DIVISION: IN THE HIGH COURT, CAPE COAST
DATE: 21ST JUNE, 1963
BEFORE: SOWAH J.
NATURE OF PROCEEDINGS
ACTION by the plaintiff claiming that a cocoa farm in occupation of the defendant was his family
property which was entrusted to the defendant to manage. The main question for determination was
whether the disputed farm was a family land per se or a clan or stool land.
COUNSEL
K. Ofosu-Asante for Sampson Baidoo for the plaintiff.
I.K. Abban for R.J. Hayfron-Benjamin for the defendant.
JUDGMENT OF SOWAH J.
This action is one of many actions now pending before this court, sparked off by the enactment of the
Administration of Lands Act, 19621 and the Rents (Stabilization) Act, 19622 as amended by the Rents
(Stabilization) (Amendment) Act, 1963.3
The plaintiff claims that the defendant is a person entrusted with the management of an old cocoa farm
situate and lying at a place called Kwaim. The defendant denies that he is a manager of any farm
belonging to the plaintiff and claims that the land occupied by him was a grant to his immediate
predecessor on a customary tenancy basis known as abusa tenancy and further that his landlord is the
occupant of the stool of Nkuntanasi, who is also the head of the Anona clan sometimes referred to as the
Anona family. He further claims the subject-matter of the dispute as stool property within the meaning of
the Administration of Lands Act, 1962.
I will say at once that there is no evidence before me that either the defendant or his predecessor was
made manager of the farm in dispute as pleaded in his statement of claim. The evidence of both the
plaintiff and Kojo Nsiah shows that the land was given to Kobina Obo to make a cocoa farm thereon
though they also state that there were cocoa trees on the land before it was given to Obo. The defendant,
of course, maintains that the cocoa on the land was made by his predecessor Kobina Obo. I shall later deal
with this aspect of the matter. I am however satisfied that the defendant or his predecessor was not at any
time entrusted with the management of the cocoa farm in dispute.
To my mind the central issue in this action is whether or not the land the subject-matter of this suit is clan
or stool land within the meaning of the Administration of Stool Lands Act. By section 31 of the Act, stool
land is defined as follows:
“Stool land” includes land controlled by any person for the benefit of the subjects or members of a Stool,
clan, company or community, as the case may be and all land in the Upper and Northern Regions other than
land vested in the President and accordingly ‘Stool’ means the person exercising such control.”
Counsel for the defendant has submitted that the Akan word “ebusua” meaning family is also the word for
clan. In view of this, counsel submits that there is a certain amount of laxity in the translation of the word
“ebusua” into English.
[p.79] of [1963] 2 GLR 77
It does appear that when the word family is used, it does sometimes mean a family per se and at other times a clan. It is therefore necessary in this action to distinguish clearly between the words clan and family. The ordinary family property is not caught by the Act, except that family property may also be affected by paragraphs (iii) and (v) of section 1 of the Rents (Stabilization) (Amendment) Act, 1963. Mr. Benjamin has submitted that an ordinary family within the Akan context comprises all those persons
lineally descending from one common female ancestress. In support of this submission, counsel cited
Sarbah on Fanti Customary laws (2nd ed.) pages 33-35 and Ollennu on Principles of Customary Land
Law in Ghana, p. 140.
Counsel further submitted that another test whether a group of persons belongs to one family is whether
or not the group has a common family residence. The other incidents of family relationship are not
peculiar to a family per se but could also be incidents of clan relationship; such matters as contribution
towards funeral expenses and a common burial ground.
On the other hand Rattray in his Ashanti Law and Constitution (2nd Impression) at p. 63 defines a clan as
follows:
“A clan is an exogamous division of a tribe, all the clansmen or members of which are held to be related to
one another and bound together by the common tie or clanship.’ This tie in Ashanti is, for all ordinary
purposes, belief in a common descent from some ancestress; reaching back still farther, it was belief in a
common descent from an ancestress who was descended from some animal.”
Whatever may have been the origin of the clan system, it is now found amongst the Fanti tribes; within
each clan in any Fanti town or village there can and often do exist several families unrelated directly by
blood ties, but who nevertheless, are members of a clan.
With these principles in view, it is necessary to examine the evidence and to find out into which of the
two categories the plaintiff’s family falls, that is to say, whether it is a family per se or that the term
Anona family connotes in fact the Anona clan. The evidence of the plaintiff is that his family acquired the
lands of Nkuntanasi by settlement. He says that an ancestress of the family first settled on this land. He
goes on:
“I do not know how Ansah came to occupy the land. During the time of Ansah there were other families
occupying the land.”
On this issue the plaintiff’s witness, J. D. Kurankyi, one of the elders of the family and an elder of the
stool of Nkuntanasi had this to say:
“The traditional history is that the Anona family of Nkuntanasi dropped or arrived from the skies. This
happened hundreds of years ago. The story is that a woman was the leader of the persons who arrived from
the skies. The woman arrived with people. I do not know the number. The Anona family of today are the
descendants of those who arrived from the skies.”
