DIVISION: IN THE HIGH COURT, KUMASI
DATE: 22ND APRIL, 1963
BEFORE: APALOO J.
CASES REFERRED TO
(1) Oblee v. Armah (1958) 3 W.A.L.R. 484
(2) Korang v. Atta (1958) 3 W.A.L.R. 349
(3) Yirenkyi v. Akufo (1905) 1 Ren. 366
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Kumasi East Local Court delivered on the 26th February, 1962,
upholding the plaintiff’s claim to and possession of a piece of stool land.
COUNSEL
D. S. Effah for the appellants.
Boateng for Amankwaa for the respondent.
JUDGMENT OF APALOO J.
This is an appeal from the judgment of the Kumasi East Local Court which on the 26th February, 1962,
found for the plaintiff in his claim to title and possession of a piece or parcel of land situate on Obenimase
stool land at a place called Odenyinaa Ye De.
The evidence establishes that the plaintiff who is not a subject of the Obenimase stool got himself
possessed of a large area of Obenimase stool land without any grant from the stool. On this land he made
farms in a haphazard manner with the result that a considerable portion of the land which he appropriated
to himself was not farmed upon and remained virgin forest. The plaintiff was at one time encountered by
the co-defendant who is the present occupant of the Obenimase stool on the land. The plaintiff puts the
date of this encounter as the 29th February, 1960. At that time, the plaintiff says, he had been farming for
ten years. When the co-defendant met the plaintiff on the land, he did what was natural, that is took issue
with him for farming on his land without his authority and restrained him from further entry onto the land.
It seems that the Obenimase stool is a sub-stool of the Juansa paramount stool. Accordingly, the
co-defendant reported the plaintiff’s conduct to the occupant of the Juansa paramount stool. He is Nana
Kwame Afram. According to the plaintiff, the co-defendant complained that he (the plaintiff) had been
farming in scattered patches and thereby
[p.378] of [1963] 1 GLR 376
disabled other farmers from farming in the area. The plaintiff readily admitted his fault. The Juansahene
then ruled that the area of the plaintiff ‘s farm be inspected and such farms as he made be released to him
and thereafter he was to pay tribute. A team of inspectors was appointed and the evidence shows that this
team inspected the area and submitted a report to the Juansahene. On a subsequent date, the Juansahene
met the parties at a place called Bimma and a formal report of the inspection was made. It would seem
that one of the objects of this meeting was to agree on the tribute with the plaintiff. This was however put
off as the plaintiff said his father was not then present. The evidence shows that meantime, the
co-defendant permitted the first defendant to cultivate some of the virgin forest land in the area which the
plaintiff appropriated for himself. The first defendant did so by hired labour. The sequel to that is this
action in which the plaintiff sought a “declaration of title of ownership, possession and occupation” of the
land in dispute.
Although the plaintiff said he left a portion of the forest land in the middle of his land untilled, what he
complained about was that the defendants by trespass cultivated his fallow land. According to the writ,
the defendants “cultivated, burnt and cleared the same [i.e. fallow land] for farming purposes.”
The defendant’s case was that what was cultivated was forest land and they put into the witness-box Kojo
Kwaako and Yaw Asante both of whom said they were employed by the first defendant to cultivate and
did cultivate forest land. The local court magistrate conducted an inspection of the area and said the area was fallow land with many cocoa trees thereon. The plaintiff did not himself say that the area trespassed
upon contained cocoa trees. There was no intention to dispossess the plaintiff of his farm and it is unlikely
that the co-defendant would make a grant of an area containing the plaintiff’s cocoa trees to another
person. In any event, as the area was, to quote the plaintiff’s writ, “cultivated, burnt and cleared” before
he conducted what he called a comprehensive survey or inspection, I do not see how the magistrate could
have found anything but fallow land on his inspection. Furthermore, the local court magistrate without
any apparent justification, charged the co-defendant with improperly influencing a team of inspectors
whom the Juansahene had earlier sent onto the land, and alleged that he was both a complainant and a
judge in his own case. I can find no justification whatsoever for these strictures. In the circumstances, it is
difficult to regard him as a dispassionate enquirer after the truth. Accordingly, I am inclined to think that
what the defendants in fact did cultivate was forest land.
On the basis that the defendants cultivated fallow land on the authority of the co-defendant, the magistrate
stated the customary law as follows, “It is contrary against native customary procedure for the land owner
to dispossess of a subject’s fallow land or farmstead and to alienate such fallow land or farmstead to
another subject farmer other than a forest land.” He therefore concluded that the alienation to the
[p.379] of [1963] 1 GLR 376
defendants contravened customary law and was unlawful. Accordingly, he gave judgment for the plaintiff
for title, possession and occupation to the whole of the land claimed by him.
The defendants appeal against that judgment to this court on the sole ground that the judgment was
against the weight of evidence. It was submitted that the plaintiff was a stranger to the Obenimase stool
and was therefore not entitled to a declaration of title against the occupant of the Obenimase stool. It was
said the co-defendant was entitled to make grants of some of the land in dispute to the first defendant and
was not liable to the plaintiff who was a trespasser vis-a-vis that stool. It was submitted that the
magistrate was wrong in his view of the law and never really appreciated the issue. Accordingly, counsel
submitted that the judgment be reversed in the defendants’ favour. The sum total of counsel’s argument, if
I got him aright, was that on the available evidence, it is an infraction of customary law to grant the
plaintiff the reliefs he sought. On the argument which was actually presented, the ground of appeal that
the judgment was against the weight of evidence, was singularly inapt.
