GHANA LAW FINDER [[Seieipguiderohetaw | Fasyrouse | Care and Subject matter index [ey s 3 WEST AFRICAN LAW REPORT November 28, 1958, ‘OBLEE v. ARMAH AND AFFIPONG (High Court, Eastern Judicial Division, Divisional Court nud Evidence-Hearsay-Traitional evidence-Evidence not admissible as being tradiional i direct evidence ‘available. Land-Stoo! land-Native law and custom-Manner in which a slool-subject can take possession of and ‘aequir an interest in stool land- Special postion of outskitla.nd. Land:-Stoo!land.Natve law and custor-Rights of subject over land held by him of his stocl-Whether any restriction in user of land acquired for farming purposes. Land-Possessory tie-Postion of occupant of land compulsorly acquired under Accre Town (Lands) (Ondinance, @ 87 of 1951 In this action for a dectaration of tile, to land, the parties were subjectmembers ofthe same stool ‘The plaintiff claimed, and led evidence to show, that a grant of some land had been made to him by the stool authoriies some forty years before the action, and this evidence was not seriously challenged by the defendants. There was also evidence thal the plaintiff had exercised acts of possession over the land in dispute, by way of farming it and bulding upon it or many years. The defendants sought to set tp grants made in thei favour subsequent in ‘ime tothe grant tothe plant they also allege, in effect, that tis a eustomary incident of a grant of land made ay a stool fo‘ subject thatthe land 0 granted may be used for farming purposes only and that by building an the land in dispute the plainif hac Sullered forfeiture, the land ravering to the slool- grantor “The plainti did not give evidence in person: his principal witness was his son who not only gave evidence from his own cirect knowledge ofthe facis but also attempted fo give hearsay evidence on maiters on which the plaintif could have given direct evidence. ‘The land in dispute, which was Acora outskirt land, was part ofan area which had at one time been compulsonly acquired under the Accra Town (Lands) Ordinance of 1961 and had subsequently been released. The grant tothe plintif had been pririn time to the compulsory acquisition: the grants tothe fefendanis had been mace subsequent fo the compulsory acquistion Bul proto the release. Hold, () the hearsay evidence of the plants son could not be admitted as being tadllonal evidence wile direct evidence of the same facts could have been adduced. EDITORIAL NOTE. The exact scope of the rule that permits the admission of traitional evidence as an exception to the hearsay rule has yet to be defined, Possibly its no wider than the accepted exception ‘which allows evidence af ganeral reputation | (i) A stoo-subject, requiring stool land for his use and occupation, does not, generally speaking, require express permission from his stool to occupy vacant stoo lang, Demarcation oy the stool of an area of land required by a stoal-subject may however be necessary, where other land in the vicinity is Already in occupation, in order that the boundaries of the respective occupies shall be satisfactorily defined (li) The rights exercised by a stoo-subject overland in his eccupation are not Inited by the purpose {or which he nas acquired the land or for which it was demarcated in his favour. Thus where a stool subject occupies or is granted land for farming purposes he isnot thereafter restricted to farming in his Use ofthe land (iv) The general rule that a stool-subject does not require the consent of his stool, when seeking to ‘eccupy vacant stool land, gives way where the land is outskit land of an urban area and Is pe for evelopment. In order to ensure thal such land is properly administered in the interests of all the subjects of the stool a stool-subyect may only take possession of such land upon express grant by thestool. The incidants attaching to land so granted do nol, however, difer from those altaching to land taken into possession where consent of the stool is not requires. (W) A grant by a stool of stool land in the passession of a stool-subject witnout the consent and concurrence of such subjects a null. (i) Athough the land concemed had been compulsory acquired by statutory authority, thereby vesting in the government, whicn had not, atthe ima of commencement af the sult, vested itso of the land, the paint, who was in possession and who had never claimed compensation for the land, was ‘entiied ta maintain his action against all save the governmert Danquah v. Wuta Ofe/ and Bonne (1958) 2 WAL. 185 followed. 