COURT OF APPEAL
DATE: 12 JUNE 1967
BEFORE: OLLENNU, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A.
(2) Kuma v. Kuma (1936) 5 W.A.C.A.4, P.C.
NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court, Cape Coast, given in its appellate jurisdiction on 26 February 1964, unreported, setting aside a judgment dated 30 December 1960 that was given in favour of the appellant by the magistrate of the Local Court, Komenda, upholding the appellant’s claim to ownership and possession of a piece of farm land. The facts are sufficiently stated in the judgment of Lassey J.A.
COUNSEL
T. D. Brodie-Mends for the appellant
I. K. Abban for the respondent
JUDGMENT OF LASSEY J.A.
This is an appeal from a decision of the High Court, Cape Coast, given in its appellate jurisdiction dated 26 February 1964 (unreported), setting aside a judgment dated 30 December 1960, given in favour of the plaintiff-appellant (hereafter called the appellant) by the magistrate of the Local Court of Komenda, in which he upheld the claim of the appellant to ownership and possession of a small piece of farm land known as “Kotokuom” situate at Bisease in the Central Region of Ghana, and directing that judgment be entered rather in favour of the defendant-respondent (hereafter called the respondent) Ekua Blow for possession of the said piece of farmstead.
The main question arising on this appeal is whether a licensee, who has been permitted according to custom to occupy and use a piece of another person’s ancestral land and who in fact has enjoyed an unfettered occupation and use of portions of that land, could rely on such leave and licence as a defence to a claim by the true owner or lessor or his descendants to exercise their natural rights of ownership or possession over portions of such an ancestral land not actually farmed upon or specifically reduced into effective use or occupation by the licensee at custom. In other words, according to customary practice, can an owner of land over which he has permitted a licensee to live and farm exercise his undoubted right of ownership or use of portions of this land contemporaneously with the right of the licensee to live on and use those portions of such ancestral land which have not been specially allocated to or appropriated to actual use by the tenant or licensee, or is the original grantor or his descendants’ right to possession or to occupy and use this land excluded entirely because of the subsistence of the license?
[p.426] of [1967] GLR 424
At the date of the proceedings in the Local Court at Komenda, the appellant’s claim being one of damages for trespass, and the defence being that the land on which the disputed farmstead was cultivated was a portion of the respondent’s ancestral land, ownership or title was thereby indirectly put in issue, and the court should be satisfied that the appellant had discharged the onus which lay on him of demonstrating beyond reasonable doubt that the title to the disputed land or farmstead was in him or his family.What is in dispute between the appellant and the respondent was which of them is presently entitled to possession of that part of the land on which lies the disputed farmstead. There was no dispute between the parties as to the identity of the farmstead being claimed by the appellant; equally it was not seriously disputed that the said farmstead is situate on a portion of land appurtenant to the land on which the respondent and her family have been living and are in occupation. The fact that the respondent’s ancestors had occupied and used portions of land on which the disputed farmstead was made was admitted at the trial by the appellant; but he further explained that prior to the trespass complained of by him, the respondent or her ancestor did not enjoy exclusive possession of the whole of the area of which the farmstead in dispute formed part because their long occupation of a portion of the entire land which the appellant claimed to be his ancestral land was with the permission of his ancestors.
At the trial the appellant’s case in a skeleton form was that the land on which the disputed farm is situate was his family’s property and he called evidence to substantiate his family’s title to the whole of the land and also to show how the respondent came to be on the land. The trial magistrate believed and accepted the evidence of the appellant’s witness, Kwamina Esiampong, a farmer living at Bisease, who testified to the effect that over 50 years ago two elderly men in the respondent’s line of descent accompanied by some women sought permission from the appellant’s ancestor one Kwesi Kunto to live on the appellant’s family land. The evidence showed that the respondent’s ancestor hailed from the Wassaw area where they migrated from. According to the appellant’s third witness the respondent’s ancestor’s request to be permitted to stay with the appellant’s ancestors was favourably considered by the elders at a meeting convened for that purpose, and the respondent’s elder Enimah and his people were allowed to settle on the appellant’s land on which they founded a village. Later members of the two families intermarried and their descendants, including the parties to the present dispute, indiscriminately and contemporaneously appropriated to their
[p.427] of [1967] GLR 424
respective uses unoccupied portions of the appellant’s ancestral land without let or hindrance from either quarter. This was the state of affairs prevailing before the present dispute over the appellant’s right to own or possess the farmstead in question arose. The appellant went on further to claim that he first cleared the virgin forest over the particular area of his family land by his own industry unaided by the respondent with the intention of cultivating it into a farm for his exclusive use, and that he was lawfully in effective occupation of the disputed farmstead which the respondent had trespassed upon by permitting his agents, some “Fante men” to plough without his authority.