For the respondent, it was submitted that being a grandson of the Obenimase stool, he was entitled to farm
on that stool’s land as of right. It was said, if he was not so entitled, the settlement by the Juansahene gave
approval ex post facto to the plaintiff ‘s farming on the land. Although counsel himself deprecated the
method of farming haphazardly which the plaintiff confessed to, it was submitted that it was nevertheless
farming and that virgin forest aside, he was entitled to uninterrupted enjoyment of his cocoa farm.
The principle of customary law on which the magistrate based his judgment in favour of the plaintiff is
the oft repeated one that every subject has an inherent right to occupy a portion of any vacant stool land
and that so long as he remains in possession he cannot be dispossessed nor can the stool validly alienate
his usufructuary title without his consent. In the case of Oblee v. Armah1 it was said:
“By custom, subjects of a stool are not rationed in the amount of land they can occupy and farm. The only
limiting factors on the extent of stool land a subject can acquire by farming are his own capacity to farm and
the extent of land which other subjects have appropriated to their use by their labour.”
It is plain on the evidence in this case that the plaintiff is not a subject of the Obenimase stool. He did not
himself suggest he was such subject. The co-defendant said categorically in cross-examination, “You do
not hail from Obenimase.” The fact that the Juansahene ruled that he must pay tribute for the land on
which he farmed is further evidence of the fact that the plaintiff was a stranger to the Obenimase stool. Accordingly, unless he was able to show that the Obenimase stool stood by and allowed him to farm on the land and to spend money to improve it and that he
[p.380] of [1963] 1 GLR 376
did this in the bona fide belief that he was entitled to farm on Obenimase stool land, he was liable to be
ejected at the suit of the occupant of the Obenimase stool. In this case, as soon as the plaintiff’s
possession of the farm came to the knowledge of the occupant of the stool, he at once challenged and
restrained him from the land. This was followed by a timeous complaint to the Juanasa paramount stool.
In the meeting which followed, the plaintiff did not claim to have farmed with the knowledge of the stool.
He was regarded purely as a stranger who had without authority farmed on stool land. Accordingly, he
was asked to attorn tenant to the stool in respect of such portion of the land as he actually farmed upon,
by paying tribute. The plaintiff has not so attorned but defiantly brought an action against the grantees of
the stool for title and possession of the whole of the land he had, by trespass, appropriated to himself. In
my judgment, such action should have failed. The magistrate however thought otherwise and expressed as
his opinion that the plaintiff being a subject of the “traditional area” was entitled to cultivate forest land as
distinct from fallow land without permission. I am not aware of anything in customary law as the subject
of a “traditional area.” I know and know only of a subject of a stool. Traditional areas are the recent
creations of statute but have, as far as I am aware, no place as such in customary law. In my opinion, the
magistrate was wrong in his view of the customary law. I hold that this action was ill-conceived and
ought to have been dismissed and I will allow the appeal.
Counsel for the plaintiff submitted that the plaintiff as a grandson of the stool was entitled to farm without
permission on Obenimase stool land. With respect, a grandson of a stool seems to me to have as much
meaning as the subject of a traditional area. Neither concept is known to customary law. In support of
this, counsel referred to an answer given by the co-defendant in cross-examination thus, “Yes you can
farm in the area.” I cannot think that that isolated sentence taken out of its context is sufficient to confer
on the plaintiff the status of a subject of the Obenimase stool. The preponderance of the evidence is the
other way round and I am content to base my allowance of this appeal on the ground that the plaintiff was
a trespasser vis-a-vis the Obenimase stool and is therefore not entitled to the reliefs which he sought. But
if contrary to my view, the plaintiff was such subject, I would still have held, although it is entirely
strictly obiter, that he must fail in this action. As he himself admits, the large area of land which he
appropriated to himself was not required for his reasonable needs. He confessed to carrying on a system
of farming described by the coined expression as “farming at stake.” That has been explained as farming
haphazardly with the ulterior purposes of grabbing as much land as possible and preventing access to
other subjects of the stool from farming on the land. The plaintiff himself said, “I left a portion of the
forest land in the middle of the farm untilled. I planted cocoa in the farm in patches or isolated all over the
area to Anum River.” Other witnesses described this system of cultivation as “planting roughly.” And
roughly indeed it was.
[p.381] of [1963] 1 GLR 376
In my opinion, the rule of customary law which protects a subject’s usufructuary title even against the
grantor stool presupposes the fact that the subject carries on his husbandry bona fide and only on such
land as he can reasonably farm upon with due sense of recognition of the rights of other subjects.
Although there is no direct authority, the view I have expressed follows from the reasoning in such cases
as Oblee v. Armah2 and Korang v. Atta3 and in the omnibus expression of the customary law in Yirenkyi
v. Akufo4 that native custom generally consists in the performance of the reasonable in the special
circumstances of the case. It is plain beyond argument that the system of farming which the plaintiff was
proved to have indulged in, is entirely unreasonable and cannot, in my judgment, be the foundation of any rights to the land, let alone uncultivated land, in the plaintiff as against the stool or a grantee of the stool.
The plaintiff does not claim only the land on which he had actually farmed, but also the vacant land by
which in excess of his needs and out of greed he had appropriated to himself. In my opinion, on any view
of this case, the plaintiff’s action ought to have been dismissed.
Accordingly, the appeal is allowed. The judgment appealed from is set aside. For it, I substitute a
judgment dismissing the plaintiff’s claim. The defendants will have their costs in this court assessed at 35
guineas and in the local court to be taxed.
DECISION
Appeal allowed.