406 The Wost African Law Reports Cages referred to (1) Ashorv. Whiock (1865) LR. 1 QB. 1. (2) Sandarv. Parbat (1889) 5 TLR. 83 () Danquah v, Wuta-Ofe and Bonne (1966) 2\VALR. 166 ACTION for a declaration of tle to, damages for trespass to, and an injunction in respect ofan area of stool land claimed to be occupied by the plant as a stoo~ subject. ‘Moore fur the plaintif. Amoo-Lamptoy forthe defendant, Heward-Mils forthe ‘condefendant ‘OLLENNU J. The plaintff claims @ declaration of title, damages for trespass, and an injunction in respect of a plece of land stuate at Korle Gonno, James Town, Accra. By an order ofthe court made on November 23, 1956, upon an application ofthe plait, the codefendant was joined as party tothe su. All ne three partes to the suit are subjocts of the James Town Stool, an its common ground betweon thom that tho land in dspute is @ portion of the James Town Stool lands. Fach of the partes bases Ns or her tile tothe area he or she claims upon a grant from the stool In paragraph 2 of his reply to the defendants statement of defence, the plaintif pleaded thatthe land was granted to him in or about 1939 fo bulging ana dweling purposes" by Ni Okpe, Osaselse and Acting Mantso, and other accredited ellrs ofthe stool, and thatthe Said grantors gave him a certificate on i He pleaded in paragraph 3 of his reply that he gave this certfcate to Ni Kofi Akrashie Il then James Town Manse, wo wrongfully detained t and has refused fo return it to him, ‘The defendant pleaded in paragraphs 2 and 3 of his statement of defence as follows: * (2) These lands (ie, James Town lands) are not sold to subjects ofthe stool but are granted tothe subjects ofthe sto! fo build thereon upon payment of customary drink tothe eccupant of the stool and his elders + (8) Further the subject ofthe stool can make cassava, com or ground-nuts farms thereon without permission from the stol as such, In paragraph 5 of his statement of defence he admited commiting the acts which the plainti allegoa constitute the trespass; whilst in paragraph 6 thereot he admitted thatthe plant was in possession of tho land on the date he (the defendant) placed the sand and stone on the lang; but he pleaded In paragraph 4 that his entty upon the land was in exercise of his right as Owner thereot by reason of a deed of git in respect ofthe land and executed in his favour on October 28, 1954, by Ni Rofl Akrashie Il In paragraph 1 of her statement of defence the co-defendant accepted and agreed withthe averments in paragraphs 2 and 3 of the defendants slatoment of defence set out above. She pleaded in paragraph 2 of het statement of defence that the land she claims was granted to her in accordance with native custom in 11844 by Nii Anuma Raj Il: that the said Mantse thereupon gave her a certificate on the grant. She pleaded in paragraph 3 that Ni Rofl Akrashie Il, successor to Ni Ahuma Rojo I, by a deed of git dated Decemoer 24,1965, confirmed the grant according to custom which Nii Ahuma Rojo If had made to her ‘As wil appear later on, 0ach of the partes, partculaly the plaintiff and the co-defendant, lod evidence fn his or her behalf which in some material respects is ciflerent from the original grant he or she had pleaded. “The plant himself id not appear atthe trial, but evidence was given on his behalf by his son, who said thal his father was old andl and could not altend court Hearing of the ease commenced before van Lare J., as he then was, in 1956, but was rot concluded when the learned judge was raised to the Appeal Court and ceased to exercise onginal jursdictonHearing therefore was commenced de novo before me. On January 24, 1956, when the case was before the aforesaid learmed judge, two documents were admited in evidence by consent. namely, @ plan of the area in dispute, tendered on behalf of the plaintif, and a daed af aft dated October 28, 1954, with ste plan attached thereto, tendered on behalf ofthe defendant From the records ofthe court those documents were taken possession of by one Mr. Sackey then court ‘exhibits clerk, who for certain reasons is no longer inthe service of te courts. ll efforts to trace these ‘exhibits have failed. The court was therefore obliged to admit some oral evidence of the contents of the dofondants documents, even though nething