The respondent on her part, admitted sending someone to clear the farm in dispute, which she maintained was on a portion of her ancestral land which members of her family had occupied for many years without any let or hindrance from the appellant or his ancestors. It would seem from the evidence as a whole that during the period of occupation by the respondent or her ancestors no tribute or tolls were demanded from or paid by them as an act of acknowledgement of the appellant’s ancestral title or ownership to the entire land of which the dispute farmstead formed part.
Before resolving the preliminary issue of title or ownership to the whole land inhabited, as it were, by members of both the appellant’s and the respondent’s families, the trial magistrate inspected the locus in quo and found at his inspection that one Kobina Mensah a nephew to the appellant and also a son-in-law to the respondent, was in occupation of a portion of the land by the permission of the appellant, his uncle.
The court was not impressed by the respondent’s evidence as to how her ancestors became possessed of the land of which the farm in dispute formed part, and consequently dismissed her adverse claim to theappellants ownership. The trial local court further held that the respondent’s family’s long use and occupation of the land has always been with the permission of the appellant’s family and that the particular farmstead being claimed by the appellant was first cleared by himself. In my opinion, the first question which logically the learned judge of the appellate High Court had to consider was which of the two parties to the dispute had exclusive right to own or possess the farmstead in question. In other words, in view of the evidence regarding the use and occupation of portions of this land by members of both families can the respondent, notwithstanding her family’s being in occupation of portions of the land with the appellant’s permission, lay any valid claim to the disputed territory actually found to have been cleared by the appellant? Instead the learned judge applied wrong principles of customary law and erred in holding
[p.428] of [1967] GLR 424
that the long and continuous stay and use of portions of the entire land by the respondent and members of her family, even though admitted to be with the permission of the appellant, ought to extinguish the title of the true owner as found on the evidence by the trial local magistrate, and prevent the appellant as the true owner from recovering possession, and rather permit the respondent as a licensee or stranger-tenant to retain absolute or exclusive use of the unoccupied portions of the said land. With respect, I think the learned appellate High Court judge erred in coming to this conclusion and dismissing the appellant’s claim to the disputed farmstead.
The evidence given by the appellant’s third witness in this case as to how the respondent came to be on a portion of this land being claimed by the appellant, which piece of evidence the trial court accepted as true, illustrates the ancient practice adopted by natives in this country whereby occupation and use of another’s land was usually allowed under certain conditions. I would therefore quote the relevant portion of this evidence as, in my view, it contributes much to emphasise the importance of the principle of customary law with which this appeal was concerned. Kwamina Esiampong, the appellant’s third witness said among other things as follows:
“I remember over 50 years ago two elderly persons one by name Enimah and the other by name Essel Komfo, came with two elderly women one by name Adjou Blow but I have forgotten the name of the other, with two young persons to the elder of plaintiff by name Kwasi, with the plea that they were coming to staynwith him and would never return to their place ofdesertion. This plea was put before elders (stool elders) of Bisease and their verdict to accept them. This land in question was given to Enimah defendant’s elder by the plaintiff’s elder for settlement. Enimah later died after they had settled and the elderly woman too died. The village then had developed nicely.” This piece of evidence shows that the true owner of the land, Kwesi Kuntoh, the appellant’s ancestor, had permitted or licensed Enimah, the respondent’s ancestor and his followers to stay on and occupy the land by building on it or cultivating food or cash crops on it and to enjoy it as improved. Customary law regards the stranger Enimah as a licensee. This kind of tenure or holding which does not confer an interest or estate in the land to the licensee, is the result of a contract or an implied agreement. It has certain important characteristic features about it. These are: (1) The owner (or lessor as he is sometimes called) of the land must be willing to allow occupation and user of land or portion thereof or the whole of the land as the case may be, provided the licensee does not set up an adverse claim
[p.429] of [1967] GLR 424
