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Land -
Ownership
- Statutory Declaration -
Laches and acquiescence
- Wether Statutory
Declaration declared and
registered at the Lands Registry
was wrongful, unlawful, illegal
and on grounds of fraud -
Wether or not the said land was
purchase by defendants
ancestress - Whether or not the
respondents were their
licensees.
HEADNOTES
The issues presentedl, upon a
cursory reflection, would appear
simple but they are not that
simple. They raise very
interesting legal and factual
conundrums,. From the evidence
on record, both parties were ad
idem that: (i) the
appellants founded the disputed
land as first settlers so they
were the allodial title holders
to the disputed land and (ii) the
respondents were strangers who
came to settle on the land.
Where they parted ways was when
the respondents claimed they
acquired ownership of the
disputed land by purchase
against appellants’ contention
that respondents were their
licensees.-
HELD :-
We agree with the trial court that the
respondent family has possessory
and user rights over the
disputed land subject to the
recognition of appellant’s
allodial ownership to same. As
allodial owners, it was wrong
for the respondent to attempt in
any way, to fetter the fishing
and farming rights of the
appellant’s family members over
the wet and dry creeks on the
disputed land. It is therefore
our candid view that the Court
of Appeal erred when it set
aside the judgment of the trial
High court on the ground that
the appellant’s family had sold
its absolute interest in the
land to respondent’s family when
there was no evidence to support
that finding. The Court of
Appeal would have been right in
its conclusion if the totality
of the evidence on record had
established that it was the
appellant’s ancestor who indeed
sold the land to the
respondent’s ancestress.
However, this was not the
evidence on record. We
accordingly allow the appeal and
restore the decision of the
trial High Court save the order
that the respondent should
prepare a new Statutory
Declaration to replace the one
that has been set aside.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
STEPHEN K. GERALDO v
GBADAWU II & 2 Others
(unreported judgment of the High
court, Ho, dated 6th
December, 1979, per Coussey,
J.).
OHEMEN v AGYEI, 2 W.A.L.R.
275,
TIJANI v SECRETARY TO THE
GOVERNMENT OF SOUTHERN NIGERIA
[1921] 2 AC 399
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary,
ninth edition
Shorter Oxford English
Dictionary; Deluxe Edition,
‘PRINCIPLES OF CUSTOMARY
LAND LAW IN GHANA, Nii Amaa
Ollenu,
Fanti Customary Law
(1897), Sarbah’s
DELIVERING THE LEADING
JUDGMENT
APPAU, JSC:-
CORAM ADINYIRA, JSC (PRESIDING)
BAFFOE-BONNIE, JSC GBADEGBE, JSC
AKOTO-BAMFO, JSC APPAU, JSC
COUNSEL.
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
M. N. K. ADZANU FOR THE
DEFENDANT/APPELLANT/RESPONDENT
APPAU, JSC:-
The appellant in this
case, who was the plaintiff in
the trial High Court, sued the
respondent as defendant for and
on-behalf of his family or clan,
claiming the following reliefs:
-
1.
A declaration that the land
contained in the schedule to a
Statutory Declaration sworn to
by the defendant dated 8/7/1981
and covered by Land Registry No.
2718/1981 is the property of the
Anyigbe Clan of Agave of which
the plaintiff herein is the
custodian.
2.
An order setting aside as null
and void the Statutory
Declaration declared on 8/7/1981
by the defendant and registered
at the Lands Registry as No.
2718/1981 as wrongful, unlawful,
illegal and on grounds of fraud,
particulars of which are stated
in the Statement of Claim.
3.
A declaration setting aside all
conveyances of parcels of land
by the defendant in respect of
any parcel of land covered by
the land described in the
schedule attached to the Land
Registry No. 2718/1981 declared
by the defendant to any person
whatsoever since 1981.
4.
Perpetual Injunction to restrain
the defendant, his agents,
servants, privies, assigns, etc.
and indeed any other person
claiming and/or deriving title
through the defendant from
having anything whatsoever to do
with the land covered by the
schedule attached to the
Statutory Declaration dated
8/7/1981 contained in Land
Registry No 2718/1981.
