HIGH COURT, ACCRA
DATE: 30 MARCH 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Ohimen v. Adjei (1957) 2 W.A.L.R. 275
(2) Baidoo v. Osei (1957) 3 W.A.L.R. 289
(3) Mensah v. Amagyei [1961] G.L.R. 384
(4) Kwan v. Nyieni [1959] G.L.R. 67, C.A.
NATURE OF PROCEEDINGS
CONSOLIDATED suits (No. 145/1960 and No. 8/1961) wherein the plaintiff claimed against the defendants an order for recovery of possession of a piece of land, an injunction and damages for trespass.
COUNSEL
H.P. Swaniker for the plaintiffs in each of the suits.
E.K. Narter-Olaga for the defendants in each of the suits.
JUDGMENT OF OLLENNU, J.
[His lordship summarised the point at issue as set out in the headnote and continued:] The plaintiff led evidence that in the olden days, the lands round Ningo were infested with dangerous wild beasts, and any Asafoatse or hunter who was able to kill the wild beasts or animals over an area of land settled thereon and became owner of the area he so occupied; that in that way the different quarters or tribes of Ningo acquired the lands in Ningo and became absolute owners thereof, and so there are no stool lands in Ningo, all the lands are vested in the quarters or tribes absolutely. The plaintiff said that the land in dispute was acquired by his ancestor, one Asafoatse Blebo, and it therefore belongs exclusively to his family, and no subject of the Ningo state who is not a member of his family could settle on or occupy portion of the land without their prior consent or permission. Other witnesses supported the evidence given by the plaintiff in that regard. It was submitted on behalf of the plaintiff that the evidence established that there are no stool lands in Ningo, and for that matter there are no stool lands in any Adangbe state. In support of that submission counsel [p.202] of [1962] 1 GLR 200 referred the court to pages 29-31 of the Report On Land Tenure In Customary Law of the Non-Akan Areas of the Gold Coast Colony, Part I, Adangbe, by R.J.H. Pogucki, then Assistant Commissioner of Lands. There the learned Commissioner said, inter alia: “Although stools may be in existence among the Adangbe, there is no evidence to show that there are any direct links between a stool and land, nor is the existence of stool land claimed. But in one or two cases, on the border of the Ga Federation the term ‘Stool-Land’ is used though examination shows that it is a colloquial expression. There is no notion of a personification of a stool for purposes of land owning, as sometimes interpreted by the courts as regards Akan areas. There may be cases, admittedly only isolated, of rights in land of a usufructuary nature having been granted by kinship groups of pre-Adangbe origin to immigrant strangers selected as war-leaders and their families. This was a logical step at a time when pecuniary remuneration was largely unknown, although the need to provide for maintenance of the war-leader and of his family was recognized. On no occasion did allodial rights pass in those circumstances. But such rights as have passed are not regarded as linked with the stool itself, but as belonging to the kinship group founded by the original war-leader. There was no question of such grants when the war-leader was chosen from among a group which already owned land. There are however cases when the political chief, i.e. the previous war-leader, is regarded as an agent in the matter
of making grants of unallocated land, acting for jointly land-owning kinship groups. This may be understood if it is noted that such new grants almost invariably concern only strangers and, that the political chief is regarded as the official representative of the group in external dealings. It is in those cases that sometimes the term ‘stool’ is colloquially used to denote who acts for the joint owners. But even in such cases examination shows that consent to any dealing must be obtained by the chief from those of the elders who are heads of kinship groups which own the land, and that he cannot act in any independent capacity. The proceeds of any such dealings are distributed among the true owners, although there may be instances where the chief obtains a consideration in the form of a special share, or where the land owners may decide to devote the income from certain land to the maintenance of his office or of the political organization (colloquially termed State-land).”
