DIVISION: IN THE HIGH COURT, KUMASI
DATE: 14TH OCTOBER, 1963
BEFORE: APALOO J.
NATURE OF PROCEEDINGS
ACTION for a declaration of title to land, damages for trespass and an order of perpetual injunction.
COUNSEL
Jantuah, for the defendants.
Plaintiff in person.
JUDGMENT OF APALOO J.
In this action, the plaintiff claims a declaration of title to a cocoa farm said to be situate at a place called
Nyebiammoawo on Keniago stool land, damages for trespass and an order of perpetual injunction
restraining the defendants from dealing with the said farm.
The plaintiff, who I should judge to be in his late sixties is a native of Domi, Keniago. He is educated and
between 1925-1950 lived away from home. He must have been employed in some sort of clerical job
either at Bekwai or Kumasi. The Abotendomhene of Keniago, Kwame Yamoah, said he returned home
with a deficit and settled down to making farms. I am not able from the evidence to form anything like a
reliable picture of Keniago. About one thing, however, I am certain, namely, educated persons are a
rarity. In fact Nana Yamoah said, “We have no clerks in Keniago.” I think that is a little exaggerated but
it is plain to my mind that educated persons are extremely hard to come by in that town.
The plaintiff is somehow connected with the Keniago stool. I prefer the evidence that he is a royal of the
paramount Keniago stool not merely as the defence suggested, the Krontihene stool. Nana Owusu Afriyie
the present Keniagohene admitted that the plaintiff at one time contested for the stool and lost. He would
not have done so if he were not a royal of that stool and considered himself eligible to occupy it. The
plaintiff says that he was employed as a stool clerk by Nana Yaw Barimah in 1950 and that he worked in
this capacity without remuneration for a period of nine years. He says the chief said as he was one of the
royals of the stool, he should sacrifice for it. In about 1959, Nana Barimah took ill and in order to find
time to receive medical treatment, he abdicated. He was succeeded on the stool by one Kofi Agyei whose
stool name is Nana Kwame Yamoah Ababio. The evidence shows that at an unspecified date in 1959, the
stool elders met to render an account of the stool properties and formally hand them over to the new chief.
According to the plaintiff, at this meeting, he told the elders that he had served the stool for nine years
without remuneration and that there was a stool cocoa farm which had almost become a farmstead. He
requested that a gift of the farm be made to him in recognition of his devoted services to the stool. The
plaintiff testified that the elders unanimously agreed and he acknowledged the gift by the payment of a
customary aseda. Thereafter the plaintiff said, he entered into
[p.346] of [1963] 2 GLR 344
possession and plucked the cocoa for two seasons without interruption. In December 1960, Nana Yamoah
Ababio was detained under the Preventive Detention Act.1 He was succeeded on the stool by the first
defendant who was installed on the 1st April, 1961. The latter interfered with the plaintiff’s rights to the
farm and thus gave rise to this action.
The defendants for their part say that no such gift as the plaintiff alleges was ever made of the farm in
dispute to the plaintiff. Although they admitted that the plaintiff was at one time in possession of the
farm, they say he was merely a caretaker of it and took charge of the farm as caretaker at his own request
and with Nana Yaw Barimah’s consent. The defendants say further that the plaintiff rendered accounts to
Nana Yaw Barimah and when Nana Yamoah Ababio came on the stool, the farm in dispute was one of
the farms handed to him as stool property. The farm retained its public character when the first defendant
came on the stool and was one of the farms handed to him as stool property. The defendants tendered in
evidence an inventory of the stool property bearing the date the 30th September, 1961. At page one of it
appears “four cocoa farms at Domi-Keniago.” The defendants also deny that the plaintiff was at any time
employed as a stool clerk and say if the stool needed the services of a literate person, they got one at
random. As to whether or not the plaintiff was employed as a clerk by the stool, I do not feel any doubt that I must accept the plaintiff’s version. It seems to me to accord wholly with the probabilities of the case. One knows from experience that often a need arises for a stool to require the services of an educated person and often stools employ such persons who are generally known as stool clerks. For a long time prior to 1950, the Keniago stool, perhaps through want of funds, employed no clerk. In that year, the plaintiff
arrived-an elderly and experienced man who has come to settle at home for good. He was himself a royal.
It seems to me to be only natural that he should be asked to perform the services which the stool needed
and which either from want of means or unavailability of suitable persons, the stool was unable to afford.
Indeed a very pressing need arose for the services of a clerk when the Keniago stool found itself in
litigation with the Nkawie stool. In those circumstances, the plaintiff would have been a perfect godsend.