to his title or right to possession. In other words, the user of the land must be of a nature not inconsistent with the rights of the true owner. If he does, the licensee is liable to forfeit his right to be on the lessor’s land and this conduct may justify re-entry by the owner or ejectment of the licensee. (2) Sometimes thenature of the grant of the occupational tenancy carries with it the obligation on the part of the licensee to pay tribute or tolls or provide some customary services as an act of acknowledgment of the lessor’s paramount or superior title to the land. In some cases where the products of the land on which tribute is levied are what may be called natural or food products, the question of the tribute is determined by agreement before the licensee goes on to the land; on the other hand, if it is production of cash crops like cocoa or timber, it is the usual practice to determine the quantum of the tribute by agreement after permission to occupy the land has been granted: see Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A. (3) The circumstances of the long occupation by the licensee are such that it is difficult to determine whether the customary tribute has been provided or demanded. The evidence led in the present case showed that during the period of occupation by the respondent’s ancestors no tribute or tolls were demanded or paid by them. It would seem members of both families, some of whom had intermarried, freely exercised their rights of user over unoccupied portions of the land without reference to anybody. Such user of the appellant’s ancestral land must have misled the respondent to believe that her ancestor must have acquired an estate or interest in the land which ought to entitle her to oust the appellant from the particular piece of farmstead in dispute. The respondent in this appeal seems to me to be in precisely the same situation in which the defendant in the old case of Kuma v. Kuma (1936) 5 W.A.C.A.4, P.C. found himself when he attempted to sell portions of the licensor’s farming land. In the said case the defendant and his ancestors had been in occupation of the land in dispute in the action for or about six generations without let or hindrance by the plaintiff or his ancestors; no tributes or tolls had been demanded or paid; it even was established that no drink had been given to owners of the land for permitting him and his people to farm on the land. When later the defendant attempted to sell outright portions of the plaintiff’s family land, an objection was strongly taken and that led to the action being instituted to determine the extent of the defendant’s rights over the plaintiff’s ancestral lands. Like the appellant in the present appeal, the plaintiff in the case cited, was only following the practice of his forebears in not exacting tribute or tolls from persons occupying the land with the family’s permission, and allowed them to remain on the land
[p.430] of [1967] GLR 424
subject to good behaviour. (4) Like the respondent and her ancestors in the present appeal, it is also an incidence of this holding that the limits or extent of any proprietary rights of the licensee be strictly defined or understood. The licensee only has a right to use the land equally with the grantors, and it is understood according to customary practice, that throughout the period of occupation the licensee at custom has a present right of possession and user over any portion of the grantor’s land where the right of the grantor is not ousted. In other words, title and right to enjoy the land of the latter remains unimpaired, and the granting of the licence or permission to occupy the grantor’s land without paying tribute or tolls is not to be regarded as a surrender by the owner or lessor of all claims or rights in the land. In this case, I think it was wrong for the respondent to look upon his ancestor’s long and unimpaired occupation of the appellant’s land as a surrender of the latter’s rights of user of portions not specifically allocated to him or members of his family. I think, therefore, that it was a false approach on the part of the learned appellate High Court judge to base legal conclusions on the assumption that where the respondent licensee has enjoyed for a number of years undisturbed user of another’s land, her right of possession or permission to remain and work on the land becomes incapable of disturbances as time goes on to the extent that she can even oust the real owner or dispossess him in respect of portions of the land not specifically granted to her or reduced into her effective occupation. The learned appellate judge did not consider the principle of customary law that defines a licensee’s right to occupy and use another’s land vis-à-vis the exercise of present rights of ownership still remaining in the grantor or owner.The basis of the concluding part of the learned appellate judge’s decision reads as follows:
“I agree with the submission of counsel for the [respondent] that in view of the findings made by the local magistrate and having regard to the evidence adduced in the case, the local magistrate was wrong in ordering the [respondent] to release the farm to the [appellant].”
After this the learned judge of the appellate High Court proceeded to set aside the judgment of the local magistrate delivered in favour of the appellant. The trial magistrate found the following facts proved:
(i) That the land on which the respondent and her ancestors have long been in occupation was the ancestral property of the appellant.
[p.431] of [1967] GLR 424
(ii) That the respondent’s ancestors’ long and uninterrupted occupation had always been with the permission of the appellant’s family.
