MANSAH AND ANOTHER v. ASAMOAH [1975] 1 GLR 225

COURT OF APPEAL, ACCRA

Date:    18 FEBRUARY 1975

ARCHER ANIN AND FRANCOIS JJA

CASES REFERRED TO

(1)    Ohimen v. Adjei (1957) 2 W.A.L.R. 275.

(2)    Golightly v. Ashrifi (1955) 14 W.A.C.A. 676.

(3)    Essien v. Duncan (1956) 2 W.A.L.R. 155.

(4)    Poku v. Akyereko [1963] 2 G.L.R. 285, S.C.

(5)    Malm v. Lutterodt [1963] 1 G.L.R. 1, S.C.

(6)    Kakrah v. Ampofoah (1957) 2 W.A.L.R. 303.

(7)    Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A.

(8)    Takyi v. Tettey (1949) D C. (Land) ‘48 – ‘51, 101.

(9)    Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy [1946] A.C. 508; [1947] L.J.R. 26; 176 L.T. 209; 62 T.L.R. 549, P.C.

(10)    Akofi v. Wiresi and Abagya (1957) 2 W.A.L.R.    257, W.A.C.A.

(11)    In re Agyepong (Decd.); Donkor v. Agyepong    [1973]    1    G.L.R. 326, C.A.

(12)    Shai Hills Acquisition (1957) Oll.C.L.L. 177.

(13)    Abowaba v. Adeshina (1946) 12 W.A.C.A. 18.

NATURE OF PROCEEDINGS

APPEAL against the decisions of the district court and the High Court wherein the plaintiffs’ claim for damages against the defendant for trespass had been dismissed on the ground that the land in dispute had been

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abandoned and therefore reverted to the stool which validly granted it to the defendant. The facts are set out fully in the judgment of Archer J.A.

COUNSEL

Dadey for the appellants.

A. Tannoh for the respondent.

JUDGMENT OF ARCHER J.A.

On 30 May 1967, the plaintiff-appellants (hereinafter called the plaintiffs) issued a writ of summons against the defendant-respondent (hereinafter called the defendant and claimed 0400.00 damages for trespass on the ground that the defendant had unlawfully destroyed crops on a piece of land at Apragya granted to their predecessors by the Aduamoa stool in the Kwahu Traditional Area. The defendant denied that he had committed any trespass and counterclaimed that he was a donee in possession of a large tract of land measuring about 61 acres granted to him by the same Aduamoa stool in 1960 and pleaded a deed of transfer executed by the occupant of the stool with the concurrence of his elders.

After hearing evidence, the district court held that the land granted to the defendant was atuogya, that is, abandoned land, which had reverted to the Aduamoa stool, and which according to customary law could legally be granted to the defendant. The counterclaim was therefore upheld and the plaintiffs’ claim was dismissed.

An appeal was lodged at the Koforidua High Court, which after hearing legal arguments, upheld the decision of the court below. The plaintiffs appealed to this court and their learned counsel submitted that if the High Court had considered the evidence more carefully, the conclusion would have been that the plaintiffs or their predecessors were in possession of the area claimed by them and the Aduamoa stool could not make a grant of the same land to the defendant. Moreover, the plaintiffs had never abandoned their farms which were north of a piece of land called Atansie which had fallen into disuse by the death of a previous occupier, a woman called Atansie and that it was this abandoned land which the stool purported to grant to the defendant.

When one has read the record of proceedings and the plans, exhibits B and I, the grounds of appeal become weighty indeed. What are the facts? The first plaintiff s story was that she succeeded her late uncle Kwaku Ayirebi about thirteen to fourteen years before the action was taken in 1967— this would be about 1953. She admitted that she did not know the incidents of customary land tenure and therefore she did not introduce herself to the stool after the uncle’s death as customary successor although she paid the annual tribute in respect of the land to the Nkawkaw Local Council. She tendered two receipts issued by the council for the years 1960 – 61 and 1961 – 62 to prove that she paid £G2 as annual rent for the cocoa farms at Apragya. She testified further that in 1967 she discovered that someone had felled trees on the land in dispute. She later on got to know that it was the defendant. She therefore complained to the Aduamoahene who explained that whatever land was given to the defendant did not include her land. It was then arranged that both parties should visit the land with the stool elders to demarcate her portion of the land

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but the defendant refused to go on the inspection. She therefore took legal action.

The second plaintiff claimed that he succeeded his uncle Kojo Amponsah who died about 1964, that is, about two years before the action. He mentioned that as customary successor, he introduced himself to the Aduamoahene and his elders and presented rum and money to the chief. He also paid 04.00 rent to the Nkawkaw Local Council. This plaintiff revealed that his uncle took his grant jointly with the predecessor of the first plaintiff and estimated the grant to have been made when the railway line on the east of the land was being constructed. According to him, the grant was made by the then Aduamoahene Yaw Ntim and when he died his uncle Kojo Amponsah presented drinks to the new chief, Nana Kojo Boama II. After the death of Boama II, Nana Bediako Akenten became the new chief.