Upon his return the plaintiff did not keep to himself and lead the life of anything like a recluse. He
actively identified himself with the welfare of his state and was soon found suitable enough to be elected
to the local council. I am satisfied the plaintiff was employed as a stool clerk of the Keniago stool and
served the stool without remuneration for nine years. I think the reason why the defendants seek to deny it
is because they knew he had nothing for his services and his evidence makes it probable that he had this
farm gifted him in recognition of those services.
[p.347] of [1963] 2 GLR 344
It is not in dispute that the plaintiff was at one time in possession of this farm. While the plaintiff says he
assumed possession of the farm in pursuance of the gift, the defendants say he was in possession as
caretaker. Kwame Yamoah said the plaintiff was given this farm to look after six years ago. I find this
story difficult to credit. Six years ago, the plaintiff would have been in his early sixties. He was for all
practical purposes the only scholar of Keniago and was himself a royal. I cannot believe that the stool
elders would want to entrust a stool farm to the care of a man as old as sixty especially, as Yamoah
asserts, the plaintiff physically worked on the farm. Much cannot be got from a man of his age. It seems
to me still less likely that the Keniagohene would pick on the only scholar of the town for a job hardly
more honourable than that of a farm labourer. When I recall to mind the fact that the plaintiff is himself a
royal, and with luck may one day ascend the Keniago stool, I feel satisfied that I must reject the story that
the farm in dispute was given to him merely as a caretaker.
The plaintiff said when the gift was made to him, he acknowledged it by paying aseda. Yaw Kubi, a very
elderly man who was a boy during the Yaa Asantewa War and who from looks is much past seventy, said
he was present when the gift was made and took part in the drink which the plaintiff gave as aseda. When
a man of this venerable age gives evidence as to what he saw, I should have very good reason before I
reject it. I certainly have none in this case. I think his evidence, like that of the plaintiff, is the truth.
The plaintiff has of course not been able to substantiate his case by any written record of the gift. That
fact gives me no trouble. It is not reasonable to expect one where the donee is the only literate person in
town. The gift was made in public before witnesses and was similarly accepted. That satisfies the
requirement of customary law and I am satisfied that good title to the farm passed to the plaintiff in 1959.
The present Keniagohene was not present when this gift was made, and relies on his elders to dispute it.
Two of the elders who the plaintiff said were present when the gift was made gave evidence for the
defence. They are Kwame Yamoah, the Abontendomhene, and Kwame Donkor the chief linguist. Both
denied that a gift was made. I reject their evidence. Although it is not for me to ascribe motives, I cannot
lose sight of the fact that they both collectively had cause to be aggrieved about the plaintiff. When all the
elders elected and installed the first defendant on the Keniago stool, the plaintiff was bold enough to put
up a rival candidate who eventually lost. The elders were naturally dissatisfied with the plaintiff’s conduct
especially as he was the recipient of the stool’s bounty. I think that is the reason why those two elders
denied the gift of the farm which was made to the plaintiff in their presence. The view which I have just expressed is fortified by the first defendant’s undisputed conduct. Although on his own showing, the plaintiff was lawfully in possession of the farm as
[p.348] of [1963] 2 GLR 344
the stool’s caretaker, the Keniagohene did not adopt any method approaching anything like
constitutionality in removing him. He merely went to the farm with a number of labourers and removed
the cocoa which was then drying on a mat and when the plaintiff complained, he gave him in custody to
the Antoakrom police on a charge of threatening. When pressed in cross-examination, the Keniagohene
said, “I admit I was not in good terms with you, that is why I took the cocoa farm from you. I just
removed you as caretaker.” Accordingly, as I said, I am satisfied that a valid customary gift of this farm
was made to the plaintiff by the Keniago stool in 1959. The plaintiff having duly accepted it by the
payment of aseda and entering into possession, I hold that the gift is irrevocable.
I find on the undisputed evidence that the first defendant by himself and his hirelings trespassed into the
farm in the cocoa seasons in 1961 and 1962 and plucked and carried away ripe cocoa beans from the
plaintiff’s cocoa farm. In my judgment, all the defendants are liable to the plaintiff for his undoubted
trespass. The evidence shows that the average yearly yield of the farm varies between ten to fifteen loads.
In all the circumstances, I adjudge that the defendants shall pay to the plaintiff £G75 damages for
trespass. The plaintiff is also entitled to restrain these acts of trespass in the future and ought to get the
order of perpetual injunction which he seeks.
In the result, I make as prayed, a declaration that the plaintiff is the owner of the cocoa farm fully
described in the writ. I award, the plaintiff against the defendants jointly and severally, £G75 damages for
trespass. There will also be an order of perpetual injunction restraining the defendants, their servants or
agents from trespassing into the said farm or in any manner whatsoever interfering with the plaintiff’s
peaceful enjoyment of that farm.
The defendants are ordered to pay the costs of this action which I assess at £G35.
DECISION
Judgment for the plaintiff.
K.T.