Not being too certain of what the learned gentleman said the sources of his information were, it is only fair to him that I should quote his opinion without observation particularly as this is a judgment and not a commentary. It appears to me, however, that the learned Commissioner was very much influenced by the fact that parts of the Shai, Yilo and Manya-Krobo lands were originally purchased by individual subjects of those states from the Akwapims—the Larteh and Adukrom—and possibly he was also influenced by the Huzu system which he later discussed in the same report. Counsel also referred to finding of John Jackson, Esquire, Stool Lands Boundary Settlement Commissioner, published in Gazette Extra-ordinary No. 52 of August 3, 1956, page 1041, where the learned Commissioner also said, inter alia: “It is accepted that an Adangbe Stool possesses, as a general rule, no proprietary interest in its lands. But it does possess, in varying degrees a jurisdictional interest in them, i.e., an inherent right to their management and control, subject always to that limitation, now imposed upon them, to the extent specified in Part VII of the Local Government Ordinance (Cap. 64).” It should be pointed out that John Jackson, Esquire, in the same report at page 1048 of the Gazette, made a statement which is a qualification of what he said earlier. There he said: “It is all a question of form or even verbiage, rather than substance, and it appears to me to be academic and unreal to try to dissect and tear away the flesh, in order to examine microscopically the bone structure. In law one must bring one’s facts within the ambit of broad and guiding principles, and be able to discuss the substance rather than the form, without which there can be no orderly social progress. [p.203] of [1962] 1 GLR 200
For these reasons I find that in principle, in the management and control of lands and the owning of lands there is little or no distinction between the rules governing Akan property or those governing Adangbe, other than as to the degree of control that may be exercised, which in practice in all communities is regulated by the will of the Councillors and Elders, who are guided by the opinion of the `young men’ (i.e. all those irrespective of age who possess no title). Thus the jurisdictional interest vested in an Adangbe Stool is that power of management and control of lands, particularly of unallocated or vacant lands, which is vested for the time being in the occupant of
the Stool or symbol analogous to the Stool, whilst the proprietary interests vested in such a Stool can be only those in which the occupant of the Stool has an interest for the duration of his office, to the exclusion of all others.”
Now what in customary law is meant by “stool land”? By stool land we mean, land owned by a community, the head of which occupies a stool, such that in the olden days of tribal wars the said head of the community carried the ultimate responsibility of mobilising the community to fight to save it, and in modern days to raise money from the subjects to litigate the community’s title to the land. We may put it in another form, any land in respect of which an occupant of a stool is the proper person to conduct its extra-territorial affairs is stool land. The occupant of the stool may not be the appropriate internal administrative authority, e.g., the stool may not be the appropriate authority to make direct grants of portions of the land to subjects, that right may be vested in a subordinate authority, e.g., a sub-stool, a quarter, a village council or in a family; but so long as the extra-territorial relations, e.g., settlement of the boundaries of any particular land with land occupied by adjoining states or communities vests in the occupant of the stool, i.e. in the community generally and not in section of it, that land is stool land. Land of that description may be acquired by one of four methods: (1) by a war-leader and his followers over-running the land, settling upon it, and apportioning it expressly or impliedly among the various groups of his followers, (2) by discovery of unoccupied land by hunters or pioneers of a stool and settlement thereon by the stool and its subjects, (3) by a gift made of it to the stool by another stool or authority with perpetual succession, and (4) by purchase of it by the stool for and on behalf of the community generally.
In the case of gift and purchase, the boundaries of such land given are clearly demarcated by the donor or vendor. But in the case of conquest, and settlement, the territorial limits of the stool land are determined by the extent of land occupied by its subjects, and groups of subjects, e.g., families, quarters, tribes, or sub-divisions under the stool: Ohimen v. Adjei.1(1)1 We will not apply that test to the evidence in this case and see what the result would be. First as to how the Ningo state came into being, the plaintiff himself said in answer to the court: “The Ningo state was founded by one Dzanma. My father told me that the said Dzanma alone founded the state before all others came and joined him. The Adaanya lower quarter descended from the said Dzanma. Some of the present tribes or quarters sprang from the said Dzanma, other tribes or quarters came and met him and his people.”
It must be stated here in passing that the Adaanya lower quarter and the Kpono lower quarter are the ruling quarters in Ningo. [p.204] of [1962] 1 GLR 200
“Q. If Dzanma and his own people were the founders of the Ningo state to whom would the Ningo lands belong originally?”
After much prevarication the plaintiff replied:
“A. The one who first came and settled on the land would own the land up to the boundary with a person from another place who settles on the land next to his.
“Q. What are the states settling on lands adjoining Ningo and forming boundary with the Ningo states?
“A. By the sea on the south, Osudoku on the north, Ada on the east and Shai on the north-west, and Prampram on the west.