From the two stories, it appears that there was a joint grant to the predecessors of the plaintiffs—this grant on the evidence could be described as a tenancy in common. When Yaw Ntim died, the land continued to be in the possession of both the surviving tenant Kojo Amponsah and the first plaintiff, Afua Mansah, as customary successor of the deceased tenant. Etiquette and good manners according to custom would demand that Afua Mansah should introduce herself to the Aduamoahene as the customary successor to the deceased uncle Kwaku Ayirebi. But, as she explained, she did not know the custom although she went into possession and paid the yearly tribute to the Nkawkaw Local Council. So that until the death of Kojo Amponsah, the land in dispute was in the possession of Kojo Amponsah and Afua Mansah. When Kojo Amponsah died in 1964, the second plaintiff stepped into his place and formally introduced himself to the Adumoahene and continued to pay tribute to the Nkawkaw Local Council. On such piece of evidence, is it possible to say that the predecessors or their successors had abandoned the land in question before 1960?

The defendant, on the other hand, relied on a gift of a larger piece of land (including that claimed by the plaintiffs) made by the Aduamoahene on 20 April 1960 which was evidenced in writing by a deed of gift of the same date and executed by the chief of Aduamoa and his elders. He maintained that what was given him was atuogya land and that he had been in possession since the grant. He therefore counterclaimed for 01,000.00 damages for wrongful entry committed by the plaintiffs.

Are the plaintiffs entitled to succeed on the claim? There is no law in this country that when a party sues that he is entitled to possession of land, the court should expect a very high standard of proof equal to that laid down in a criminal trial. The party can succeed on a balance of probabilities. In this case, the plaintiffs called the reigning Aduamoahene, Nana Bediako Akenten, who was enstooled in 1963, as a witness. He testified that in August 1966 the first plaintiff complained to him that her farm had been interfered with by the defendant. When the defendant came out of detention, he was summoned and informed of the complaint. It was

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suggested that the land should be inspected so that the area, the subject-matter of the complaint, could be demarcated but the defendant refused. This chief also recollected that in 1964, the second plaintiff introduced himself as the customary successor to a deceased uncle. Kwasi Afari, the Adehyehene also testified that when the complaint was lodged the elders decided to go and view the land but it was not possible to go on the inspection and so he offered the first plaintiff another piece of land but she declined the offer. However, the Adehyehene in cross-examination stated as follows:

“When the first plaintiff complained to us about the land I did not bother to find out how she came to the land. I know that her elders have ascertained the land. I know she has had land from the grandsires of Aduamoa … It is correct that in order to avoid trouble we decided to give the first plaintiff another piece of land.”

The evidence of the Aduamoahene and the Adehyehene suggests that the elders must have been convinced or at least satisfied that the complaint was genuine otherwise they would not have gone to the extent of offering alternative land to the first plaintiff.

When exhibit B was ordered the surveyor clearly demarcated the area claimed by the plaintiffs. The area edged red lies within the northern portion of the whole area edged green claimed by the defendant. The surveyor said he saw cocoa trees about twenty years’ old and some food farms. In the north of the area edged red there are onyina trees, okuntan tree, esa trees and afem trees; on the south there are flowers and cola trees which suggest a clear boundary line which divides the cocoa farm on the north from the area south of this boundary where there is no cocoa farm.

The defendant relied on the deed of gift executed in his favour in 1960. When this document was tendered in the district court objection was raised by learned counsel for the plaintiffs but the objection was overruled on the flimsy ground in the following words, “Objection overruled as grantor will soon appear.” How did the trial magistrate know that the grantor will soon appear? It should have occurred to the district court that by virtue of section 14 (5) of the Stamp Act, 1965 (Act 311), as amended by the Stamp Act, 1965 (Amendment) Decree, 1967 (N.L.C.D. 160):

“Save as expressly provided in this section any instrument executed in any part of Ghana or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of Ghana, shall not, except in criminal proceedings, be given in evidence, or be valuable for any purpose whatever, unless it is duly in stamped in accordance with the law in force at the time when it was first executed, in the proportion to which the value of the property situate in Ghana stands, with that of the whole of the property covered by the instrument.”

