DIVISION: IN THE SUPREME COURT
DATE: 3RD JUNE, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Bruce-Lyle J. delivered in the High Court, Sunyani, reversing the decision
of the Brong-Ahafo Local Court, Goaso, which upheld the plaintiff’s claim to possession of the disputed
land in the suit. The facts are fully set out in the judgment of Akufo-Addo J.S.C.
COUNSEL
G. Koranteng-Addow for the plaintiff.
Buachi for the defendant.
JUDGMENT OF AKUFO-ADDO J.S.C.
This appeal by the plaintiff is from the judgment of Bruce-Lyle J. sitting in the High Court, Sunyani, on
appeal from the Brong-Ahafo Local Court, Goaso. The plaintiff’s claim was for the possession of a piece
of forest land which, he alleged, he purchased from the Sankori stool, and on which the defendant had
trespassed. The defendant who is not a native of Sankori by birth went to live at Sankori some years ago,
and was granted permission by the Sankori stool to farm on Sankori stool land. According to the evidence
he was permitted to cultivate just enough land to be covered by two farming operations in two farming
season (“do pen mmienu” as it is called in Twi). Some time later it was discovered that in addition to the
cultivation made and covering two seasonal operations the defendant had extended his farming activities
somewhat spasmodically over a wider area by planting cocoa and other crops which were dotted here and
there over the wider area without any semblance of systematic cultivation, no doubt, with the object of
claiming possessory rights over that area. When this state of affairs was discovered by the Odikro of
Sankori, the defendant was immediately made aware of his wrongful activities and, upon apologising for
his misdeeds, he was requested by the elders of the stool to pay the sum of £G300 as a consideration for
his retaining the area over which he had offended if he desired to
[p.3] of [1963] 2 GLR 1
retain it. This sum was at the request of the defendant reduced to £G200 but the defendant expressed his
inability to pay and was therefore warned off the area of land concerned. Subsequently the stool of
Sankori sold the said area of land to the plaintiff, but before then the defendant had become by
naturalisation according to customary law a “citizen” of Sankori. The plaintiff entered upon the land upon
the completion of the purchase and a few weeks later he saw the defendant working on the land, hence
this action. The plaintiff’s allegation of the purchase from the Sankori stool was confirmed by the Odikro of Sankori
who gave an account of the incidents which culminated in the offer made by the elders of Sankori to the
defendant to pay £G300 and retain the area over which he had unlawfully spread his farming operations
as already described. The Odikro stated in his evidence that as the defendant could not, or would not, pay
the sum required the defendant, in the recorded words of the Odikro, “waived his interest in the area in
dispute.” The Odikro then said that the land was subsequently sold to the plaintiff, and that some time
after the sale to the plaintiff the defendant turned up to say that he was now prepared to pay the sum
required in order to keep the land. He was told it was too late as the land had been sold.
The defendant did not either by cross-examination or in his evidence dispute the account given by the
Odikro of the incidents that led to the sale of the land to the plaintiff. His case was that the land in dispute
was part of the land which was originally granted him by the Sankori stool, and this claim was denied by
the Odikro. The local court magistrate had no difficulty in preferring the story told by the Odikro to that told by the
defendant, and he accordingly decided in favour of the plaintiff and gave judgment for him upon his
claim. On appeal to the High Court, Sunyani, the point, among others not material to this appeal, was raised that
since the defendant became by naturalisation a subject of the Sankori stool he was entitled to occupy
without permission any Sankori stool land that was vacant, that he was in such occupation as a subject at
the time the land was purported to have been sold to the plaintiff and that, therefore, the sale was invalid
as against the possessory rights acquired by the defendant as a subject. The learned judge of the High
Court accepted this contention in the following words of his judgment:
“In this case it is plain on record by the evidence of the plaintiff and his witnesses that the area was first
granted to the defendant when he was a stranger but failed to pay the required amount demanded of him by
the stool. The land was not subsequently granted to another person before the defendant acquired the status of a
subject. As a subject he continued to be in possession over two years before the stool granted it to the
plaintiff.
[p.4] of [1963] 2 GLR 1
If this area had been granted to the plaintiff prior to the defendant becoming a subject the position would
have been different. When he became a subject he occupied stool land as he was entitled to do without prior
permission from the stool. The second witness called on behalf of the plaintiff said that as a subject the land
should have been demarcated to him before taking possession. I am afraid this is the wrong pronouncement
of the customary law as is known to the courts of the country. A subject can occupy stool land without prior
permission and demarcation by the stool. He can plough any extent of unoccupied stool land without prior
permission and demarcation by the stool. The defendant was in possession of the land as a subject of the
stool before it was granted to the plaintiff.
With this background of the facts and the law the trial court erred in holding that because the defendant was
deemed by the stool to have abandoned this land while a subject therefore the abandonment operated against
him even after occupying the same land, which was unoccupied, as a subject.”