The respondent denied
appellant’s claim and asserted
ownership to the land in
question through purchase by his
ancestress called Borkanu. The
respondent, however, did not put
in any counterclaim against the
appellant for title. The trial
High Court granted the
appellant’s prayer in part. The
court came to the conclusion
that the appellant’s family were
the first settlers on the land
and therefore the allodial
owners of the land whilst the
respondent’s family held the
usufructuary rights through
purchase and long possession.
The court however dismissed
entirely reliefs 3 and 4 on the
ground that as usufructuary
holders, the respondents could
deal with the land as they did.
With regard to relief 2, the
court refused to declare the
Statutory Declaration executed
by the defendant null and void
as prayed by the appellant.
Having accepted that the said
Statutory Declaration contained
errors and inaccuracies, the
court set it aside subject to
the execution of a new and a
corrected version by the
respondent, based on the court’s
directions.
Both parties were not
satisfied with the judgment of
the trial High court dated 3rd
February 2012. The respondent
herein, appealed against same to
the Court of Appeal on 22nd
March, 2012 whilst the appellant
also cross-appealed on 2nd
May 2012. The respondent’s main
ground of appeal, inter alia,
was that the judgment was
against the weight of evidence.
He sought a reversal of the
trial court’s decision and an
order declaring his family (the
Gbadawu family) the absolute
owners of the disputed land
exclusive of appellant’s family
or clan. The Court of Appeal
granted the appeal filed by the
respondent and dismissed
entirely the appellant’s
cross-appeal. The Court of
Appeal held that from the
evidence on record, the
respondent’s ancestors purchased
the absolute interest or title
of the appellants in the
disputed land from appellant’s
ancestors, which included the
allodial ownership so the
appellants had no interest
whatsoever in the disputed land.
It is this decision which is on
appeal before us.
The appellant canvassed
only two grounds of appeal and
they are: -
i The court below erred when it
found that
defendant/appellant/respondent
had been in undisturbed and
uninterrupted possession of the
land without identifying what
specific area of land
defendant/appellant/respondent’s
ancestors acquired from
plaintiff/ respondent/
appellant’s ancestors.
ii The court below erred when it
held that the
plaintiff/respondent/appellant’s
ancestors sold their absolute
interest in the land to the
defendant/ appellant/
respondent’s ancestors when
defendant/ appellant/respondent
provided no evidence as to the
nature of the interest their
ancestors purchased from
plaintiff/ respondent/
appellant’s ancestors.
The issues presented in
this appeal, upon a cursory
reflection, would appear simple
but they are not that simple.
They raise very interesting
legal and factual conundrums,
which the Court of Appeal, from
our objective view and
consideration, did not properly
address. From the evidence on
record, both parties were ad
idem that: (i) the
appellants founded the disputed
land as first settlers so they
were the allodial title holders
to the disputed land and
(ii)
the respondents were strangers
who came to settle on the land.
Where they parted ways was when
the respondents claimed they
acquired ownership of the
disputed land by purchase
against appellants’ contention
that respondents were their
licensees. These varied
contentions raised two crucial
questions for determination in
this appeal. They are: -
1.
Did the respondent’s ancestress
or ancestors ever purchase the
disputed land from the
appellant’s ancestors as the
Court of Appeal found? And;
2.
Has the appellant’s family lost
its allodial ownership to the
disputed land as a result of the
alleged purchase?
The trial High court came
to the conclusion that
respondent’s family acquired
title to the disputed land by
purchase as recorded in previous
decisions of the courts
culminating in the judgment of
the High court in the case of
STEPHEN K. GERALDO v GBADAWU II
& 2 Others (unreported judgment
of the High court, Ho, dated 6th
December, 1979, per Coussey,
J.). The trial court, however,
held that the respondents only
purchased the usufructuary
interest in the land from
appellant’s grantee called
Agorviegli alias Gli while the
appellants continued to hold on
to their allodial title or
ownership. The Court of Appeal,
which was given the opportunity
to re-hear the case in the
appeal filed before it, reversed
the trial court on this issue
and held that the respondent’s
ancestors purchased the absolute
interest; (i.e. both the
usufruct and the allodial) in
the land from appellants’
ancestors so every interest the
appellants had in the land had
been extinguished.
