COURT OF APPEAL
DATE: 10 JULY 1967
BEFORE: OLLENNU, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Quaye v. Mariamu [1961] G.L.R. 93, S.C.
(2) Wiapa v. Solomon (1909) Ren. 410.
(3) Kwami v. Quaynor [1959] G.L.R. 269, C.A.
(4) Adoaku v. Nyamalor [1963] 1 G.L.R. 279, S.C.
NATURE OF PROCEEDINGS
APPEAL by the plaintiff from a judgment of the High Court, Tamale in an action for declaration of title to land situate at, Walewale. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Totoe for the appellant.
da Rocha (Dei Annang with him) for the respondents.
JUDGMENT OF OLLENNU J.A.
Ollennu J. A. delivered the judgment of the court. This appeal is from a decision of the High Court, Tamale. It is about the first land appeal which has come to this court from the High Court exercising jurisdiction in land suits in the Northern and Upper Regions under the Courts Act, 1960 (C.A. 9), now repealed by the Courts Decree, 1966 (N.L.C.D. 84). The land in dispute is a plot of building land situate at Walewale within the Wungu division of the Mamprusi Traditional Area of the Northern Region.
The occupant of the paramount skin of Mamprusi, i.e. the paramount chief, is known as the Nayiri, the occupant of the Wungu divisional skin, i.e. the divisional chief of Wungu, is known as the Wunaaba, and the occupant of the sub-skin of Walewale, i.e. the chief or sub-chief of Walewale, is known as the Duranaa. By the custom of the Mamprusi Traditional Area, as proved by the evidence before the court below, the Duranaa, when elected, is installed by his divisional chief, the Wunaaba, and the divisional chief, the Wunaaba, when elected, is installed by the paramount chief, the Nayiri. Both the plaintiff, and the second defendant, are subjects of the Walewale skin, and the first defendant is the Duranaa.
The plaintiff claimed title to the land by virtue of a grant alleged to have been made of it to him by the Wunaaba, who, with the consent of the Duranaa, he contended, is the proper authority according to customary law, to administer and make grants of lands attached to the skin of Walewale, i.e. the divisional skin. The defendants on the contrary contended that the land is attached to the Duranaa skin, i.e. the sub-skin, and under the administration of the Duranaa, and that the Duranaa is the competent authority to control the same and to make grants of portions of it to subjects of the Walewale skin and non-subjects alike for building and other purposes.
[p.508] of [1967] GLR 506
In support of his claim the plaintiff pleaded in paragraphs (3) and (4) of his statement of claim that:
“(3) The plaintiff some time ago requested of the late Chief Duranaa Nantonma of Walewale for the piece of land the subject-matter of this suit to erect buildings thereon.
(4) As custom demanded, the chief of Walewale led the plaintiff to the grand landlord of all Walewale lands one Chief Wungu who granted the said piece and parcel of land to the plaintiff.”
In reply to those two paragraphs of the statement of claim the defendants pleaded that:
“(4) As to paragraph (4) of the statement of claim the first defendant says that there is no custom that the chief of Walewale must approach the chief of Wungu before a grant of the Walewale-lands should be made as alleged or at all, the grant of such lands having nothing to do with the chief of Wungu.
(6) The defendants say that the first defendant was approached by both the plaintiff and the second defendant for pieces of land and he, the first defendant, made grants of two separate but adjacent or adjoining plots first to the second defendant and then to the plaintiff and the plaintiff has since erected a building on his plot and the second defendant is still in the process of erecting a building on his own plot.”
Upon the pleadings and the evidence led by the parties, one and only one issue was joined for determination and that is: who, by customary law, is the proper person to make grants of Walewale lands, is it the Wunaaba, or the Duranaa? The court below resolved that issue in favour of the defendants andheld that the Walewale lands are attached immediately to the skin of the Duranaa, and that the Duranaa is the competent authority to make grants of those lands. Consequently the court below dismissed the plaintiff’s claim on the ground that he had failed to prove the validity of his grant.