Whatever area the leader or asafoatse of one quarter hunted up to and met another hunter or asafoatse of another quarter became the quarter land of the one quarter, and the place of meeting became the boundary between the two quarters. When there is an attack from the east, the Kabiawe tribe whose quarter lands are on the east would be the first to start fighting the invaders from the east. But they would have to summon all the other quarters of
the town to fight the invaders. The quarter from whose section the land is invaded would by custom report to the Mantse of Ningo, and it is the duty of the Mantse to summon all the other quarters to go and fight the invaders, and then all Ningo subjects are bound to fight. The line which serves as a boundary between the land of Kabiawe and Ada on the east is the boundary between the Ningo state and the Ada state. So too the boundary between each quarter and a neighbouring state is the boundary between Ningo and that other neighbouring state.”
Next is the evidence given by P.W.4, asafoatse and head of the Anianuse quarter to which the plaintiff’s family belong. In answer to the court he said: “The correct custom is that each quarter or sub-stool has a portion of land which it controls and administers and such land is called land of the quarter or land of the sub-stool. But all those lands together are by custom Ningo state lands. The boundary between lands of a Ningo quarter and lands of a Prampram quarter is automatically the boundary between the Ningo state as a whole and the Prampram state as a whole. Although the quarter is in physical control of the land the right of the Mantse of Ningo over the whole
lands in Ningo is preserved. In the olden days if enemy attacked any Ningo land, the asafoatse or head of the quarter in charge of that land would report to the Mantse, the Mantse would then summon the asafoatsemei of all the quarters and send them to fight the enemy. After the enemy had been driven away, the quarter which was in possession originally would continue their possession, the others would go back to their respective areas:”
At that stage the witness volunteered the following piece of evidence:
“I must explain that the Mantse is an Akatamanso – a state umbrella – covering all the lands, by custom you cannot exclude him from any portion of Ningo land. As the Mantse is our father or head, who used to send us to fight an enemy, by custom all the tribes had to come and make report to him when they had completed a job of work, e.g. successfully fought and driven an enemy away, any special thing which happens on the land.”
P.W.8, an asafoatse of the Adaanya family also gave similar evidence. Then evidence was led on behalf of the plaintiff in respect of the village of Wekumagbe situate between Ada on the east and Ningo on the west, and occupied by Ningos and Adas together, and of a dispute which arose between those two communities in the village leading to a settlement of the boundary between them. P.W.11, of the Kabiawe tribe or quarter, whose people admittedly predominate in the Wekumagbe area said in his evidence-in-chief: “Yes the Adas are litigating with us over the Wekumagbe lands, they claim ownership of it. We reported to the Ningo Mantse. He said he does not enjoy anything from Kabiawe tribe so we should deal with it ourselves. So we are carrying on the litigation ourselves.” [p.205] of [1962] 1 GLR 200
In cross-examination he said: “Yes when a dispute arose between the Adas and us about Wekumagbe we reported to the Ningo Mantse. We did so because he is the Mantse of the Whole Ningo.
“Q. Is it because he has control over all the lands?
“A. He has control over all of us.
“Yes I remember that there was boundary settlement at Kosikpo when the Commissioner for Stool Lands Settlement came.
“It is correct that after the settlement of the boundary we the Kabiawe people went with the Mantse to the boundary and he poured libation.”
And in answer to the court the witness said:
“At the time we reported the dispute over the Wekumagbe land to the Ningo Mantse we had not heard that the Ada Mantse was coming to support his people to litigate with us over that land, but should the Ada Mantse support his people against us, then the proper person who should by custom represent us in the litigation is the Ningo Mantse.”
One other important fact must be referred to: the land in dispute is shown as abutting the Dzange lagoon. That lagoon is said to be a fetish. By custom the owner of the land must be the owner of the lagoon or stream on or abutting the land, and must be the person responsible for the performance of the customary rites appertaining to that lagoon or stream. In view of that customary law, it was suggested in cross-examination to the first co-defendant in the second suit that because the customary rites to smaller streams – Nugbe and others – are performed by fetish priests of one quarter or the other, each such stream or lagoon and the land abutting it belonged to the quarter of the officiating fetish priest. The suggestion of course, was denied by the witness who explained that the fetish priests in question are subordinate to the Mantse who is the chief fetish priest in the Ningo state and the fetishes of the said stream for which they perform the custom are minor fetishes, and further that the said subordinate fetish priests perform the rites upon delegation by the chief fetish priest the Ningo Mantse. As far as the position of the Ningo Mantse as chief fetish priest is concerned, there is no dispute: in fact the first evidence on record of that was led by the plaintiff and some of his witnesses.