It was clear from the
onset that the identity of the
land was never in dispute. By
paragraph 2 of their amended
statement of defence, the
respondents admitted that they
were strangers on the land in
dispute. Their ancestress called
Borkanu came to settle on that
portion of appellants’ land as a
result of a purchase from one
Agorviegli or Gli who was also a
stranger lodging with the
appellant’s ancestors. This was
what transpired during
cross-examination of the
respondent by counsel for the
appellants, as recorded at page
169 of the RoA: -
“Q. You have said the Adutor
creek and its surrounding land
was purchased from Agorviegli by
Mama Borkanu.
A.That is so.
Q. You are relying on Exhibit 2
to say that the land was
purchased by Mama Borkanu from
Agorviegli.
A. Yes, I do. He lodged with the
Anyigbe clan.
Q. Are you saying that a
stranger sold land belonging to
his host?
A. It is not so. At that time he
was in control of the Adutor
lands.
Q. How did he come to control
the Adutor lands?
A. I cannot tell.”
The above testimony of the
respondent established without
doubt that the respondent did
not know the sort of interest
their vendor Agorviegli alias
Gli had in the land he allegedly
sold to them. What he knew, from
his evidence, was that though
Gli was a stranger who came to
lodge with appellant’s ancestor,
he (Gli) was in control of the
disputed land. The respondent
tendered in evidence Exhibit 2
to support his contention that
his family is the owner of the
disputed land by purchase.
Exhibit 2 was evidence led by
one Awudzi Amenyefia who was
said to be a linguist to the
head of appellant’s family, in
support of respondent’s claim of
ownership of the disputed land
by purchase from one Gli in a
case involving respondent’s
ancestors and others. This
testimony was quoted by the
trial court at page 205 of the
RoA and I do not wish to re-call
the whole evidence here. The
evidence was however explicit
that Gli, who purportedly sold
the land to respondent’s
ancestress, was a stranger who
came to lodge with the head of
the Anyigbe clan by name Faname,
whereby Faname permitted him to
fish in the Adutor and some
other creeks forming part of
Anyigbe lands. The interesting
part of Awudzi’s evidence, which
respondents strongly relied on,
was that Gli fled from the area
in the night after he had sold
the disputed land to
respondent’s ancestress. Gli
fled Anyigbe for fear of
repression from the chief of
Agave with whom he had had a
quarrel while lodging with the
head of the Anyigbe clan called
Faname. So clearly, there is no
doubt to the fact that Gli sold
the disputed land to
respondent’s ancestress without
the express consent of his host
who was the head of Anyigbe clan
and who permitted him to
exercise rights over same. That
is the only conclusion that
could be inferred from the
evidence on record, going by the
case set up by the respondent.
So the question is; if the
respondent’s ancestress
purchased the appellant’s family
land from the appellant’s
licencee or grantee, as Gli
could be perfectly described,
without the notice and consent
of the appellants, most
importantly at a time their
licencee was fleeing the land,
could it be said that the
respondent’s ancestors purchased
the land from appellant’s
ancestors as the Court of Appeal
concluded? We do not think so.
It appears the Court of
Appeal assumed, albeit
erroneously, that Agorviegli or
Gli was an ancestor of the
appellant as a result of the
wrong impression created by the
respondent in Exhibit M, which
the appellant tendered in
evidence through the respondent
during cross-examination of the
respondent. Exhibit ‘M’ was an
amended statement of defence
which the respondent had filed
in respect of a case the
appellant initiated against the
respondent and five others at
the Ho High Court in 1987 with
suit No. LS 36/87. That suit
involved the same subject-matter
but the defendants in that case
were the respondent herein and
five others. The appellant
abandoned that case and
instituted this pending one on
appeal before us in 2001 and
this time against the respondent
only. In Exhibit ‘M’, the
respondent described Agorviegli
or Gli as appellant’s ancestor.