Concerning the history of his family, Kojo Nsiah, the head of the Anona family of Nkuntanasi informs the
court that before the Omanhene of
[p.80] of [1963] 2 GLR 77
Asikuma and his subjects arrived in their present home, the Anona family of Nkuntanasi was already
established and that as a result of conquest they became subjects of the stool of Asikuma. Under
cross-examination he said:
Before the immigration of the Omanhene and his people to Asikuma area, Nkuntanasi was already in
existence and we had our stool, we had our Asafo Companies and their heads. At the time the town was
made exclusively from members of the Anona family.”
It is fair to state that in re-examination he modified this piece of evidence and said:
“When we first settled on the land there were no Asafo companies. The Asafo company was created only
twenty years ago. There is only one company in Nkuntanasi.”
I have been unable to find the approximate date or period of history when the Fantis broke away from the
main group of Akans, that is the Ashantis, and moved towards the south where they at present have their
habitation. Recorded history however shows that the Fantis were amongst the main stream of Akan
immigrants who moved from Northern Ashanti now Techiman towards the coast.
With present day knowledge about the universe and outer space, it is difficult to accept the traditional
evidence before me that the plaintiff’s ancestress and her people dropped from the skies, since the advent
of spaceship into the modern world is within recent memory.
I consider it more probable that their ancestors were amongst the group of Fantis which broke away from
the Ashantis, but that they got to their present habitation before the arrival of the ancestors of the
Omanhene of Asikuma and his people. If the evidence of the head of the Anona family is accepted then it
appears that even in the ancient and dim past the Anona family of Nkuntanasi was sufficiently large to
warrant an invasion upon them by the then Omanhene of Asikuma and his subjects.
From the evidence before me, I am of the view that the Anona family of Nkuntanasi are not descendants
from one common ancestress but from a group of persons who migrated and settled in the village of
Nkuntanasi in the very ancient past. They might have been at the dawn of recorded history persons related
by blood but the fact remains that all communities wherever they be, developed from very minute
beginnings.
Counsel for the plaintiff Mr. Sampson Baidoo has urgently pressed upon me that exhibit A clearly shows
that the lands at Nkuntanasi have always been family lands and not stool lands.
It is correct that in exhibit A, Chief Arku took action as head of the Anona family of Nkuntanasi, but a
close study of the exhibit A shows that even in Chief Arku’s time there was no distinction being made
between the chief of Nkuntanasi and the head of the family or clan. From exhibit A it is quite clear that
the chief of Nkuntanasi was also the head of the family or clan.
[p.81] of [1963] 2 GLR 77
On this point, there has been the modicum of truth coming from the plaintiff. All the witnesses for the
plaintiff tried to show that in Chief Arku’s time there was a head of family who was distinct and separate
from the chief, but exhibit A gives the lie to the story. Indeed, at page 59 in exhibit A Chief Arku himself
says that he was a successor to Yaw Gyan. To quote Chief Arku, “I was then put as a successor to my
ancestor Yaw Gyan as chief of Nkuntanasi.” It appears also from the same exhibit A that Yaw Gyan
himself occupied the dual position of the head of the family and chief of Nkuntanasi, vide page 97 of
exhibit A.
The position as it appears to me is that until a few years ago the affairs of the Nkuntanasi stool were
inextricably woven up with the affairs of the Anona family. The evidence of the head of family Kojo
Nsiah is that their common family residence is the Ahenfie and it is at this place that the family meets to
transact business.
The plaintiff also says that all the heads or principal members of the family are also principal members or
councillors of the stool and that the stool is kept in the family house. It appears to me that a stranger
dealing with this family is most likely to have the impression that he is dealing with the stool, more so if
the head of the family enters into agreement and merely signs himself as chief of Nkuntanasi.
In the circumstances I am of the view that when the expression Anona family of Nkuntanasi is used, it is
meant to include all the clansmen inhabiting Nkuntanasi who were the descendants of the first settlers in Nkuntanasi. Consequently the Anona family lands are stool lands within the meaning of the Administration of Stool Lands Act, 1962.
The defendant has further pleaded that the plaintiff is not his landlord but the stool of Nkuntanasi is his
landlord. The defendant says that his predecessor entered into a tenancy agreement with Chief Arku who
was then the Ohene of Nkuntanasi and that he understood the chief to be acting on behalf of himself and
the stool of Nkuntanasi. Both exhibits 2 and D support the defendant’s contention, but the plaintiff states
that the Nkuntanasi lands have been shared and that the portion occupied by the defendant is a part of the
portion allotted to him. It is therefore necessary to examine the evidence on this aspect and if there has been such a division of the
property, to find out further, if notice of division or assignment has been given to the defendant. In
examination-in-chief the plaintiff said as follows:
“After the litigation in exhibit A, Kofi Arku died and Kojo Nsiah succeeded him. Nsiah then decided that the
lands be shared amongst members of the family. As a result Kwaim lands were given to me.”