And again there is no dispute that the Dzange lagoon is the principal fetish of Ningo, and it is admitted by all that the Ningo Mantse is the sole authority who performs the customary rites of the Dzange lagoon on behalf of the whole Ningo state. By custom these rites which the Ningo Mantse performs are for the fertility of all lands and the prosperity of all the people in the Ningo state.
Appreciating the force of the evidence they gave as to the relationship which by custom exists between the Ningo Mantse and Ningo lands, the plaintiff and some of his witnesses said that it is a relationship which imposed a duty and liability upon the Mantse to protect the land, but that the responsibility carried no right of beneficial interest in the land. That evidence is fantastic, it is not custom; customary law does that which is reasonable, and this alleged custom is certainly so unreasonable, so contrary to natural justice and good conscience that if it is custom, this court will not countenance it.
P.W.4, finding himself by reason of the evidence he volunteered that the Mantse is Akatamanso who can never be excluded from the land, unable to deny that the Mantse by custom has beneficial interest in [p.206] of [1962] 1 GLR 200 the land, took refuge under a stipend now being paid to the Mantse. He said; “He is now being paid by the State Council, that is his interest in the land.” He went on further –
“I do not know what the custom was in the olden days, but as we did not see the old men give the lands to the Mantse I cannot say what the interest of the Mantse in the land is.”
Now portion of the Accra-Ada motor road runs through Ningo land including the land in dispute. P.W.4 alleged that that area of the road was acquired from his family and that they were paid an amount of £G2 for it, he produced exhibit P a letter from the Lands Department to support his allegation. But quite contrary to his evidence, exhibit P is in respect of a site for a Public Works Depot at mile 41 on the Accra-Ada road. Against that, the uncontradicted evidence provided by a deed of covenant, exhibit 3 is that when the government – a non-Ningo subject – was to acquire portion of Ningo land, the authority who made the grant was the Ningo Mantse. Similarly there is the uncontradicted evidence that it was the Ningo Mantse who gave permission to the military authorities,
non-Ningo subjects, to establish a target range on a portion of the land in dispute, and it was also the same Ningo Mantse who granted permission to the military to camp on another portion of the land. No one ever disputed the right of the Mantse to make those grants.
A certified copy of a letter dated the 17th October, 1917, written by Tei Dzanma, Ningo Mantse, addressed to the then Secretary for Native Affairs, was produced from the National Archives: it had attached to it a note headed “Laws I made for the benefit of the town of Ningo for approval.” Paragraph 3 of that note reads – “All lands on the back or round the town must be given out to the headchief by the owners (whether for sale or lend) for the purpose of encouraging people to have more houses erected, and to give good improvement and to bring the town to proper light and civilization.”
It was submitted on behalf of the plaintiff that that statement is an admission by the stool that the Ningo lands do not belong to the stool. That submission shows misconception of the customary law with respect to the rights of a subject in stool land. By customary law, vacant land immediately adjoining the building of a subject, is deemed to form part of land on which the building of the subject stands, unless they can be shown to be in the actual occupation of some other persons. By custom a stool has no right to deprive the subject or his quarter or family of such land except with consent of the subject, the quarter or family: Baidoo v. Osei.2(2) Again by customary law a chief and his council are not entitled to pass a resolution or make bye-laws to deprive the subject of land or property he hasacquired in stool land, such declaration or bye-law can only be made with the consent of the subject entitled to the property: Mensah v. Amagyei3(3).
Of course, the Ningo Mantse, being a repository of the customary law, must know that lands at the back of and round about the town, if they are stool lands, must be deemed to be in the occupation of subjects of the stool, individuals, families, or quarters, for the enjoyment of the immediate beneficial interest therein and he cannot deprive them of their rights in those lands; evidently he thought that the government could assist him to do what he could not forcibly do by customary law, in order to bring all lands round about the town ready for development under [p.207] of [1962] 1 GLR 200 a central control to encourage general development of the town instead of the old system of development by quarters. In fact the evidence in this case shows that the ideal aimed at by Mantse Tei Dzanma in 1917, was subsequently achieved with the necessary consents and that development in Ningo town now proceeds generally, not according to quarters, and not under the control of any particular quarter.