It is worth quoting that part of
the cross-examination of the
respondent that appears at page
169 of the RoA.
“Q. Look at this document and
see if it is the amended
statement of defence filed on
your behalf in the case of LS
36/87 intituled TOGBE LUGU
AWADALI & 3 Ors v GBADAWU & & 5
Ors.
A. Yes, it is.
Q. In paragraph 11 of Exhibit
‘M’ you referred to Agorviegli
as the ancestor of the
plaintiff.
A. That is so.”
Whilst in one breath,
respondent described his vendor
Gli as an ancestor of appellant,
in another breath, he admitted
that he was a stranger who came
to lodge with the respondent’s
ancestor, who in turn permitted
him to fish and farm on portions
of his family land; i.e. Anyigbe
lands. It is this portion where
he was permitted to occupy,
which Gli purportedly sold to
respondent’s ancestor before
fleeing Anyigbe in the night
under cover. The question that
arises is; could Gli have sold
the land he was permitted to
farm or fish on to another
stranger without the express
consent of the appellant’s
family, granted respondent’s
narration was true; and if yes,
what interest did he sell?
The totality of the
evidence on record shows that
appellant’s family did not
challenge the presence of the
respondents on the land after
Gli had fled the area. Rather,
they permitted respondent’s
family to also exercise the same
rights Gli was exercising over
the land before he fled, so long
as that occupation did not
affect appellant’s allodial
ownership of the land. It is for
this reason that the appellants
had contended all along that the
respondents were their
licensees.
The law is certain that
long possession by a stranger
with the permission of the
allodial owner, would not confer
ownership of the land upon the
stranger. The authorities are
clear that laches of this nature
do not extinguish the title of
the true owner and do not vest
the stranger-occupier with title
to the land. All it does is that
it prevents the true owner from
recovering possession, and
enables the stranger to retain
the use of the land. In the case
of OHEMEN v AGYEI, 2 W.A.L.R.
275, the court held that;
“The correct position is that
the true owner loses his right
to assert his title to and to
recover possession of the land;
not that the stranger acquires
title to it, though in actual
fact he does thereby acquire
title to it”. Though such a
stranger can deal with the land
as he wishes including granting
conveyances, these interests are
limited to possessory and user
rights and cannot mature to
absolute ownership rights. This
is grounded on the customary law
principle that a stranger cannot
by mere occupation of land of a
stool or clan or family to which
he does not belong, acquire any
real interest in that land, no
matter how long.
As the appellant rightly
asserted in his grounds of
appeal, there is no evidence on
record that suggested in any way
that the ancestors of the
respondent purchased the
absolute title of the appellant
in the disputed land from the
appellant’s ancestors as the
Court of Appeal erroneously
concluded. We wish to quote some
of the erroneous findings of the
Court of Appeal which we think
operated on its mind to come to
the conclusion it did arrive at.
At page 342 of the RoA, the
court wrote:-
“There is evidence that the
defendants and their agents have
been in undisturbed and
uninterrupted possession of the
land since his ancestors
acquired it from the plaintiff’s
clan over a century ago”.
