Addai, Ahwerewa
Abusuapanyin of Kotwi and that
the grant was endorsed and
ratified in 2003 by applicant
being the occupant of the
Assuowin Stool. The respondent
stated that when the applicant
ratified his grant he permitted
him to develop the plots pending
the issuance of formal
allocation papers upon
completion of a re-demarcation
scheme applicant was then
preparing for the area.
The respondent constructed a
wall around four of the plots
and partially developed the
other plots and placed some
cement blocks on them.
Respondent subsequently
contacted applicant for the
allocation papers and, even
though he was prepared to pay
customary drinks to applicant in
order to be given the papers,
applicant refused to sign them
for him hence the suit.
Applicant filed a defence
wherein he denied the grant to
respondent and contended in the
alternative that Nana Etwi Kwaku
and Opanin Akwasi Addai had no
capacity to grant the land to
respondent. He also denied
ratifying or endorsing the
grant.
After a full trial in which
respondent testified and called
two witnesses and applicant
testified without calling any
witness, the trial judge held
that Nana Etwi Kwaku as Odikro
of Twindurase and Opanin Akwasi
Addai, as Ahwerewa Abusuapanyin
of Kotwi acted on behalf of
Assuowin Stool in granting the
land to respondent. The trial
Circuit Court judge also found
on the evidence that applicant
ratified the grant that was made
to respondent. He therefore
entered judgment for respondent.
The applicant being dissatisfied
with the judgment appelled
against it to the Court of
appeal.
Strangely, in his written
submission in the Court of
Appeal, respondent in whose
favour the trial court entered
judgment questioned the holding
of the judge that Nana Etwi
Kwaku as Odikro and the
caretaker of Assuowin stool had
capacity to grant the Divisional
Stool land. At paragraphs 38 and
39 of the Judgment of the Court
of Appeal, it is stated as
follows:
“Contrary to the view the trial
judge held of the capacity of
Nana Etwi Kwaku, counsel for
plaintiff/respondent argued that
as a caretaker, Nana Etwi Kwaku
lacked capacity to make the said
grant. He referred to the
definition and function of an
“Odikro” as stated in the Law of
Chieftaincy in Ghana authored by
His Lordship Justice S. A.
Brobbey (retired) in which the
learned judge stated at page 50
to 51 that:
“Adikrofo is alleged to have
originated from the concept of
getting a caretaker to oversee
the lands and properties of the
divisional chief of the area.
He is the “Odikro” on behalf of
the Obrempong or divisional
chief and as such is in the
position of a supervisor or a
caretaker.”
39. The question raised by that
definition of a caretaker is
whether or not Nana Etwi Kwaku
had capacity to alienate the
plots as an agent of the
Assuowin Stool. Counsel found
the answer in Awuku v Tetteh
[2011]1 SCGLR 366 at page
4 of the written submission
that:
“Thus, the statement of law is
that a grant by “Odikro” who is
the caretaker of stool lands is
null and void because he lacks
capacity to do so and nothing
passes or is received legally
under the transaction unless the
grant is adopted or ratified by
the occupant.”
The Court of Appeal continued as
follows in its judgment:
“But the above submission rather
gave counsel for the defendant
ammunition to pose the question
whether an act which is null and
void could in anyway be ratified
at all?”
In a bid to address the
submissions of the parties
referred to above, the Court of
Appeal reviewed the general
principles of the customary law
of Ghana on valid grants of
stool lands by the occupant, his
councilors, caretakers and
agents and stated as follows at
paragraphs 44, 45 and 46 of its
judgment:
“44. According to Ollennu,
in the book Principles of
Customary Land Law in Ghana,
1962 at page 127, the one
indispensable person in the
alienation of stool or skin land
is the occupant of the stool or
skin. This is because the
occupant of the stool is
considered the embodiment of all
his subjects and the custodian
of the land which is considered
to belong to the dead, the
living who are few and the
countless numbers yet unborn.