The words of the section are unambiguous—the document shall not be given in evidence or be available for any purpose whatever. It follows that exhibit I not have been admitted in evidence at all. In any case,

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it was a useless document because section 14 of Act 311 says it shall not be available for any purpose whatever. With exhibit I out of the way, the defendant could have relied only on the alleged customary grant. He testified that the land was given to him in 1960 by the then Benkumhene of Kwahu, i.e. the then Aduamoahene and his elders. He said he was made to understand that the land was atuogya land. In cross-examination he stated as follows:

“A. I was taken round and showed the land that I was given. The plaintiffs’ fourth witness Adehyehene took me round Kwame Onwona, Kwasi Appiah took me round the land. The boundary owners were not present when I was shown the land. I was only shown the land. Opanin Kwasi Afari took the surveyor round to draw up the boundaries…

A.    After the plan had been drawn up I came to ascertain the boundaries . . .

A.    On the land I saw cocoa trees, foodstuffs.

A.    I do not know who owned the land before I was made to understand that it was atuogya land.

The defendant mentioned Kwasi Afari as the one who took the surveyor round to draw the boundaries but Kwasi Afari’s own evidence is to the contrary. When giving evidence for the plaintiffs he said: “We did not go and inspect the land before giving it out to the defendant but the atuogya commissioner demarcated the land to the defendant.” Then in re-examination, Kwasi Afari concluded:

“The grant was brought to us and read to us and I held the plan. I did not ask to know boundaries. Nana Krontihene Yaw Opoku brought the document which I signed. The Krontihene’s brother is the defendant.”

The Krontihene himself gave evidence for his brother, the defendant, and explained that he could not tell whose atuogya land was granted and that he had not been to the land and that his knowledge of the land granted to the defendant stemmed from exhibit I—the plan prepared by the surveyor for the defendant. The atuogya commissioner or custodian, Kwame Onwona, was not called by the defendant. He also did not bring the surveyor who prepared exhibit I to explain the circumstances leading to the preparation of exhibit I and whether adjoining landowners and occupiers were invited to be present. The evidence of the defendant’s grantor in 1960, the ex-Aduamoahene, Enoch Benson Amoako (the defendant’s first witness) was to the effect that when the defendant approached him and the elders for land, the matter was referred to the Adehyehene who said there was some land at Atansie and that a portion could be given to the defendant. He stated further that when he inspected the land with his elders he found that the land had been demarcated

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(by poles) by Opanin Kwame Onwona, who was in charge or caretaker of atuogya lands.

There is some conflict whether the area in dispute is called Atansie or Apragya. But all parties seem to agree that “Atansie” is the name of a woman who farmed in the area and died long ago and her land had become atuogya. It follows that if the stool had this land in mind before they made the grant, then they could have granted only this Atansie land and no other land in the possession or occupation of others. There are no villages in the area and it is therefore improbable that other occupiers or farmers would be found in the area all the time. The impression one gets is that the defendant’s grantor and his elders did not know the extent of the atuogya land left by the woman Atansie. Without taking adequate measures to ascertain the true extent of the atuogya land, they, with phrenetic haste incorporated land and farms which belonged to others in the grant they made to the defendant. Indeed the Adehyehene gave favourable evidence for the plaintiffs.

The plaintiffs are not subjects of the Aduamoa stool although they are Kwahus from Obo, and as such they cannot enjoy rights and privileges usually enjoyed by subjects of the Aduamoa stool so far as possession and occupation of stool land is concerned. They can only occupy stool land with the consent and permission of the stool or a subject of the stool. Nevertheless there are certain principles of customary law which need not be stated extensively. Briefly, a stool cannot alienate stool land in the possession or occupation of a stool subject without the consent of the latter: see Ohimen v. Adjei (1957) 2 W.A.L.R. 275 in which Golightly v. Ashrifi (1955) 14 W.A.C.A. 676 was applied. So far as stranger-grantees of the stool are concerned, provided they comply with the conditions of their grants, it is not open to the stool capriciously to deprive them of their rights of occupation unless there is an agreement to the contrary. Nevertheless, where land has been granted by a stool to a stranger who dies or abandons the land then the land will revert to the stool: see Essien v. Duncan (1956) 2 W.A.L.R. 155.

Two questions must therefore be answered in this appeal.

(1)    Did the plaintiffs or their predecessors abandon the land edged red on exhibit B?

(2)    If they had not abandoned the area edged red in 1960, was the Aduamoa stool at liberty to grant that area in addition to the atuogya land to the defendant?