Then at page 344 of the same record,
the court said; “The
plaintiff testified that his
ancestor who founded the Adutor
land was a hunter and having
settled on it he allowed other
strangers to settle on portions
thereof. This is clear evidence
that he had the allodial title
to the land. The clan/family of
the late Awadali continued to
exercise allodial title to the
land until they sold a portion
thereof; being the disputed
property to the ancestors of the
defendants”. {Emphasis
added}
The above findings were
erroneous. There is no evidence
on record to suggest that the
respondent’s family acquired the
disputed land from appellant’s
clan by purchase, though there
is no doubt of the fact that
respondent’s family has been in
possession of the land for
centuries. The Court of Appeal
was misled to come to this
conclusion by the trial court’s
assertion that the respondent’s
family; i.e. (the Gbadawu
family) acquired the land by
purchase. This was the finding
of the trial court which the
Court of Appeal quoted to ground
its erroneous conclusion. It
appears at page 345 of the RoA
and it reads:
“Indeed, the fact that the
defendant’s family had acquired
the disputed land by purchase
has been the sole factor upon
which they either prosecuted or
divested its interest in the
disputed land in a number of
suits. Incidentally, all the
suits terminated in their favour
thus strengthening their hold on
the land…
The Anyigbe per Awudzi
Amenyefia, having acknowledged
the ownership or title of the
Gbadawu family 63 years ago, it
lies foul in the mouth of the
plaintiff herein to dispute the
title of the defendant. The
equities are clearly against the
plaintiff. I therefore hold that
the Gbadawu family acquired the
land many years ago by
purchase”.
After quoting the above
finding of the trial court, the
Court of Appeal continued as
follows: - “The trial court
rightly found that the
plaintiff’s family which held
the allodial title sold the land
to the defendant’s family. The
trial court judge after having
rightly made the above findings
of fact, misapplied the law and
came to the conclusion that the
plaintiff’s family sold the
usufruct title in the land to
the defendant’s family and kept
the allodial title themselves.
With respect to the trial judge,
the said conclusion is not
supported by the evidence on
record”. {Emphasis added}
We wish to stress that,
notwithstanding the trial
court’s finding that the
respondent’s family acquired the
disputed land by purchase, the
court never stated anywhere that
it was purchased from the
appellant’s clan or family. The
Stephen Geraldo case (supra),
which was exhibited as Exhibit
‘6’, on which the respondent
placed great reliance, must be
put in its proper perspective.
It must be emphasized that the
appellant’s family was not a
party to that case. The facts of
that case are that; the
descendant of Gli, Stephen
Geraldo sued the predecessor of
the respondent claiming recovery
of the disputed land on the
ground that Gli pledged it to
respondent’s ancestor but never
sold it. The High Court, per
Coussey, J. in an appellate
decision held that, from the
evidence on record, the
transaction between Gli and
respondent’s ancestor was a sale
but not a pledge. Stephen
Geraldo therefore lost against
respondent’s predecessor. The
appellants were not privy to
that case and there was no
documentary evidence to support
the alleged sale. Again, the
decision did not say that it was
the appellant’s family that sold
the land to respondent’s
ancestor. That decision
therefore, could not in any way
debar the appellant’s family
from challenging any assertion
by the respondent of an interest
which is greater than what his
family acquired from the alleged
sale.
Incidentally, the Court of
Appeal misapprehended the facts
when it came to the conclusion
that it was appellant’s family
that sold the disputed land to
respondent’s family. The trial
court, relying on respondent’s
own testimony, found that it was
Gli who sold the disputed land
to respondent’s ancestress
Borkanu. The trial court then
questioned the authority Gli had
to dispose of the land he was
permitted to use. The trial
court stated: -
“Gli, as a stranger, could have
been given leave and licence to
feed on the land including the
creeks. As a licencee, he has no
power to alienate the land as he
acquired no rights over it…
The defendant, in his evidence
under cross-examination, said
Gli sold the land because he had
control over it. This evidence
from the defendant does not help
to determine Gli’s interest in
the land. From the above
analysis, Gli’s interest is
imprecise…
It appears to me that by his
attachment to Faname and his
association with the Anyigbe
clan, he was absorbed into the
family and became part and
parcel of them prior to his
escape. By reason of his
connection with the Anyigbe
tribe, he became vested with the
usufruct or the possessory
title. As a possessory title
holder, he was at liberty to
transfer his interest in the
land by sale. The purchaser then
acquired Gli’s interest, that
is, the possessory title and not
the absolute title. The absolute
title continued to be vested in
the Anyigbe clan while the
Gbadawu family became vested
with the possessory title to the
lands.”