In my opinion that note of 1917 exhibit G2 is not an admission against the interest of the stool, on the contrary there is exhibit 2, charges which the people of Ningo prepared against the present Ningo Mantse Nene Tei Aguda III, the second co-defendant in the second suit, for his deposition. Among the signatories to that document is “Blerbo Oketatsi Diakoserm” the asafoatse of the plaintiff’s family.
The first of the eight charges framed against the Mantse is- “That he as Manche (Paramount Chief of Great Ningo and Priest (Wono)), of the State Deity Djangey (Fetish), occupant of the Great Ningo State Stool and a Trustee of Ningo Stool lands therefore charged with the Dual Office and duties of a paramount chief’s administration (Manche), and Priest of Fetish Djangey did agree and signed a certain Document with the State of Prampram transferring part or portion of the Ningo Stool land to the Stool of Prampram and by virtue of the said Document, part of portion of Ningo Stool land has been released or added to that of the stool land of Prampram without the
knowledge and consent of the Elders and people of Great Ningo contrary to the oath of fidelity sworn to the State at the time of his installation, that he will never do anything involving the State without the knowledge and consent of the Elders and people of the State.”
That document is an unqualified admission that the lands at Ningo are Ningo stool lands. Thus the evidence of custom, of accomplished facts, and of the conduct of the plaintiff’s family as supported by documentary evidence show conclusively that the Ningo lands possess all the essential elements of stool land as understood in customary law, and that the land now in dispute is definitely part of Ningo stool land.
The evidence further makes it quite clear that like any other stool land in Ghana, individuals, families and quarters occupy portions of the Ningo stool land, and are the owners of the usufructuary – sometimes called determinable title – in the lands they so occupy.
It is an incident of stool land that any subject of the stool has an inherent right to occupy portion of the stool land not already occupied by another subject or grantee of the stool, and use such land for building or for farming. In the case of agricultural land he may occupy any vacant land, i.e. land not in the possession of any one. His said occupation is presumed to be by implied grant; but in the case of building land the subject acquires his title to it by actual grant, and the portion he could occupy is demarcated for him.
Any area predominantly occupied by members of a family is regarded as land of that family under the stool, and any area predominantly occupied by members of one quarter is regarded as property of that quarter under the stool. Since it is by occupation that the individual acquires possessory title to a piece of land for himself, his family, and his quarter, it is customary that when a person from one family goes to occupy land in another area he should introduce himself to the family or quarter who owns the possessory title to that land, this is particularly so in the case of a person whose family or quarter occupy the land adjoining the one on which he wants to settle, because if he just occupied it without reference [p.208] of [1962] 1 GLR 200 to the family or quarter in possession, his own family or quarter would in time rely upon his occupation to extend their boundary. But since by customary law each subject of the stool is liable to be called upon, by the stool, to help save or preserve any portion of the land, a subject of the stool who goes to get land in the area of another family or quarter merely introduces himself to the head of the family or quarter in the village. He hereafter has an inherent right to farm, build a dwelling-house, build a cattle kraal, or use it for any lawful purpose without let or hindrance; he is not liable to pay tolls or tribute of any kind. He gives a very nominal customary drink to introduce himself to the
appropriate authority.
The plaintiff alleged a custom in Ningo that where a Ningo man builds a kraal on land in an area predominantly occupied by Ningo subjects of another family or quarter he is liable to give the previous settlers a live cow. But neither he nor any of the so many members of his family who gave evidence was able to show any single instance in the history of his family prior to this case of a cow given to them by any one for building a kraal on any land predominantly occupied by them. His elder brother P.W.1, said that a man by the name Tawiah from Labadi has a kraal which he built one and a half years ago with the permission of their family upon an agreement that he would later give the family a cow. A few observations must be made about that evidence: firstly, since the man Tawiah has not been called to substantiate the allegation, the presumption is that the allegation is not true.