in this case tums upon the contents ofthese documents. As regards the plan, another plan made upon order of the court was admited in evidence. On that plan the respective areas claimed by the parties are distinctly delineated, “The evidence led on behalf ofthe plaintif is thatthe area of land he claims, 200'x 200, was criginally ‘granted tothe plaintif some 45 years ago by the late Ni Rojo Ababio Il then James Town Nantse; thatthe {grant was made to him for bulding and occupaton, and that the said Mantse gave the plaintif a cortiicate ‘evidencing the grant. That soon after the earthquake of 1939 the plaintiff handed this instument to Ni ‘Okpe, Deaselse, then acting Mantse of James Town, that the said Acting Manise and his elders lost the Cerificate, and therefore issued another to the plainif, which document, ine witness said, was ‘subsequently seized by Ni Koll Akrashie I, The witness said thal nis father was placed In possession upon the grant and has been in occupation ever since, and has been farming it; he planleg coconut, palm and mange vees on the lang, some of which trees are sil in existence, ‘The evidence that Ni Kojo Ababio Il and his elders granted land in the area tothe plait over 40 years ‘ago, was admitted by the defencant. The defendant, however, contended in his evidence thatthe grant the 's1o0] made tothe plant was for Tarming purposes only, and that t covered two bulng plots, that Is the ‘orthern haf ofthe land he now claims, and not the whole of that land ‘The case for the defendant is that al the same time that the grant ofthe northem half ofthe land was. made tothe plant te said Ni Kojo Ababio Il granted the southern half to ane Ataa Kwaku, that half being "he porton row claimed by the dafendant together with the plot on which stands tho unfinished bulcing ‘commenced by one Appiah the second wines forthe plaintif. The defendant said that some time round {about 1940 Nii Ahuma Kojo I, then in confinement to be ensiocled, granted to him the portion he the ‘fondant cl~ims. He says further that one Ataa Kwan farmed that portion when Alaa Kwaku became too ‘old to farm ftand thal the said Ataa Kwari ols him that three ofthe old coconut trees standing onthe land fhe now claims were planted by tho sald Alaa Kwak ‘The co-defendant id not ether in her pleading or in her evidence admit thatthe plintif received any grant of land from the stool, o° that he ever occupied any land in the area. Her witness Koll Sackey, who was an old man and an elder ofthe James Town Dsase, said he knows about and takes par in all grants of 'sto0| lands al Karte Gonna to subjects of the stool, and was emphatic that no land al Karle Gonna was ever granted tothe plant by Nil Okpe. At the same time the co-defendant dd not ether in cross-examinaton of plaints witness, or in the evidence led on her behalf cispute the evidence that Nil Kojo Ababio I gtanted land tothe plant. In these circumstances | am bound to accept the postive evidence given both on behalf ofthe paint and by the defendant thatthe James Town Stoal, acting by Ni Kojo Ababio Il and his eles, granted land in te area to the plait about 40 years ago. ‘This prefiminary issue having been resolved, the only others which call for determination upon the evidence are (1) the extent of land which the stool granted tothe plait; and, (2) the nature ofthe intrest which the plain acquited in the land upon that grant. The frst of these is a question of fact, the second is mixed law and fact, Before dealing with those issues | shall state fuly the case forthe co-defendant. It is thatthe portion of, ‘he land which she claims was sold to her some thme ago, during the reign af Nii Ahuma Roo Hl, by a relation of hers, one Prince Rofl Akrashie, to whom Ni Raja Ababio Il and his elders, including the thi ‘wriness for the defence Nii Sackey, had orginally granted the sai land. She said thal Prince Rafi Akrashio ‘9av0 her a dood of conveyance of the land whien lator she took to show to Ni Ahuma Rojo il for the urpose of varying Prince Rof Akrashie's tile, She said that some time ago, al the request of Ni Ahuma Rojo Il, she handed the deed of conveyance fo him fo be used as evidence in a land acquistton mater. [She futher said that some time ago she sent a mason fo do some work on the land but that the plait reventod him. Lator she sent some people to depostt sand oni, but the plait would not lt thom enter. ‘She then reported the mater to Ni Kofi Akrashe Il, the Mantse cf James Town al the time. Nii Akrashie I Sent forthe plaintif and seized from him a document which the plantif produced to the Mantse at the Manise's request; the ground of the seizure alleged by the Manise being that the document was not 2 {genuine one. She said that on December 24. 