In cross-examination the plaintiff said as follows:
“I have said that after the litigation in exhibit A the land was divided or shared amongst certain members.
The land was shared according to houses. I am the head of my house. Kweku Nkum was the head of his own
house. J.D. Kurankyi was the head of his own house. Kojo Nsiah also had a share of the land, which was
divided. There are five houses.”
[p.82] of [1963] 2 GLR 77
Still under cross-examination, the plaintiff states further:
“After the litigation, we shared the land and it was after that that Kobina Obo came to occupy the land. The
land was shared and my portion given to me before Kobina Obo came and occupied the land.”
When cross-examined as to the reason why Kobina Obo should enter into agreement with Chief Arku,
this is what the plaintiff said:
“When Kobina Obo came, the land had already been shared and I took him to the Ahenfie; the Ohene then
called all of us and the agreement was entered into.”
When crossed-examined as to the proper person to enter into agreement with strangers who come to
occupy the land, he said:
“In all cases the strangers were taken to the Ahenfie for the chief to make the necessary arrangements or
agreements.”
Kojo Nsiah, the present head of family’s version on this issue was as follows:
“All the tenants were given their lands before the distribution. The distribution would be about six years ago.
I do not know time. I distributed the land after the litigation between myself and the Gomoa farmers. It was I
who distributed the land and not Chief Arku. Up to the time of distribution the whole land was under me.”
Kojo Tsia also gave evidence concerning the distribution of the land, but failed to tell the court when the
alleged distribution took place.
There is sharp conflict between the evidence of the plaintiff from whose evidence it appears that the
distribution, if true, took place over 20 years ago and the evidence of the head of family who maintains
that the distribution took place six years ago.
In view of the nature of the conflict, I am not disposed to accept the evidence that the land has been
distributed as alleged and I hold that there has been no such distribution. If indeed there has been any
distribution, why was not the defendant informed about it? Why was he not given notice of his new landlord? I am more inclined to accept the theory put forward by counsel for the defence that the alleged
distribution was being advanced to defeat the purpose of the Administration of Stool Lands Act, 1962.
Another subsidiary issue raised was whether the land given to plaintiff was land on which the plaintiff
had a cocoa farm before the grant to the defendant.
The defendant’s case was that his predecessor was a tenant of one Yaw Kobill, an action was brought
against Yaw Kobill by the then head of plaintiff’s family and occupant of the stool, Chief Arku. Yaw
Kobill lost the action. The defendant says that his predecessor saw Chief Arku and attorned tenant to him.
In support of this evidence, he produced the original agreement between his predecessor and Yaw Kobill.
[p.83] of [1963] 2 GLR 77
The plaintiff of course challenges the story of the defendant. It is however significant that during
cross-examination of Kojo Nsiah, the head of family, he apparently off his guard said as follows:
“Obo was from Gomoa. He originally acquired the land from Yaw Kobill and we subsequently drove him
from the land.”
As if Kojo Nsiah had regained his posture, he immediately said as follows:
“I now say that it is not correct that Obo was ever on this land before the litigation. It was after the litigation
when we had won the case that he came and arranged with Arku who gave him this piece of land on which
was planted already cocoa.”
Exhibit D which is the tenancy agreement between Kobina Obo and Chief Arku is of some help in this
matter. A portion of the agreement reads as follows:
“The half share will be given when the cocoa trees bear fruits. Should in case of failure to be planted the
cocoa trees, the land is for the owner. And the old farm ploughed by myself and give half share to Chief
Arku.”
“Myself” in the context of exhibit D referred to Kobina Obo.
The position as it appears to me is that the old farm was the farm ploughed by the defendant’s predecessor
when he was a tenant of Yaw Kobill and that after the litigation the defendant’s predecessor entered into
fresh tenancy agreement with Chief Arku, thus attorning tenant to him. I do not accept the evidence that
there was already cocoa on the land planted either by the plaintiff’s predecessor or by another person.
In the knowledge that this judgment is not the final to this action I have endeavoured to resolve all the
issues posed in this case; there is little doubt that the purpose of Administration of Stool Lands Act and
Rents (Stabilization) Act as amended is to do away with absentee landlordism and the abusa and abunu
systems and to revolutionize the tenure of land holding as far as farm tenancies caught by the Acts are
concerned to enable the farmer to reap the full reward of his labours. I consider it the duty of this court to
interpret the Act as it stands. It is not part of the court’s duties to help in the evasion of the consequences
of the Act.
Accordingly I hold that this piece of land is stool land within the meaning of the Administration of Lands
Act, 1962. I further hold that the plaintiff has no locus standi, he not being the landlord of the defendant.
Consequently, the plaintiff is not entitled to any of the reliefs sought by him and I dismiss the claim.
Judgment is entered for the defendant with 60 guineas costs. The receiver and manager is hereby
discharged and ordered to account for all moneys paid into court and the same to be paid over to the
defendant.
DECISION
Judgment for the defendant.
K. T.