Secondly the said Tawiah is not a Ningo man. Thirdly an isolated recent practice is not custom. P.W.4 the asafoatse of the Aniamuse family, also gave evidence that he took a cow from a number of people for building kraals on his land, those people he said are: one Tetteh Narh, One Akwetey and his brother Akuerter, Ametefe Tettey Narh, a Mr. Koney from Labadi, and one Odartey also from Labadi.
He did not say how long it was that he took the cows from those people; moreover, if his evidence is true it would have been the easiest thing to call even one of those people. Again in very cautious manner he said, “it is said that Hago Tafa gave a cow to my predecessor.” I entirely reject his evidence on this issue of taking a live cow from any one.
The next witness who spoke about giving a cow is P.W.9. He said his father told him that he got permission from one Tettey Wayo to build a kraal on land at a place called Hanya-wayo, that he first gave drink to the said Tettey Wayo, and later gave him a cow. Strange enough it turned out later in the course of his evidence that it was his great-grandfather who first began to rear the cattle at the said Hanya-wayo, that upon the death of his great-grandfather, his grandfather succeeded him and continued to rear the cattle, his father then succeeded after the death of his grandfather, and continued to rear the cattle in the same place, and that it was in his father’s time that the drink and the cow were alleged to have been given. If it is custom, a practice of ancient notoriety, why did his great-grandfather and his grandfather not give the drink and the cow? The demeanour of the witness left me in no doubt that the poor youngman gave that evidence with his tongue in his cheek.
Next is P.W.11, he has built a kraal and is rearing cattle on a piece of land and has never been asked to give a cow. But about six years ago he built a kraal in the Dawa area, and he gave a cow to the family living in that area. He said “I gave the cow in accordance with custom. My [p.209] of [1962] 1 GLR 200 father was doing it before he died, so I know that it is custom.” Now the reason given by the witness for giving a cow, namely his father was doing it so he knew it is custom cannot be reconciled with the evidence he gave earlier about his father. According to his earlier evidence the only place where his father built a kraal and lived upon was Amoanakpo; he said: “My father told me that when the land was given to him he gave drink to the land owners. Thereafter he lived with the owners of the land as one of themselves and did everything in common with them. My father had a cattle kraal there. No we did not give them a cow for having a kraal on their land.”
The only land he said his father occupied was Sabakpo. Of it he said: “We only farmed on that land we have no cattle kraal on it” and in cross-examination he said: “My father’s kraals are at Amoanakpo on the Sanusi quarter land. He had none anywhere else. My father lived with them as brothers.”
Where then, and when did his father give a cow to anyone for building a kraal on that person’s land to make him know that that was custom? Of course, it is not surprising that that witness should so contradict himself. If being present when the Ningo Mantse poured libation on the boundary fixed between Ningo and Ada, he could tell the court that because it was not at a fetish grove where the Mantse poured the libation he did not know the fetishes or gods the Mantse called to pour the libation, he is capable of swearing to anything which will suit his purpose. He did not appear to have any regard for the truth. Besides, giving cattle some three years ago does not prove custom. I reject that evidence.
I hold that by customary law a subject of the Ningo stool is not liable to give a cow or pay any tribute of any sort for building a kraal and rearing cattle on any portion of Ningo land.
The next question is did either Kofi Pordier, father of the defendant in the first suit, or Forzi, the father of the defendant and first co-defendant in the second suit obtain permission from the plaintiff’s family to live on the land and to build a kraal on it, and did either of them promise to give a live cow to the plaintiff’s family? Apart from the bare evidence of alleged tradition given by the plaintiff and member of his family, there is the most extraordinary evidence given by the witness, P.W.2, a nephew to the defendant and co-defendant in the second suit, the letter exhibit C which the said P.W.2 was alleged to have carried from the defendant Kudazi to the plaintiff and other equally extraordinary evidence given by P.W.8.