Before the first question is answered, it must be pointed out that the plaintiffs led the surveyor to the land and clearly delineated their boundaries before exhibit B the plan ordered by the court was prepared. The surveyor saw in this area cocoa trees aged about twenty years. Moreover, when the defendant prepared his own plan exhibit I in 1960, the surveyor who prepared the plan denoted the northern portion of the 61 acres as a cocoa farm. This cocoa farm in exhibit I almost coincides with the area edged red on exhibit B. The defendant’s own evidence shows that during the same year 1960, after the grant, he started harvesting the cocoa by his first caretaker the late Kwasi Appiah and later on by Kofi Sasu. Indeed,

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when he visited the land before the grant was made, he saw cocoa trees and foodstuffs. Does this piece of observation support the suggestion that the farm in question had been abandoned? Whether the area in dispute had been abandoned or not was a question of fact for the trial court and any such finding must be supported by evidence. But in this case, the evidence did not support the finding that the land had been abandoned. As already pointed out, there are no villages in the area in dispute and it would be asking too much to expect the farmers to be on the land all the time. For various reasons, they might be absent from the land for an appreciable period without tilling the land. Mere absence from the land is not the sole criterion for presuming that the land has been abandoned. Most important of all, there must be an intention to abandon. But the surrounding circumstances may negative such an intention. In the present case, during 1960 – 61 and 1961 – 62, the first plaintiff paid the annual tribute or rent to the Nkawkaw

Local Council and produced receipts to that effect. When the second plaintiff also succeeded his uncle in 1964, he not only introduced himself to the reigning chief of Aduamoa but continued to pay the annual dues to the council whenever the clerk of the council called at Hwehwe to collect dues. It appears that the defendant commenced active work on the land between 1966 and 1967 when he started felling trees. He did not plant palm trees until after the plaintiff had complained to the Aduamoahene without success. The only point urged against the first plaintiff was that she did not introduce herself to the chief and his elders when she succeeded her uncle. What did the chief and elders lose? A symbolic gesture and no more. The second plaintiff testified that when he introduced himself all that he was required to do was to present rum and money to the chief. How much money was paid is not in evidence but according to customary law, this amount may be nominal.

What is the purpose of the introduction of a customary successor to a stool land occupier and his elders? When a subject-grantee dies, his customary successor need not introduce himself because the subject-grantee occupies the land as of a right, that is, as a member of the land-owning community. However, when a stranger-grantee dies, his customary successor must introduce himself to the stool so that the chief and his elders must know who occupies the land and from whom the fulfilment of any obligations, imposed by the grant, can be expected. Before 1951, such formal introduction must have been indispensable. But when the Local Government Ordinance, Cap. 64 (1951 Rev.), was enacted, section 72 provided:

“72.    ( 1) To the extent specified in this Part of this Ordinance, the management of Stool lands shall be exercised by the Urban or Local Council, as the case may be, for the area concerned.

(2) Except as specifically provided in this Part of this Ordinance, nothing in this Ordinance shall be deemed to affect the ownership of Stool lands.” Section 74 also provided:

“74.    ( 1)    The revenues from Stool lands within the area of authority of an Urban or Local Council shall be collected by such council and

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deposited in such special fund or funds in the custody of the Accountant-General as the Minister may direct.

(2) Such revenues shall be distributed between the Urban or Local Council, as the case may be, and the Stool concerned in such proportion as may from time to time be agreed between such Urban or Local Council and such Stool . .

But the most drastic provision appeared to be section 75 which reads:

“75.    ( 1)    Any disposal of any interest or right in land which involves the payment of any valuable consideration or which could, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, which is made—

(a)    by a Stool; or

(b)    by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration;

shall be subject to the concurrence of the Urban or Local Council, as the case may be, for the area concerned, and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.”

These statutory provisions made serious erosions into a stool’s preserves and its exclusive dominion over the management and the collection of revenue from stool lands although the stool remained the owner and no concurrence of the local or urban council was required when the grant was made to a subject of the stool without valuable consideration: see Poku v. Akyereko [1963] 2 G.L.R. 285, S.C. From 12 January 1952 when Cap 64 came into force, the predecessors of the plaintiffs had to pay all their annual dues to the Nkawkaw Local Council by virtue of sections 72 and 74 of Cap. 64. As the payment of the annual tribute to the local council was the only obligation due from the grantees to the stool, is it open to the stool to argue that because the first plaintiff did not formally introduce herself bearing in her arms rum and money, she should be deprived of her interest in the land? In any case, the grant was held jointly by her deceased uncle Kwaku Ayirebi and Kojo Amponsah. On the death of Kwaku Ayirebi the land remained in the possession of Kojo Amponsah until his death in or about 1964. So that, even if the first plaintiff did not introduce herself, there was a surviving common tenant Kojo Amponsah in occupation and possession in 1960 when the stool purported to make a gift of the land to the defendant. It sounds grossly unconscionable on the part of the stool to say to the first plaintiff, “Your tribute we shall take through our statutory manager and receiver, i.e. the Nkawkaw Local Council, but your occupational right to the farm we shall not recognise because you have not climbed the steps of our ahenfie bearing rum for our consumption.”