Against that decision the plaintiff appealed to this court on two main grounds, namely:
“(1) That the judgment of the court must be set aside because the court failed to find the primary facts.
(2) That the plaintiff led sufficient evidence which if accepted would have supported his case and the court erred in holding that ‘the plaintiff failed to prove the validity of the grant alleged to have been made to him of the land in dispute’.” [p.509] of [1967] GLR 506
The two grounds were argued together.
Counsel for the plaintiff submitted that the court below failed to find the primary facts and therefore its judgment is baseless and vague; he relied upon Quaye v. Mariamu [1961] G.L.R. 93 at p. 95, S.C. where van Lare J.S.C. delivering the judgment of the Supreme Court said, inter alia: “The sole matter of complaint in this appeal is that the learned trial judge had not found the primary facts and that the judgment is vague. I think there is great force and substance in this contention. This court can only do justice between the parties if it is satisfied that the foundation has been laid by the trial judge whose duty it is to resolve the primary facts. Once the facts are found an appellate court is in as good a position as a trial judge to draw inferences or conclusions from those facts; but it cannot embark on this task unless the facts are resolved. This court has often expressed the opinion that if the question ‘What are the facts found ?’ cannot be answered with precision and particularity the judgment ought to be held unsatisfactory and a new trial ordered because the judicial process had not been applied.”
There is no doubt that the principle enunciated in the case cited is a sound proposition of law. However, when he came to apply it to the judgment in this case, counsel honourably conceded that the trial judge made clear and unambiguous findings of the primary facts, and therefore his criticisms of the judgment are baseless.
All that is left to be decided in this appeal, therefore, is whether the primary facts found, which lay down the customary law as to administration of Walewale lands, is warranted by the evidence.
Each of the parties led evidence of his version of the custom appertaining to the authority competent to make grants of Walewale lands. The evidence of custom tendered by the plaintiff was led by his second witness, one Wuni Wungo, a Wudanaa or chief linguist to the Wunaaba, who says that the physical demarcation of the land to the plaintiff was done by him and a younger brother of a former Duranaa, and that they did so upon directions of a former Wunaaba, to whom the Duranaa had made an application on the plaintiff’s behalf. His evidence of custom as to ownership and control of the land given under cross-examination is as follows:
“The Walewale lands are not attached to the skin. They belong to the Wunaaba. The Duranaa is not paid by the Wunaaba. His income is to enjoy the land. He takes anything that comes from the land. He shows it to Wunaaba before he enjoys it. Any Duranaa brings 22s. and 100 kola nuts to the chief before he is installed. It is because of the land attached to the skin that
[p.510] of [1967] GLR 506.
people bring 22s. and 100 kola nuts to the chief. The first defendant gave 22s. and 100 kola nuts. The Wunaaba can give any land at Walewale to anybody, but he has to inform the Duranaa before he does so.
The Wunaaba is more authoritative on questions of Wungu lands (including Walewale) than I am. As part of the installation ceremony the Duranaa is told that stones, lands, trees, everything now belong to the Duranaa.That is what all our ancestors do.” (The emphasis is mine.) And in re-examination he further said:
“The Duranaa shows the fruits of the land to the Wunaaba. The Wunaaba can give him a share. The land doesn’t belong to the Duranaa but dawadawa trees, shea nut trees belong to the Duranaa. The real significance of the installation ceremony is that the Duranaa has the use of the economic trees.” (The emphasis is mine.) As a holder of a traditional office under the Wunaaba, this witness, the Wudanaa, is competent to give evidence of the customary law with respect to tenure of land within the Wungu division.