1955, /., while this sult was pending, the sald Mantse Ni of Axrashi I, gave her a deed of gift ofthe lan. | shall now deal with the two issues raised in tum. The plaintifs witness acmited under crass- examination by leamed counsel fr the co-defendant that he had no personal knowledge of the grant which tha stool made to his father 45 years ago: | cannot therefore accept his evidence ofthat grant as traditional feuidence since his father i alve. The winess sald, however, that in 1839 he saw the writen instrument Wich Ni Rojo Ababio Il gave his father upon the grant. Furthermore, he said that his father has occupied the whole area claimed in the writ for a longtime, that he and his father plantod coconut, palm, ane mango trees aver tne whole ofthat area, and thal some of those toes are stil in existance on the land, As already Indicated, the defendant admitted in paragraph 6 of his statement of defence that. atthe tie the land he ‘row claims was granted to him by Ni Aruma Rojo ll the plain was in occupation ofthat portion and was farming i “The plan ofthe land shows seven coconut trees and one palm tree on the area the defendant claims, land which is hatched purple. | saw those trees myself when the court inspected the land. Six af the caco- rut tees and the palm tee are quite old, about thirty-five years old as estimated by the surveyor. The Gefendant says he was told By one Alaa Kwari that trae of the old coconut trees on that portion ofthe land were planted by one Ataa Rwaku. He gave no account as to who planted the remaining three ld coconut ees, the old palm tree and the yourgar coconut tee.‘Again, when | inspected the land I saw hedges planted along the whole length ofthe eastern, northern ‘and westem boundaries of the land claimed by the plain, which are edge pink on the plan. The ‘evidence which the plii's witness gave subsequently that those hedges wore planted by him and his father was not disputed. The only point made about those hedges by the defence was the suggestion, made in cross-examination by learned counsel for the co-delendant, that the plaintiff and nis son planted those hedges. somo time botweon the years 1839 and 1957, during which period the ‘government had acquiras he area, There isthe futher evidence given by the wines Appiah thal when he went upon the land some time in 1959 and started building operations thoreon the plain straightway warned him thatthe land was his. This evidenee and the admission on the pleacings fully corroborate the evidence lad on behalf of the plant that ne has been for along time in possession of ‘he whole area ne now claims and nas been exercising acts of avmersnia over I On the othor hand no admissible evidence was lad by the defendant fo refute the evidence led for the plain on this issue, The evidence in chet of the co-defendant shows that the only two attempts she made fo exercise acis of ownership over his land were resistod by the plan. He slopped her mason from doing ‘any work on the land, and would not let her labourers deposit ner sand on he land. These acts of the Blain are assertons of his tile to and possession of the area claimed by the co-defendant, whch is ‘shown edged yellow on the plan. There are as many as ten coconut trees, one palm tree and one mango {tee on that portion ofthe land, each of hem quite ald. The only evidence led as to how those trees came into existence is the evidence led on behalf of he plant that they were planted by him and his son With dus respect tothe blind old lady, the fourth defence witness, | must say that | cannot place any reliance upon her evidence that the area claimed by the co-defendant was granted to her cousin, ane Kof /Akrashio, and that the said Kofi Akrashie farmed it untl ne sold it to the co-defendant, The reasons for ‘ejecting her evidence are many, | shall only stato a fow of tem. She alleged that her husband, te thre defence witness, was one ofthe elders ofthe stool who went and demarcated the land to the said Kofi /Akrashio, and that hr knowledge as to eccupaton of the land by Rofl Akrashia was acauited by sesing