On the facts there is no evidence on record either of the plaintiff or of his witnesses that the area in
dispute was granted to the defendant. That was the defendant’s allegation which was discredited. A
concession, of which he did not avail himself, was made to the defendant to pay a sum of money and
retain the disputed Land on which he was found to have trespassed. That surely did not constitute a grant
such as would entitle him to be in lawful possession of the land in dispute. There is no evidence that after
he had declined the offer made to him by the elders of the stool the defendant went back to the land. If he
did at all, such entry on the land would in the circumstances be trespass, and he could not by later
becoming a subject of the stool relate back his newly acquired right to cultivate freely stool land to his
wrongful entry on the land and claim to be lawfully exercising his rights as a subject.
The principle of customary law which says that a subject is free to cultivate any extent of stool land does
not confer on a subject an unlimited licence for indiscriminate cultivation, and a subject usually obtains
the formal permission of the stool for the purpose. Permission is never refused but it is necessary in order
to enable the stool to keep a check on cultivated areas. In days gone by when land was plentiful and
persons seeking to cultivate it were few, a subject would be shown a site or would choose his own site with the approval of the stool, and he could then extend his cultivation to wherever “his cutlass could carry him” as the saying goes. In modern times, however, it has become necessary to ensure a more equitable distribution of available land for cultivation and the practice has been for limited areas to bedemarcated for subjects of the stool.
In any case, the evidence of the Odikro and Peter Kojo Kruh, the Chairman of the Sankori Town
Development Committee, was that the custom at Sankori was that a specific area of land was always
demarcated for a subject wishing to cultivate stool land. That evidence of the Sankori custom was never
challenged, and I see no reason why it should not be
[p.5] of [1963] 2 GLR 1
accepted at least as a local variation of the general custom propounded by the learned judge of the court
below, assuming the learned judge’s proposition is right, which is not.
What is more, it was not the case of the defendant in the court below that he had occupied the land in the
exercise of his right as a subject, and the learned judge was obviously wrong in reversing the decision of
the local court magistrate upon the reasons stated by him, and on this ground alone I would allow the
appeal. Mr. Koranteng-Addow, counsel for the appellant, however raised another ground relating to procedure by
which he submitted that the appeal from the local court was not properly before the High Court. He
submitted that the purported lodging of the appeal in the High Court was not in conformance with the
requirements of regulation 171 of the Local Courts Procedure Regulations, 1959, which provides as
follows:
“Any person wishing to appeal from an order, decision or judgment of a Local Court shall file in such Court
and lodge in the Appeal Court a Notice of Intention to Appeal and such notice shall be filed and lodged
within one month of the date of the order, decision or judgment appealed against.”
Counsel submitted that a copy of the notice of intention to appeal was not lodged in the High Court
within one month of the date of the judgment (i.e. the 5th September, 1960) as required by the said
regulation 171. This is not disputed.
It is even doubtful whether the defendant (would-be appellant in the High Court) filed a notice of
intention to appeal in the local court at all.
In an affidavit sworn to by the defendant on the 21st November, 1960, in support of an application he was
making to the High Court for “special leave to appeal out of time” he deposed that he was prevented by
illness from appealing against the judgment of the local court. He subsequently amended his application
to one for “extension of time within which to fulfil the remaining conditions of appeal herein,” and in a
further affidavit sworn by him on the 24th May, 1961, he alleged that he filed a notice of intention to
appeal in the local court on the 9th September, 1960, and that an enquiry by his solicitor revealed that the
said notice of intention to appeal together with a certified copy of the judgment of the local court was
forwarded by the registrar of the local court to the High Court on the 12th September, 1960, in
accordance with the provisions of regulation 176 (1) of the Local Courts Procedure Regulations, 1959,
and was received by the High Court on the 18th November, 1960.
An examination of the official court docket shows the presence therein of a notice of intention to appeal
without any indication as to how it got into the docket. It has no copy of the judgment of the local court
attached to it and there was no covering letter from the registrar of the local court.
[p.6] of [1963] 2 GLR 1
It bore no filing mark of the High Court beyond a faint inscription in pencil of the date “18th November,
1960,” being apparently the date of the receipt by the High Court of the said notice.
Apart altogether from the very suspicious circumstances surrounding the unaccountable presence in the
docket of a notice of intention to appeal, the fact remains that no notice was lodged in the High Court
within a month of the date of judgment of the local court which was the 9th September, 1960.
Counsel for the defendant-respondent submitted that the delay in the High Court receiving the notice from
the local court was not the fault of the defendant and the consequences of that delay should therefore not
be visited on him. It should be appreciated that it was perhaps in contemplation of such a default on the
part of registrars of local courts that the legislature in its wisdom provided as an insurance against such a
default for the lodging in the High Court of a copy of the notice by a would-be appellant. That provision
is mandatory and constitutes a condition precedent to the propriety of an appeal in the High Court.
A right of appeal is always conferred by statute, and when the statute conferring the right lays down
conditions precedent to the vesting of that right in a litigant it is essential that those conditions must be
strictly performed, otherwise the right does not become vested.
Since the defendant failed to lodge in the High Court within a month of the judgment of the local court a
copy of the notice of intention to appeal, the defendant’s appeal was not properly before the High Court
which should not have entertained it.
It follows that the judgment of the High Court cannot stand, and I would therefore allow the appeal, set
aside the judgment of the High Court and restore the judgment of the local Court.
JUDGMENT OF OLLENNU J.S.C
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal allowed.
K.T.