Against this evidence, the first defendant himself gave evidence of his version of the customary law, and was corroborated by the reigning Wunaaba himself. Each of them, a holder of traditional office in the Wungu division, is competent to give evidence of customary tenure of lands in Walewale. The Wunaaba testified as follows:
“I know the Walewale lands. Since I became the Wunaaba I have never given any plot of land at Walewale to anyone. As a divisional chief, if I have given land to a chief, say the first defendant, and someone wants a plot, he has to approach that chief, the first defendant. The Walewale lands are attached to the skin. Once you are installed as a chief the land is attached to the skin. I installed the first defendant.” He expanded upon and clarified the evidence in his testimony under cross-examination, re-examination and examination by the court as follows:
“Cross-examination: I gave the land to the first defendant to look after. The Walewale land belongs to me. The whole land of Mamprusi State belongs to the Nayiri and I was installed as the Wunaaba with my portion and I gave my lands to the Duranaa. The land belongs to the Duranaa and if anybody wants to do anything on it he has to approach him, and he is to see to it. I still retain ownership. If the Duranaa gets something from the land and it is not plenty
[p.511] of [1967] GLR 506
and he wants to use it he can do so. But if it is plenty and he feels he can give some to me as an old man he can give it to me and I will take it. I did not give the land to the Duranaa to render account to me. The Duranaa has a right to give the land to anybody. The first defendant was installed by Alasani. Once he was installed by my predecessor I take it that I installed him. I have not heard that Alasani gave out land to anybody. If somebody comes to tell me that he has seen a Walewale chief for a piece of land I will ask him to go and see the Duranaa. I will send my bearer with him. If the Duranaa gives him the land it is not my concern.
Re-examination: It is the Duranaa who has the right to grant lands at Walewale. The land is to remain there for every Duranaa. Where there is no Duranaa I take charge until I give it to another Duranaa.
By court: Once there is a Duranaa I have no power to give Walewale land to anybody. If I give land to anyone the Duranaa can object to it, and that grant will not be valid.”
Surely, the evidence given by the sole expert witness of custom, i.e. the Wudanaa, called by the plaintiff, that the Duranaa is told at his installation,that “stones, lands, trees, everything now belong to the Duranaa,” and his further evidence that “dawadawa trees [and] shea nut trees belong to the Duranaa” and that the Duranaa has the use of economic trees, is a positive admission that the right to administer and otherwise deal with the Walewale lands is vested in the Duranaa, the chief of Walewale. Those pieces of evidence corroborate the evidence given by the Wunaaba to whom that witness of the plaintiff is alinguist. Upon consideration of the totality of the evidence given for both sides, it is made abundantly clear that the whole evidence proves one and only one custom, namely, that the Walewale lands, by virtue of the facts that they are attached immediately to a sub-skin, the Duranaa skin, are at one and the same time lands of the Wunaaba, i.e. of the divisional skin of Wungu, and at the same time are lands of the paramount skin, i.e. the Mamprusi skin of the Nayiri. But the proper person to make valid grants of those lands is the occupant of the Walewale skin, i.e. the Duranaa. What dawadawa trees and shea nut trees are in Northern and Upper Ghana, that is what palm trees, kola nut and other natural economic trees, i.e. uncultivated economic trees, are in other regions
[p.512] of [1967] GLR 506
of Ghana. In those other regions of Ghana, as between the paramount stool, the divisional stool and the sub-stool, it is the sub-stool or the divisional stool to which a particular land is immediately attached and not either the divisional stool or the paramount stool to which it is mediately or remotely attached, which is vested with the right to such economic trees and which has the right to deal with the land, and to make grants of it. This case, therefore, provides further confirmation that the customary law as to administration of stool or skin land, is common to all regions of Ghana: see Wiapa v. Solomon (1909) Ren. 410; Kwami v. Quaynor [1959] G.L.R. 269, C.A.; and Adoaku v. Nyamalor [1963] 1 G.L.R. 279, S.C. Since the facts found by the court below and which establish the custom are fully supported by the evidence, this court is bound to uphold the decision of the court below. The appeal must therefore be dismissed, and, it is accordingly dismissed.
DECISION
Appeal dismissed.
S.O