The trial High court came
to the above conclusion on the
principle that a purchaser of
land cannot acquire interest
that is greater than that of his
vendor. That is exactly the true
position of the law. If it was
Gli who sold his interest in the
disputed land to respondent’s
ancestress prior to his escape
as the respondent himself
asserted, then the interest
respondent’s family had acquired
in the land was Gli’s
determinable or possessory
rights over the land but not the
allodial title which was still
vested in the appellant’s family
as original settlers.
The appellant, in his
statement of case, argued that a
stranger could not acquire
usufructuary rights over land as
that is the exclusive preserve
of individual clan members or
family members. It was therefore
wrong for the trial court to
have concluded that Gli was a
usufruct holder of the disputed
land. We wish to state that this
statement of the law that a
stranger cannot acquire
usufructuary rights over land
belonging to his host is not
accurate. Usufructuary rights
are not reserved exclusively to
individual members of a group or
family or clan that communally
owns the land in question. A
stranger can acquire
usufructuary rights over land
owned by another group or family
either on terms or through
acquiescence.
The word ‘Usufruct’
comes from the Latin phrase
‘usus et fructus’, which means;
‘use and enjoyment’, with
‘fructus’ used in a figurative
sense to mean fruits enjoyed
from the use, which include; the
right to convey, transfer,
lease, assign or tax during the
pendency of the use of the
property concerned. The term
stands for a limited real right
(or in rem right) found in civil
law and mixed jurisdictions that
unite the two property interests
of ‘usus’ and ‘fructus’; i.e.
the right to use and enjoy a
thing possessed, directly and
without altering it. It connotes
the right of enjoying all the
advantages derivable from the
use of something (not only land)
that belongs to another, as far
as is compatible with the
substance of the thing not being
destroyed or injured. The
Cambridge English Dictionary
describes it as; “the legal
right to use someone else’s
property temporarily and to keep
any profit made”. Black’s
Law Dictionary, in its ninth
edition, defined it as; “the
right of using and enjoying
property belonging to another
provided the substance of the
property remained unimpaired.
More exactly, was the right
granted to a man personally to
use and enjoy, usually for his
life…the property of another
which, when the usufruct ended,
was to revert intact to the
dominus or his heir”. The
Shorter Oxford English
Dictionary; Deluxe Edition,
describes it as; “The right
of enjoying the use of and
income from another’s property
without destroying, damaging, or
diminishing the property”.
In customary law, usufruct means
land is owned in common by the
people, but families and
individuals have the right to
use certain plots or portions of
the land. While people can take
fruits of the land, they may not
sell or abuse it in ways that
stop future use of the land by
the community.
In his ‘PRINCIPLES OF
CUSTOMARY LAND LAW IN GHANA’,
published in London by Sweet and
Maxwell in 1962, the learned and
celebrated legal writer and
jurist Nii Amaa Ollenu, with
reference to Sarbah’s Fanti
Customary Law (1897), stated at
page 64 as follows: “It is
only by grant or rather by
contract that a stranger
acquires any estate or interest
in stool or ancestral land.
Hence the principle that long
undisturbed possession of land
either by a trespasser or by a
person with a limited interest
cannot ripen into title to land
and that is so, even though no
tribute or toll was demanded by
either the owner of the
determinable estate, or of the
absolute title”.
According to Ollenu, a
stranger may, by grant, acquire
all estates or interests which
are capable of being held in
land which are mainly; the
‘user interest’ which is
determinable and the
‘absolute interest’ which is
perpetual. As he rightly stated
in Chapter Five (5) pp. 63-78 of
his book under reference, one
stool or clan or family may
transfer to another stool, clan,
family or a large community of
subjects of another stool, etc.
its absolute estate or interest
in a large area of land. In that
case, it is not only property in
the land which would pass, i.e.
the usufruct or user rights; but
jurisdiction over the land would
also pass, i.e. the allodial or
absolute interest. Generally, an
individual is incapable of
acquiring the absolute estate or
interest, which always goes with
the collective responsibility of
the community or tribe to defend
and protect the land. Transfers
or grants of this nature are
expressly made and a party who
asserts the existence of such a
grant or transfer must establish
positively that; (i) such
a grant was made and (ii)
that it was made by or with the
consent of the owners of the
absolute or naked title.