P.W.2 is a person with an axe to grind against his family. He had to admit under great strain that he seduced the wife of his uncle, cousin to his father, and his two uncles and the family had to deal with him. His posture in the witness-box, his insolent and defiant attitude under cross-examination exposed him as man boiling with vengeance against the family, prepared to say anything, as it were, to make his uncles feel that he had got them just where he wanted them. After that witness had given evidence he did not go and sit with the other witnesses for the plaintiff, he sat next to and together with the plaintiff, and the plaintiff’s brother P.W.1 behind counsel for the plaintiff. When his uncle, the first co-defendant in the second suit, an old man of about 75 years, was giving [p.210] of [1962] 1 GLR 200 evidence and mentioned his name, in the face of the court he P.W.2 began to mutter something, making insulting faces and threatening gestures at the old man. The court had to warn him severely.
But even he himself said: “All the time that I have lived on this land, my father, the defendants and all our people have lived on the land doing everything as full owners. All I knew is that the land is Ningo land and we are entitled to live on it as Ningos.”
P.W.7, the asafoatse of the plaintiff’s family also said of the defendants: “It is true that the defendants and their fathers have lived on the land for a very long time, since the time of my ancestors.” He closed his evidence in the following words: “The defendants and their predecessors have occupied the land during all those many generations; they have built villages on it, they have farmed it, and reared cattle on it as if they are owners of it without question.”
In these circumstances is it credible that when a complaint is made to Kudazi that his cattle had destroyed the plaintiff’s farm, he would write a letter of the tone of exhibit C to the Plaintiff? And for that matter if it was with the permission of the plaintiff that the defendants are living on the land and rearing cattle, when the cattle destroyed the plaintiff’s farm, would the plaintiff in his letter of protest, exhibit D, not mention the fact that they are licensees, and would he not threaten to revoke their licence if they could not keep their cattle under control? Or again if Kudazi were a licensee, and some one is trespassing on the land, and it was necessary he should send his nephew P.W.2 to report the trespass to the plaintiff, what need would there be to tell the messenger to repeat to the licensor the terms under which he occupies the land?
The story told by P.W.2 about that message and that told by P.W.8 as to the circumstances and the manner in which he alleged Kudazi told him he occupied the land are so dramatically unrealistic that I reject each such fantastic story.
An important piece of circumstantial evidence on the issue of licence was brought out in cross-examination of the defendant Pordier. A stranger, a Fulani herdsman of the Pordier family died and was buried on the land. It was suggested to the defendant Pordier that because he was a licensee he had to get the permission of the plaintiff’s family to bury the stranger on the land, and that for the permission P.W.1, the plaintiff’s elder brother gave to Pordier one Hausa gown, a piece of calico and some drinks. Pordier admitted sending to inform P.W.1 of the death of the herdsman, and that P.W.1 provided the articles as alleged, but explained that P.W.1 had cattle amongst the cattle being looked after by the herdsman, and so according to custom all persons whose cattle were being looked after by the herdsman had to make some contribution to him, the owner of the kraal for the burial of the deceased herdsman.
Now it is correct that by customary law a licensee has to obtain the permission of his licensor to bury his stranger on the land of the licensor. But in that case it is the licensee rather who has to give drink and other articles to the licensor for the performance of the necessary custom, not the licensor who had to give drinks and articles to the licensee for permission to bury his stranger. Thus this evidence that P.W.1, a fetish priest, an important member of the plaintiff’s family knew of the burial of the stranger on the land by Pordier, and far from demanding drinks etc., from Pordier he rather had to give drinks and other things to Pordier, is an admission by conduct that Pordier’s family are not licensees of the plaintiff’s family, but occupy the land in their own right. [p.211] of [1962] 1 GLR 200 I am satisfied that neither the late Pordier nor the late Forzi was a licensee of the plaintiff’s family and
that they never at any time gave drink to the plaintiff’s family either to build a kraal and rear cattle on the land, or for any purpose whatsoever; and I am further satisfied that they each occupied the land in their right as subjects of the Ningo stool.
As to grazing, collection of firewood and fetching water the evidence is overwhelming that by custom a Ningo man can exercise any of these rights on any part of Ningo land. The customary law in this regard is that a subject of a stool or a member of a community has an inherent right to a fair share of any natural produce of the stool or communal land; that is to say any fruits of the land which were not produced by the industry of a human being. Thus a subject of a stool is entitled to take water from a stream on the stool land, collect fire wood, collect wild fruits, mushrooms, crabs, snails, etc. from, and to graze his cattle on, stool land, provided that he does not exercise that right over any portion of the stool land which has been enclosed by, or reduced into the possession of any other person, subject or grantee of the stool.