It seems from the surrounding circumstances in 1960 that the plaintiffs and their predecessors had not abandoned the land in dispute because

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there was no intention to abandon: see Malm v. Lutterodt [1963] 1 G.L.R. 1, S.C. Perhaps, the statement by Sarbah in his Fanti Customary Laws (3rd ed.), p. 67 that “where a person in possession of a portion of the public land abandons it, or his family have abandoned it for more than ten years at least, the village headman and elders can allow another person to occupy the same,” should now be treated with judicial caution. What matters is the intention to abandon, the animus deserandi et relinquandi.

As there was no abandonment by these strangers, was the Aduamoa stool entitled to grant the land to a subject of the stool? The defendant is the brother of the Krontihene and also a nephew of Kwame Onwona the atuogya commissioner or caretaker. He was also the ex-regional secretary of the former Convention People’s Party in the Eastern Region. He must not only have had very close connections with the Aduamoa stool but must have been a political force to reckon with. When the Aduamoahene informed him that the plaintiffs have asserted rights to a portion of the land granted him, he was adamant when in fact at that time he had not undertaken any development of the land. Was he entitled to “a most-favoured grantee” clause? He was not. The mere fact that these plaintiffs were strangers to the stool did not place him in a better position. Whatever interest their predecessors had, was heritable and provided they remained in occupation and practised good husbandry and continued to pay the levy of £G2 per year, the stool could not override their interest by making another grant to a subject of the stool: see Kakrah v. Ampofoah (1957) 2 W.A.L.R. 303. On the other hand, the intransigence of a stranger grantee coupled with neglect of the land concerned over a considerable period of years, might constitute abandonment entitling the stool to reallocate the land to another: see Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A. However in the present case, there is no evidence that the stool had made any reasonable demand and that the plaintiffs had proved truculent or that they had neglected the farm. On the contrary the cocoa farm was replete with foliage and pods, and that is why the defendant plucked the cocoa in 1960 thereby reaping what he had not sown.

In his evidence for the plaintiffs at the trial, the Aduamoahene testified as follows:

“People not subjects of my stool pay £G2 or 04.00 per annum. Another term is that the chief of Aduamoa reserves the right to take such land at any time and that is correct. It is the custom to take back any stool land left vacant by a stranger either by death or by leaving the area.”

It is not clear what the chief meant when he said the stool reserved “the right to take back the land at any time.” Does he mean that when a stranger has been granted land for farming purposes and he has cultivated fruit-yielding trees like cocoa, oranges, etc. the stool, like a famished lion in its lair can pounce and retake the land as soon as the trees have started yielding fruit? If that is the custom in that area, then it should not be encouraged. The case of Takyi v. Tettey (1949) D.C. (Land) ‘48 – ‘51, 101

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throws some light on the Kwahu custom so far as cocoa farms are concerned. It was held in that case in the Accra Divisional Court (Lands Division) that the Kwahu custom was that a stool could not sell farms made by subjects of the stool when it sold forest land and that the possessory rights of the farm owners passed to their descendants but if the rights were ever not exercised the purchaser would then be entitled to exercise his full rights. In his judgment Quashie-Idun J. (as he then was) added, at p. 103 as follows:

“Since writing this judgment Counsel for the appellant has called my attention to the case of Kwamin Ayim versus Mensah (Divisional Court, 30 October 1911, unreported; affirmed (1911) 2 Ren. 636) decided by Sir Philip Crampton Smyly on the 30th of October, 1911, in which evidence of the Kwahu native custom relating to alienation of land was given.

It appears from the judgment that the evidence given was that where a chief sells land which had been cultivated by natives as cocoa farms, the cultivator was entitled to continue working on his farm or else be compensated for the trees he had planted, the value of each sound tree being estimated.”

This in effect means that the stool subject farmer cannot be deprived of his farm unless he opts for compensation. The same principle ought to apply to the stranger cocoa farmer because both the stool subject and the stranger have heritable interests. In any case, this was the practice in Kwahu at the beginning of the century and it must be a very daring stool occupant who would venture to suggest, half a century later, that in Kwahu stranger-grantees of farming lands have no security of tenure whatsoever. In modern Ghana, a stranger-grantee of farming land, which he has cultivated, has security. His position should be distinguished from the migrant farmer who moves from one place to another according to the seasons. The stranger-grantee like the subject-grantee, has a possessory heritable interest and so long as he continues to discharge his obligations, he cannot be deprived of his interest, although unlike the subject-grantee, he cannot alienate or dispose of his interest inter vivos without the consent of the stool.