The next estate or
interest which a stranger may
acquire in land as rightly
stated by the learned author is
a determinable estate, commonly
known as the usufruct. According
to him, the stranger may do so
by identifying himself with
members of the family or clan by
the performance of customary
services just like a member of
the family. In the eyes of the
customarily law, such a
naturalised stranger holds and
enjoys the determinable title in
the land, not as a stranger
anymore, but as a subject and no
limitations or restrains are
attached to his said enjoyment.
Usufructuary rights or interest
could therefore be acquired and
enjoyed by any person at all but
not limited to only members of
the group that owns the land.
The Privy Council, in the
case of TIJANI v SECRETARY TO
THE GOVERNMENT OF SOUTHERN
NIGERIA [1921] 2 AC 399;
held that the owner of the
usufruct title can alienate his
said title without the prior
consent and concurrence of the
absolute owner so long as the
alienation carries with it an
obligation upon the transferee
to recognise the title of the
absolute owner. That
principle of law still holds
good. From the facts on
record, the appellant’s family
did recognise the respondent’s
possessory rights over the land
after the purported sale of same
to respondent’s ancestor by
their licencee Gli. That
accounts for the long
undisturbed possession by the
respondent’s family of this
portion of appellant’s Anyigbe
clan land. As was rightly held
by the trial court; “the
rights and benefits which accrue
to a possessory title holder at
custom cannot be swept away by
the allodial title holder for no
apparent reason…The granting of
leases by the Gbadawu family to
prospective developers is
consistent with their ownership
rights; and it is well within
their power to so act. The
Gbadawu family has exercised its
power of alienation since 1957
when, to the knowledge of the
Anyigbe clan, it granted a lease
of a portion of the disputed
land to the West African
Enterprise Ltd. Interestingly,
according to the plaintiff, the
grant to the West African
Enterprise Ltd was made with the
consent and approval of his
ancestor Lugu Ahiaku III…”
It must be emphasized that
had it not been the attempt by
the present generation of the
respondent’s family to exact
tolls from appellant’s family
members who hitherto were
fishing and farming freely on
portions of the disputed land by
virtue of their allodial
ownership of same, as the
evidence on record clearly
portrays, this suit would not
have seen the light of day. In
his own testimony, the appellant
said he embarked on this
litigation when the respondent
wanted to exact tolls from his
family members who hitherto had
been fishing freely in the
Adutor and other creeks on the
land and also when it came to
his notice that the respondent
had secretly executed a
statutory declaration declaring
the Gbadawu family as absolute
owners of the disputed land.
{Emphasis added}
We agree with the trial
court that the respondent family
has possessory and user rights
over the disputed land subject
to the recognition of
appellant’s allodial ownership
to same. As allodial owners, it
was wrong for the respondent to
attempt in any way, to fetter
the fishing and farming rights
of the appellant’s family
members over the wet and dry
creeks on the disputed land. It
is therefore our candid view
that the Court of Appeal erred
when it set aside the judgment
of the trial High court on the
ground that the appellant’s
family had sold its absolute
interest in the land to
respondent’s family when there
was no evidence to support that
finding. The Court of Appeal
would have been right in its
conclusion if the totality of
the evidence on record had
established that it was the
appellant’s ancestor who indeed
sold the land to the
respondent’s ancestress.
However, this was not the
evidence on record. We
accordingly allow the appeal and
restore the decision of the
trial High Court save the order
that the respondent should
prepare a new Statutory
Declaration to replace the one
that has been set aside.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
S. O. A.
ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
M. N. K. ADZANU FOR THE
DEFENDANT/APPELLANT/RESPONDENT
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