Now as Ningo subjects, the plaintiff’s family would own the usufructuary title in any portion of the Ningo stool land of which they could show effective occupation, and would be entitled to a declaration of their title to that area of land. The onus is upon them to satisfy the court as to the extent of the land in respect of which they would be entitled to such declaration as owners of the usufructuary title. There is no doubt upon the evidence that they are in effective occupation of portion of the land, the subject-matter of the suit. But so are the defendants.
As a family or quarter, their family land would form boundary with lands of other quarters or families. Thus the only effective way in which they could prove their boundaries would be to call the families or quarters with whom they form the boundaries to give evidence of the agreed boundaries. The only alleged boundary owner called to support the plaintiff’s case is P.W.8, one of two witnesses whose evidence on another point I have just described as dramatically incredible.
What evidence did this witness give as to the boundary between his family land and the plaintiff’s land. That evidence is as follows: “I know the parties to this suit, and I also know the land in dispute; it belongs to Blebo. I got to know this from the old people, I being an asafoatse. My family have our own family land in Ningo. Our said land forms boundary with Blebo, otherwise known as Osabunya. I attended the survey in this case about two months ago and I pointed out my boundary with the plaintiff to the surveyor as indicated in the plan exhibit E.”
He did not describe that boundary.
Now according to the surveyor, P.W.5, and the plan exhibit E, the plaintiff was the only person who pointed out boundaries at the survey. Therefore there is no evidence which corroborates the evidence of the boundary given. But even if the court should accept the lines pointed out by the plaintiff on the north and west as his boundaries with the said Tei Nartey Boso, the question would be how far east does that land extend particularly in view of the areas which I have found are in the effective occupation of the defendants not as grantees of the plaintiff’s family There is nothing upon which the court can go.
It is true the defendants said they do not own any land and that all the lands belong to the Ningo Mantse. What they mean by that of course is clear, i.e. they claim possessory title as subjects, but not the absolute estate in the land; that, they say, is vested in the stool. [p.212] of [1962] 1 GLR 200
Thus while I am satisfied that the plaintiff’s family are entitled to the possessory title to some of the land, I am unable for lack of evidence to describe their said land with any certainty. The defendants challenged the right of the plaintiff to sue as head of his family. It is definite upon the evidence that the plaintiff is not the head of his family. At the same time there is confusion as to whether the family has a head. But there is evidence which I accept that the plaintiff was authorised by the family to prosecute this case on behalf of the family. The case therefore comes within the exception laid down in Kwan v. Nyieni.4(4) The conclusions I have reached in this case may be summarised as follows:
(a) All lands in Ningo are Ningo stool lands.
(b) The said stool lands are under the immediate control of quarters or families.
(c) Any Ningo subject has an inherent right by grant expressed or implied, i.e. without any application to any one, to occupy portion of the land not already in possession of another, for the purposes of building, and living thereon for any lawful purposes including erecting a kraal, in rearing cattle, and farming.
(d) The head of the family or the quarter and his elders are the proper authority to make the express grant to the subject. This form of grant is exercisable by the headman of a village and his elders.
(e) Where the subject who requires the grant comes from a quarter other than the quarter in charge of the land he requires, he may give a very nominal customary drink, but he is not liable to pay any fees, tolls or annual tribute.
(f) Grants to strangers, i.e. non-Ningo subjects, may be made by the head of a quarter or of a family with the concurrence of the Ningo Mantse and his elders, such grants are made on terms approved of by the Mantse and his elders.
(g) Individual subjects may transfer their usufructuary title to individual strangers, but all such alienations must carry with them obligations upon the stranger-transferee to recognise the title of the Ningo stool and to perform the customary services due to the stool or make contribution when called upon towards the performance of customary services.
(h) The demand of a cow from the defendants is without foundation.
In each of the two consolidated cases, the plaintiff has not been able to prove his case, each such suit must therefore be dismissed.
The plaintiff’s claim in suit No. L.145/1960 is dismissed and judgment entered thereon for the defendant and his claim in suit No. L.8/1961 is dismissed and judgment entered thereon for the defendant and co-defendants with costs in each case fixed at 650 guineas inclusive in the two suits.
DECISION
Actions dismissed.
Judgment for the defendants.