Kof ‘Axtashie farming on when she and her said husband together passed near the land to and from thei own farm. In hose circumstances the best person to know that land had been granted ta Kofi Akrashie, and tne ‘area of that land granted to Kofi Akrashie, isthe husband, IIs signifeant that not a word was breatned By him in his evidence about a grant of this land to Koi Akrashie. Again while the evidence shows that the plain has been occupying land in the area for a long time, she, the bind lady who professes to know the area quite well, says she has never heard of the plant ‘occupying land anywhere near the alleged Koll Akrashie's land. Fray, whist te co-defendant says thal ‘the said Kofi Akrashie was her relative, and that it was afer he had sold theland to her, under @ dood of ‘conveyance, hal she went and showed the deed to Ni Aruma Kojo Il the witness says that the sad Kofi ‘Aizashie was notin any way related to the co-defendant, and thatthe sale and conveyance of the land by him tothe co-defendant were transacted in the presence of Ni Ahuma Kojo Il al the Manisa Wo. It seams. to me that this witness must be taking about quite a different piece of land and not the one in cispute between tha plain andthe co-defendant. ‘The nest important witness Is Appiah, who has an unfinished bulding on a portion ofthe land. According to his evidence the plain reised objection as soan as he entered upon that portion of the landwhien he ‘said happoned in 1953. There is no ovidence of his previous entry upon that land. That abjocion means ‘thatthe plant was asserting his ttle to that porion ofthe land. Wren he was recalled afer the courts inspection of the land he saié thatthe two coconut trees and the manga lree onthe land ware planted by him, This witness produced a cerifeate upon which he ralies for his die tothe land, This eocament has. certain features which are too glanng to escape observation. Fist, it contains no description of the boundaries of the lana in respect of which It was Issued, Secondly, the person whose name and mark ‘appears on tas frst elder ofthe stool to wilness it is Kof Sackey. He was a witness forthe defenca but ‘even i his evidence-in-chet he said he only heard that a grant of lane had been made to Appiah; that he ‘dd not know anything about that grant; and that he did not Know about any paper given to Appiah on the ‘grant, Lastly. the figures on the certifcate showing the dimensions ofthe land appear to have been altered fom 60'x 60 to 100" 80). The atoraion is very abvious. | gave the winess an opportunity to explain now the alterations came about. To my surprise he said there are no alterations on the document | formed the pinion that he found himself in cificlies upon realising thatthe court had noticed th alteration, and as ne could not offer satisfactory explanation he decided to deny that whichis obvious, | am not satisfied that Appiah’ certificate relates tothe land on which he commenced his builsng, and I ‘am not satisfied either that land measuring 100’ x 80" was over granted Io Appiah by Nii Okpe. On the other hand |am satisfied thatthe frst ime that Appiah went to that portion ofthe land was in 1953, and that when he aid so enter the paint did not keep quiet-he registered his protest. Appiah says that the plant offered to accept some drink in order that he, Appiah, might proceed with his building but he rejected that offer, that ishis own afar. (On the whole | am satisfied tat the area of land granted by Ni Kojo Ababio Il to the plaints the whole ‘of the area he now claims, ie, the area edged pink onthe plan; thatthe plait was placed in possession ‘ofthe whole ofthat area; and that he has remained in possession of ever sce. ‘And now what intrest did the plaintiff got in the land upon its grant to hi? The defendant admitted that when the land was granted to the plain it was demarcated to him by the elders of the stool, That ‘admission implies a great deal By custom, subjects of a stool are not rationed in the amount of land they can occupy and farm, The ‘only iting factors on the extent of stool land a subject can acquire by farming are his own capac to farm and the extent of land which other subjects have appropriated fo thelr use by tt abou, [Again by custom a subject who requires land for farming need not obtain express permission of the stl to occupy vacant stool land. That fact is admitted by both the defendant and ‘co-defendant in ther pleadings. Bu ito avoid a clash with other subjects already occupying lard in the area it should become hecessary for th stool to make an express grant of sto! land to a subject for farming, al that the elders ‘Would dois to take this subject fo the land and show him tie boundary from which ang the direction in ‘which he can farm, Itis diferent in tho caso of lands adjoining the town which ato ready for devolopmont forthe extension ‘ofthe town; the suburban area which in Caristiansborg and cher Ga towns are called autskrt ands. Inthe ‘ease of such lands express permission of the stool is always required, and limts are set to the extent ofland which one subject may occupy, in ordar ta maintain proper administration of the land, and ensure that ‘each subject wn requires land to buld gets his fair share. It's in the case of such grants thatthe area (granted to the subject is demarcaled. Demarcation therefore fs evidence that a grant is not solely for farming but for occupation and building purposes. ‘The evidence thatthe plaintif has bult on @ portion of the land and has been farming on the other potions is also evidence that the grant was forthe purpose of occupation and bulding, and nat solely for farming Even i the grant was only for farming, the subject who so farms the lands becomes the owner of the usufruct in the land, That interes in the land carres with It the right to bull and occupy. The stol is not entitled to dispose of or deal with that land or any interest in such land in the subject's possession without ‘he coneent and concurrence ofthe subject usuftuctuary owner, “Therefore whether the grant of the land to him was express or implied, the plantif, by occupying and farming the and, became the owner of it according to custom, and every grant which the stool purports to make of any portions of it to the defendant or to the codetendant or to anyone else, without te rior Consent and concurrence of the plain, who holds the usutructuay ie inti mull an void One point more. There is some evidence that after the earthquake in 1839 the Government acguired the land in cispute for purposes of rehousing, andi id not divest itself of te land untl last year, 1957. It was suggested to the plaints witness by leamed counsel for the co-defendant that, by reason of that fact, te plaintiff ad no tile inthe land in respect of which h~ could sue, That suggestion, of course, is a question of law, upon which | had hoped thal learnad counsel would address the court. But nether Counsel forthe defendant nor forthe co-defendant thought ft so to address the court. However, it being a Point of law and it having been refered fain the proceedings, i is the duty of the court lo address Is Attention to, Having done so Ifind two complete answers to t First, the plains, having been proved to be in possession, has a tile good against the whole work! ‘except the tne owner, Le, the government, See Ashor v. Whilock (1), and Sandarv, Parbat (2 Secondly the acquisiton operated to divest of his interest any person, apart from the stoal, who held any intrest in the stool land atthe date ofthe acquistion. Therefore upon the government subsequent vesting itself ofthe tle It got by the acquistion, any person wht an interest in the land a he date ofthe ‘acquisition, who had not claimed and obtained compensation, was restored fo nis stalus as i existed at the date of the acquisition, whist all dealings withthe land by the stool during the period that the land remained acquired would be null and void “Therefore the alloged grants made by the stool between the date of the acquision (1938) and the ate of dvesiment (1857) /., the grants, to the defendant, the co-detendant and Appiah, wore null and void, whilst upon the divestment, the plainti, wo had an inlrest in the land at the date of the acquisiton and who had not claimed and obtained ‘compensation, was restored to his former status, and he can properly maintain this action even though he Inetiuted the sult prior to the date of the avastment, On this legal point. this case is on a furs with the ase of Danquah v. Wat Ofei and Bonne (3). “The plaintiff has succeeded in proving his case satisfactorily and is entitled to judgment on his claim. There willbe judgment forthe plait against the defenéant and the co-defendant fora Gectaration of his tile to the lan, Judgment fr the plaintit 8.6.0. Leal Library Services coat peter