Concurrent findings have been made by two lower courts and the question is whether this court is competent or at liberty to disturb these findings. In Srimati Bibhabati Devi v. Kumar Ramnendra Narayan Roy [1946] A.C. 508, the Judicial Committee of the Privy Council reviewed its previous decisions on the matter and laid down eight principles for guidance in refusing to decline to review the evidence for the third time when there are concurrent judgments of two courts on a pure question of fact. The principles also referred to the special circumstances which will justify a departure from the practice. These principles appear to have been followed strictly by the former West African Court of Appeal; for example, see Akofi v. Wiresi and Abagya (1957) 2 W.A.L.R. 257, W.A.C.A. The seventh principle which the Privy Council laid down as stated in the headnote was:

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“That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country.”

The Privy Council no doubt had to deal with appeals from various jurisdictions throughout the former British Empire (now the Commonwealth) pregnant with a diversity of systems of jurisprudence, and therefore the attitude of the Privy Council in formulating its seventh principle is understandable. The same considerations applied to the former West African Court of Appeal which dealt with appeals from Gambia, Gold Coast (now Ghana), Nigeria and Sierra Leone. The Court of Appeal in Ghana deals with only one system of domestic law and should not be yoked by the dictates of past forensic practices when the conditions and circumstances for the observance of these practices are no longer prevalent or existent. The powers of this court are contained in rules 31 and 32 of the Court of Appeal Rules, 1962 (L.I. 218). Rule 32 provides: “The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs . . . “ It appears therefore that concurrent findings of two lower courts should not inhibit this court from adjudicating the issues according to the evidence. In any case the fourth principle of the Judicial Committee as stated in the headnote to Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy (supra) provided:

“That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure . . . The question whether there is evidence on which the courts could arrive at their findings is such a question of law.”

In the present appeal, the plaintiffs have succeeded in proving that they had never abandoned the area edged red on exhibit B and as customary successors they are entitled to the possession of all the farms in the area edged red. They are also entitled to 0400.00 damages for trespass committed by the defendant.

The appeal is therefore allowed and the judgment of the court below is set aside. The counterclaim of the defendant is hereby dismissed with costs for the plaintiffs.

JUDGMENT OF ANIN J.A.

I am in general agreement with the well-reasoned and comprehensive judgment of my brother Archer; and I also agree that the appeal should be allowed. However, out of deference to both the learned High Court judge and the learned district magistrate whose decisions we are reversing, I propose to add a few reasons of my own. Before doing so, I must state that this court is not inhibited by the former appellate courts’ rule of practice of not disturbing two concurrent decisions of the lower courts except in special cases—a rule discussed by my brother Archer.

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Admittedly, the decisions of the former appellate courts are usually accorded the greatest respect, but, as was recently held by this court in In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326 at pp. 331-332, C.A. the decisions and opinions of both the former West African Court of Appeal and the Judicial Committee of the Privy Council are not binding upon us. In any event, I find that both the learned High Court judge and the district magistrate in this case drew wrong legal inferences from facts which were either largely admitted or else not in controversy. The perception or the finding of the primary facts was a matter for the trial court; but this appellate court is in as good a position as the trial court to evaluate the evidence and form its own independent opinion, while of course giving due weight to the opinion of the inferior courts.

As I see it, the cardinal issue in this case was whether the disputed land of the plaintiffs which has been clearly delineated and edged in red in exhibit B (the plan ordered by the trial court) was atuogya, i.e. abandoned land or not. If it was, then under customary law it reverted into the ownership of the Aduamoa stool upon abandonment, and it could be allocated by the stool-owner to the defendant. In the first place, whether the disputed area was atuogya or not, is a question of mixed fact and law. In this case, it was not denied that the uncles of the first and second plaintiffs were before their deaths in 1953 and 1964 respectively, tenants of the Aduamoa stool in respect of their cocoa and foodstuffs farm at Apragya. The court’s surveyor (Mr. F. B. Ansong) saw some cocoa trees of about twenty years’ vintage and foodstuffs standing in the disputed area, while cola trees and flowers were observed by him to be the boundary marks between the disputed farm and Atansie’s atuogya lying to the south. Under cross-examination the defendant admitted having plucked cocoa from the land (including the disputed area) demised to him in 1960—in the very year of the grant. He was given to understand by his grantors that the whole of the demised land was atuogya, but he did not know who the previous owners were. The custodian of the stool lands, Kwasi Afari the Adehyehene, himself confirmed the earlier grant of the land to the first plaintiff s predecessor when he stated under cross-examination by the defendant, “I know that her elders have ascertained the land. I know she has had land from the grandsires of Aduamoa.” In the second place, it was not in controversy that the first plaintiff omitted to perform the customary formalities of introducing herself as the successor of her deceased uncle, Kwaku Ayirebi, to the Aduamoa stool elders. Nevertheless, her evidence that she paid annual rent for her Apragya farm amounting to 0G2 per annum for the two years 1960 – 61 and 1961-62 to the stool land revenue officer, corroborated as it was by exhibits Al and A2 (the official receipts) stood uncontradicted. As far as the second plaintiff is concerned, his allegation of having performed the custom of introducing himself as the customary successor to his deceased uncle, Kojo Amponsah, to the Aduamoa chief and elders in 1964; and his further allegation of regular payments for tribute of 0G2 per annum made by him to the Nkawkaw Local Council were not challenged.