Therefore any dealing with the
land which is adverse to the
interest of the stool as a whole
is not countenanced at all.
45. The law is therefore
well settled that for a grant of
stool land to be valid, the
appropriate body of persons made
up to the occupant of the stool
and his principles councilors
must grant it. Aside that, any
grant by a single person, he
being the chief or a councilor
or a body of persons not
properly constituted is declared
as void not voidable. So a
grant by the occupant of the
stool alone without the
knowledge, consent and
concurrence of his councilors,
or by the occupant of the stool
with consent and occurrence of a
minority of the councilors are
all null and void – see the
Awuku case (supra).
46. If the grant of stool
land by those office holders in
those situations is considered
null and void, then the grant by
an Odikro or a caretaker such as
Nana Etwi Kwaku is most
untenable. I noticed however
that in the Awuku case, the
appellant’s uncle who was his
grantor was described as a “mere
caretaker”. The court also
stated that the appellant’s
uncle described himself as the
“donor” of the land and that the
grant was not made in the name
of the Osu Mantse to be ratified
later.”
The statement by the Court of
Appeal that the Supreme Court in
Awuku v. Tetteh held that
a grant of stool land by the
occupant of the stool with the
consent and concurrence of a
minority of the councilors is
null and void is not entirely
correct. I have closely read
that case and do not find that
holding in it. In a similar
vein, the position by the Court
of Appeal that it is settled law
that a grant of stool land by
the occupant of the stool and
minority of his councilors is
null and void is in fact
inconsistent with what is stated
at page 128 of N. A. Ollennu’s
book; Principles of Customary
Law Land in Ghana which was
referred to by the court in its
judgment. In that book the
position of the customary law is
stated to be that grant of stool
land by the occupant acting with
minority of his councilors is
not void but only voidable and
may be set aside by a court on
application by the other
councilors acting timeously. See
also the cases of Mensah v
Ghana Commercial Bank (1957)
WALR and Quarm v. Yankah
(1930)1 WACA 80.
I therefore find that prima
facie, the Court of Appeal
committed an error of law
apparent on the record by
stretching this court’s decision
in Awuku v. Tetteh to
cover a fundamental principle of
customary law that was not
considered in that case. A
reading of the whole of its
judgment shows that the Court of
Appeal assigned other reasons
for dismissing the applicant’s
appeal while varying the orders
of the trial court.
Nevertheless, the prima facie
error of law explained above is
serious and needs to be
determined by this court to
avoid confusion as to the
correct state of the customary
law on grants of stool lands. An
appeal will also afford an
opportunity for the Supreme
Court to clarify the legal
incidence and role of an Odikro
in the grant of stool lands.
Respondent has vehemently
opposed this application for
special leave to appeal but from
the record before me he is the
source of the uncertainty that
has been created as to the role
of the Odikro in the grant of
stool lands and the correct
state of the law on void and
voidable grants of stool lands.
It therefore lies ill in his
mouth to complain.
One of the grounds on which this
court will grant special leave
to appeal in exercise of its
jurisdiction conferred by
Article 131(2) of the 1992
Constitution is where there is a
prima facie error of law on the
face of the record as I have
found in this case. Another
ground is where a decision on a
point of law will inure to the
benefit of the general public as
I have pointed out above. See
the cases of Dolphyne v.
Speedine [1996-97] SCGLR 373;
Kotey v. Korletey [2000]SCGLR
417 and Gyimah v. Abrokwa
[2011]1 SCGLR 406.
In the circumstances, I will
exercise my discretion and grant
special leave to the applicant
to appeal to this court. The
pursuant notice of appeal shall
be filed within seven (7) days.
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
MATTHEW APPIAH WITH HIM ALEX
OBENG ASANTE FOR THE DEFENDANT/
APPELLANT /APPLICANT.
KOFI ADUWADOUR FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
|