(iii) That a portion of the said ancestral land of the appellant has been granted to members of the respondent’s son-in-law by the appellant.
(iv) That it was the appellant who first cleared the virgin forest over the area in dispute.” On these findings it is wrong to hold that the respondent’s right to remain and use portions of the appellant’s land was superior or cannot be held to have overridden the right of the owner over the disputed area which, as the evidence showed, had already been reduced into the effective occupation by the appellant. It is true the respondent may have enjoyed long and uninterrupted occupation, and she is in possession of portions of the appellant’s land by her own right, so far as it is a right, but it is a right which is given by customary law and her right to be on the land accrues to her and members of her family because of the permission originally granted to her ancestors to be there. Therefore the respondent as a licensee at custom has as much protection to be on the land and use the portions of it she is permitted to use, but she enjoys no more protection than the permission granted to her allows. This means that according to customary practice she enjoys occupational rights conferred by her licensee only in respect of portion of the land specially allocated to her for her exclusive use by herself and members of her family, or where the extent of the land on which she is permitted to stay and farm has not been determined or limited, she can exercise rights of occupation and possession on an area not specifically appropriated to use the lessor or members of his family, or where the evidence clearly shows that although a particular area has at one time been either cultivated or reduced into effective occupation by the owners or members of his family it has been abandoned. These are some of the important limitations to the licensee’s right of enjoyment or occupation in respect of the land upon which she is permitted to farm or occupy. Her permission to be on the grantor’s land is not an assurance whereby the owner conveys an estate or interest in the land to her. The respondent’s claim that she is entitled to dispossess the appellant of the disputed farmstead in this appeal because of the long uninterrupted occupation enjoyed by herself and her ancestors over the land of which the farmstead formed a part of a false one. She seeks to revive in these proceedings in an elegant form the rejected proposition that a licensee becomes in course of time an
[p.432] of [1967] GLR 424
absolute owner of the land to the extent of depriving the real owner of the right of user over unoccupied portions of the same land.In my opinion, it would be against custom to hold that the respondent, who is a licensee at custom could during the subsistence of the licence or permission exclude the appellant who is lessor or members of his family from using portions of their own land. If she could, then it shows that as against her landlord, the appellant, she holds an estate granted which cannot be extinguished or forfeited for all purposes. But if she cannot, it can only be because her landlord or lessor enjoys a present right of possession or user over portions not occupied by her. This in my opinion is the correct view of the position of the respondent according to customary law. If therefore the appellant, who enjoys a present right of user at the same time with the respondent over portions of land not specifically cleared or occupied by the respondent, claims possession of the specific area now in dispute, which it is admitted on the evidence he cleared before the respondent sent her agent to plough the said area, I do not see what defence could be open to her according to customary law and usage or practice. On the facts the respondents could not defend the appellant’s claim over the disputed farmstead because as a licensee she would not have a present and unbarred right to possession or user over this area in dispute; customary law and practice enjoins upon her to give way to the rightful owner’s better claim to the particular farmstead now in dispute because the evidence which was accepted showed that he first reduced that area into his occupation. That is the situation we have here. Had the respondent been able to establish by evidence that she first cultivated the area on which the disputed farmstead is located, or that the circumstances were such that although it was the appellant who first cleared the virgin forest with the intention of farming there but had sufficiently abandoned it, then her point that she was entitled to claim it as against the appellant might well have had weight. I do not think that, therefore, on the facts found by the local court magistrate, the respondent could succeed.
For my part, I am satisfied that the judgment delivered in favour of the respondent at the High Court, Cape Coast, appears to have been found on wrong application of the principles of customary law. The appellant had made a case, which was sufficient and proved by evidence, and the local court made findings which were supported by the evidence. In my opinion, therefore, the High Court judge was wrong in setting aside the judgment of the trial local court magistrate. The appeal must be allowed and the decision of the High Court, Cape Coast, set aside including the order as to costs.
[p.433] of [1967] GLR 424
The judgment of the Komenda Local Court delivered in favour of the appellant is accordingly restored. Costs awarded by the High Court, if paid, to be refunded. The appellant will have his costs of this appeal fixed at N¢140.41.
JUDGMENT OF OLLENNU J.A.
I agree.
JUDGMENT OF APALOO J.A
I also agree.
DECISION
Appeal allowed.
T.G.K.