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A third significant fact which was likewise not in dispute was that when the first plaintiff protested in 1966 to the Aduamoahene and his elders for having wrongfully allocated part of her Apragya farm to the defendant, the elders offered to inspect the land; and in the words of the custodian of stool lands, Kwasi Afari, “slice out her portion to her,” even though, as it turned out, no further action was taken on the matter. Furthermore, this custodian of the Aduamoa stool lands disclosed in his testimony that he was prepared to offer the first plaintiff another piece of land if only she would drop her complaint. In my opinion, this constitutes an admission that the stool invaded her usufructuary rights by enclosing the alleged farm of her deceased uncle in the allocation made to the defendant in 1960.

The law of atuogya has been fully and accurately expounded in the leading judgment. I wholly subscribe to the point made by my brother Archer that the physical fact of abandonment of the land must co-exist with an intention to abandon same before the land can be truly described as atuogya or abandoned under our customary law. If this were not so, a farmer who practises shifting cultivation or does not actively cultivate crops in his fallow or secondary forest land could be deemed to have, without more, abandoned his land: see the following dictum of Ollennu J. (as he then was) in the Shai Hills Acquisition (1957) Oll.C.L.L. 177 at p. 181:

“In my opinion, land, particularly land on the plains where farming is chiefly by shifting cultivation, is not necessarily abandoned only by reason of the fact that it was not being used at any particular point of time either for farming or for residence. Abandonment consists not so much in allowing land to lie waste, but rather on the non-exercise of right to immediate control.”

On the facts of this case it is quite clear that the plaintiffs did not intend to abandon the Apragya farm they inherited from their deceased uncles; otherwise they would not have paid farm rents to the stool land revenue officer, who is by operation of law the administrative agent and receiver for the stool land owner.

The omission of the first appellant to perform the custom of introducing herself before the stool elders was clearly a breach of etiquette and protocol; but it cannot, in my opinion, derogate from the fact that she became entitled as of right to the estate of her late uncle the moment she was appointed his customary successor by her family: see Kakra v. Ampofoah (1957) 2 W.A.L.R. 303, where Adumua-Bossman J. (as he then was) held that stool land held by a stranger for a determinable estate devolved on his death intestate to his successors as of right, and the stool could not intervene to confiscate the land on account of the refusal of the successors to enter into a new tenancy agreement and to contribute to a stool debt not incurred in connection with the particular estate inherited by the successors. The true position in my opinion, is that the stranger-grantee’s determinable

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estate is heritable, and it vests immediately in his successor as of right, upon his appointment as customary successor: see also Coussey P.’s dictum in Akofi v. Wiresi and Abagya (1957) 2 W.A.L.R. 257 at p. 259, W.A.C.A.:

“It is a common form of tenure throughout the country for a landowner who has unoccupied virgin or forest land, which he or his people are unable to cultivate, to grant the same to a stranger to work on in return for a fixed share of the crops realized from the land. In such a case the tenant-farmer, although he has no ownership in the soil, has a very real interest in the usufruct of the land. The arrangement may be carried on indefinitely, even by the original grantee’s successor, so long as the original terms of the holding are observed.”

(The emphasis is mine.) On the facts of this case highlighted above, the first plaintiff paid the stipulated farm rent to the stool land revenue officer; consequently, the determinable estate which she inherited from her deceased uncle prevailed against the uncustomary and ineffectual grant of the same estate by the stool to the defendant.

Another error of law which is discernible in the judgment appealed from is the proposition made by the Aduamoahene which was accepted by the learned judge, to wit, “it is the custom to take back any stool land left vacant by a stranger either by death or by leaving the area.” From the decided cases mentioned both in this opinion and in the leading judgment it is clear that the land only becomes atuogya if either the stranger died intestate without a successor or if the land was effectively and voluntarily abandoned without an intention on the part of the grantee of returning to it. Death of the stranger simpliciter does not terminate the determinable estate. The determinable estate enures to the benefit of and vests automatically in the customary successor, since it is heritable. Again, it is a fallacy to state that the stranger’s estate reverts to the stool, if the land becomes vacant or is deserted. As has been already stressed, the fact of abandonment must co-exist with the intention to abandon the land before the land can become truly atuogya. In this case, both the deceased uncles were succeeded by the plaintiffs, their customary successors; therefore it cannot be said that the Apragya land became atuogya on the occasion of the deaths of the late Kwaku Ayirebi in 1953 and Kwadwo Amponsah in 1964. Neither was there any evidence of voluntary abandonment of the farm by the successors. Not only did they remain in effective occupation and possession; but they also paid accruing farm tributes to the stool land revenue officer; and collected foodstuffs from the farm. Far from being abandoned, the farm in question was blooming with cocoa, foodstuffs and cola trees.

