Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 25TH MARCH, 1959.
Before: OLLENNU J.
CASES REFERRED TO
(1) Anane v. Mensah (p. 50 of this volume);
(2) Baidoo v. Osei & anor. (unreported);
(3) Ohimen v. Adjei & anor. (2 W.A.L.R 275);
(4) Thompson v. Mensah (unreported);
(5) Wutor v. Gyebi (unreported);
(6) Ashiemoa v. Bani & anor. (p. 130 of this volume);
COUNSEL
Ampah-Sarpong (for the appellant).
Koranteng-Addow (for the respondent).
JUDGMENT OF OLLENNU J.
(His lordship stated the facts, and proceeded):-
The Court of Appeal has laid down the principle which should guide the Supreme Court as to the proper method of ascertaining the native custom applicable to a particular case. In Anane v. Mensah (p. 50 of this volume) their Lordships said:
“Native customary law is peculiarly within the knowledge of the Native Courts, and the opinion of a superior Native Court on native custom must be preferred to the opinion of an inferior Native Court, unless it is either contrary to a decision of the Supreme Court or of the Privy Council on the point, or ‘is repugnant to natural justice, equity and good conscience’.”
Applying this principle, I proceed to examine the native custom which the Kwahu Local Court ‘A’ accepted and applied in determining this case, in order that I may decide whether it is a custom which the Supreme Court should countenance.
The evidence led by the State Secretary that a subject is at all times compellable to render customary services to the Stool is very significant in this matter. One of the incidents of the occupation of Stool land is the liability of the occupier to perform customary services to the Stool. Where the person in occupation of the Stool land happens to be a stranger, it is often improper or undesirable that he should be called upon to render the customary services. In such circumstances, therefore, performance of those services is commuted into a contractual tenancy agreement or licence for a composite sum, which might be termed the purchase-price for the land.
In Land Appeal No. 21/1957 (entitled Baidoo v. Osei & anor.) I stated and explained this in the judgment delivered by me on the 18th December, 1957, in the following words:
“By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the Stool, so
[p.149] of [1959] GLR 147 H.C
long as the alienation carries with it an obligation upon the transferee to recognise the title of the Stool, and to perform the customary services due to the Stool from the subject-occupier. Where the transferee is a stranger, i.e., a non-subject of the Stool, it is usual for the Stool to commute the customary services which so devolve upon the transferee to a tenancy agreement of one form or another, since by native custom it may sometimes be undesirable, indeed sacrilegious, to admit the stranger-transferee to the performance of customary services for the Stool. Thus, in an Akan State, it would be undesirable that a stranger of a tribe whose custom is circumcision should perform rites connected with the Stool. Equally, in a Ga-Adangbe or Ewe State, it would be undesirable that a stranger of a tribe whose custom is non-circumcision should perform customary rites for the Stool. In either case it would mean desecration of the Stool.”
If the stranger who by contract pays rent, tolls, tribute, or purchase-price in lieu of the customary
services is entitled at all times to retain his possession of the Stool land provided he has paid the purchase-price or continues to pay rent, tolls or tribute, it is revolting to say that the subject, who is compellable at all times to render customary services to the Stool, can be deprived (while he is still willing to serve the Stool loyally) of the whole of his right, title and interest in the Stool land over which he has acquired a usufructuary title. Such a custom, in my opinion, “is repugnant to natural justice, equity and good conscience,” and should not be enforced by the Supreme Court.
But apart altogether from the fact that the custom which the Native Court applied in this case “is repugnant to natural justice, equity and good conscience,” it is contrary to decisions of this Court, and of the Court of Appeal. These Courts have held that the Stool cannot, without reference to the subject who owns the usufruct in a portion of the Stool land, alienate or otherwise deal with such Stool land. And they have held that in consequence, a subject can successfully maintain an action against the Stool for the declaration of his usufructuary title, or for trespass to his portion of the Stool land, and for recovery of possession of such land from any person to whom the Stool so wrongly grants or alienates it (Ohimen v. Adjei & anor. (2 W.A.L.R. 275); Thompson v Mensah (Court of Appeal, Civil Appeal No. 54/57, delivered on the 28th November, 1957); Baidoo v. Osei & anor. (Land Court, L.A. No. 21/1957, delivered on 10th December, 1957); Wutor v. Gyebi (Land Court, 9th March, 1959); Ashiemoa v. Bani & anor.
[p.130 of this volume] of [1959] GLR 147 H.C
With the exception of the case of Thompson v. Mensah, all the cases cited, particularly Ashiemoa v. Bani, are exactly on all fours with the present case.)
The native custom applied by the Kwahu Local Court ‘A’ having been shown to be “repugnant to natural justice, equity and good conscience,” and also contrary to judgments of the Supreme Court, it cannot be entertained by this Court, and the judgment (which is based solely upon that alleged custom) must be set aside.
Other points of law which were raised by learned Counsel for the respondent (for example, the necessity to have land for the development of a town) having been fully dealt with in the case of Ohimen v. Adjei , need not be further considered in this judgment.
The appeal is therefore allowed. The judgment of the Native Court is set aside, including their order as to costs. Any costs paid are to be refunded. For the judgment of the Native Court I substitute the following: “There will be judgment for the plaintiff against the defendant for declaration of his title to the land, and an order for recovery of possession thereof.” The appellant will have his costs in this Court, fixed at £18 15s Od., including 10 guineas Counsel’s costs, and his costs in the Native Court (to be taxed).
DECISION
Native Court to carry out.