It would appear that the learned judge concluded that the farm was atuogya simply because the Aduamoahene stated so in evidence. In my opinion, whether the disputed area was atuogya or not, was essentially

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an inference of law from the facts, the assertion of the chief notwithstanding. The learned judge should, in my view, have examined the material evidence, particularly the evidence of the stool elders cautiously, since these elders had made the wrongful re-allocation to the defendant and would therefore be naturally inclined to defend their action. The resolution of the central issue called for an objective analysis and evaluation of the evidence in the light of the customary law of atuogya. This the learned judge unfortunately failed to do; instead he merely accepted at its face-value the dogmatic pronouncement of the chief that the land was atuogya.

Turning to the issue of possession, the learned judge held that the plaintiffs had failed to demonstrate their possession, prior to the grant, of the land to the defendant. In the light of the above conclusion the plaintiffs’ estates vested in them upon their appointment as customary successors; and in the light of the evidence of the plaintiffs’ due payment of accruing farm rents, coupled with their cultivation and enjoyment of foodstuffs from the farm, this conclusion of the learned judge is manifestly wrong. In any event, on the pleadings it is clear that the plaintiffs’ allegation that “they had been in possession of the estates of their late uncles since their deaths” (vide paragraph (4) of the statement of claim) was not specifically traversed by the defendant, who merely contented himself with a feeble non-committal assertion—”I am not in a position to admit or deny that averment” (see paragraph (1) of the defence). In the state of the pleadings, and in the light of the above undisputed facts, I hold that the plaintiffs’ possession and indeed their title to the disputed area was amply established.

Finally, I concur in the observations of my brother Archer on the unenforceability of the defendant’s deed which is inadmissible for want of stamping. I would only add that we are entitled by such authorities as Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 at p. 20 to take this objection since the said deed (exhibit 1) is inadmissible per se for want of stamping: “There are certain types of evidence . . . which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal . . .”

I agree therefore that the appeal should be allowed.

JUDGMENT OF FRANCOIS J.A.

I must confess to a diffidence in adding to the full and able expose delivered by my brother Archer; but out of respect for the learned High Court judge from whom we are differing, I find it necessary to express a few words.

I think the issue is indeed a very narrow one. It involves the determination of whether the plaintiffs’ land could be truly described as atuogya (abandoned land) to allow of its alienation to the defendant.

The evidence being preponderant that the plaintiffs were in possession when the alleged grant was made to the defendant, and the fact not being disputed either that the plaintiffs’ predecessors had received valid grants decades earlier from the Aduamoa stool, no onus could possibly lie on the

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plaintiffs to establish the negative of disproving the existence of atuogya.

In my respectful view, the burden shifted to the defendant to establish that the land in dispute was atuogya land as his very title was structured on the plaintiffs’ abandonment of their previous possession. That the defendant did not appreciate he had this hurdle to clear is even apparent from his pleadings where he made no attempt to dispute the plaintiffs’ possession. His confession that he took over a flourishing farm which yielded about four loads of cocoa each year was totally destructive of his case.

This is not to be interpreted as throwing overboard the elementary cannon that a plaintiff s success must derive from the strength of his own endeavours and not be dependent on the weakness of his adversary. But where, as in this case, the defendant’s plea is more of a confession and avoidance, with everything confessed and nothing avoided, the only conclusion that can be legitimately drawn is that the plaintiffs’ formidable case has not been impeached rather than that it was propped by the weakness of the defendant.

Again, in so far as the well-defined parcel of land, previously cultivated by one Atansie, was undisputedly atuogya land, upon the previous owner’s abandonment of it, any attempt to extend the Atansie area to cover the plaintiffs’ land, required in my view sufficient proof. The defendant’s grantors did not bother to acquaint themselves with the current farming situation in the area, they could therefore not confidently depose to the extent of the Atansie land. The defendant suffered from the same disability. Atansie’s land could not therefore be equated with the appellants land.

In those circumstances it could not be successfully urged that the plaintiffs had yielded their possessory rights over the land by abandonment to impeach their title.

I agree therefore that the appeal must be allowed.

DECISION

Appeal allowed.

S. E. K.