Division: IN THE HIGH COURT, ACCRA
Date: 14 OCTOBER 1964
Before: HAYFRON-BENJAMIN J
JUDGMENT OF HAYFRON-BENJAMIN J
The plaintiff by his writ of summons issued on 9 December 1960 claims an order of this court declaring his title to a house at Sagyimase in the Akim Abuakwa Traditional Area, an order for recovery of possession of the said house, £G300 damages for trespass, an injunction to restrain the defendants, and compensation for mesne profits. The land on which the said house is built is bounded on the north by Opanin Kwasi Tutu’s house, on the south by Opanin Kofi Mabreh’s house, on the east by Opanin Yaw Akyiano’s house, and on the west by Opanin Kwame Yeboah’s house.
The plaintiff’s statement of claim filed on 10 February 1961 does not repeat the claim for mesne profits. On the authority of Cargill v. Bower1 he is deemed to have elected to abandon it. Nothing further need be said about this part of the claim.
The plaintiff’s case as appearing on his pleading is that he was for seventeen years the odikro of
Sagyimase. He abdicated in 1959 after he had been served with destoolment charges. While on the stool, he was at first in receipt of £G4 a month salary, this was later increased to £G8 per month. Ten years after he had ascended the stool, he started erecting the building which is the subject-matter of this dispute, on a vacant plot, to the knowledge of his elders. With their consent he borrowed some corrugated iron sheets which had been removed from the ruins of the Antwere fetish house. At the time of his abdication he had completed only one room, which he had let out at a monthly rental of seven shillings. Since his abdication the defendants have taken possession of the house, driven out the tenant after collecting some rents from him and used the house as an ahenfie for the new odikro, Bafour Kwesi Koramoah.
The defendants by their defence do not specifically deny that the plaintiff built the house, but they contend that he built it on the tacit understanding that the house would be used as an ahenfie. On the basis of this tacit understanding the oman allowed the plaintiff to use the corrugated iron sheets from the old fetish house, which he had previously occupied as an ahenfie. They also provided him with the board used in roofing the building. They contend further that the house was built on the site of the old fetish house, which the plaintiff had, with the consent of the elders, pulled down to make room for the new house. They deny that the plaintiff was ever in receipt of a salary. According to them they have never collected rent from any tenant, and have not unlawfully dispossessed the plaintiff of any house. The plaintiff, they say, voluntarily gave up possession of the house on abdication. They deny the plaintiff’s right to let out the house. The defendants by an amendment to their statement of defence set up a plea of estoppel per rem judicatam. They pleaded, “The plaintiff is estopped per rem judicatam from bringing this action on the grounds that the plaintiff’s mother had litigated with the odikro of Sagyimase on the same subject-matter on 23 June 1960 at Kibi.” The defence, so vaguely pleaded was traversed by the plaintiff in his reply in no uncertain terms. He said:
“The plaintiff will contend that the alleged ‘court’ which heard the dispute was not a court of competent jurisdiction. No final decision was given and the trial was also irregular. None of the parties in that so-called ‘trial’ was authorised by the plaintiff to sue on his behalf and the house was not specifically claimed in the previous action.”
The plea was doomed to failure. The defendants did not succeed in establishing even one essential condition for a successful plea of estoppel per rem judicatam. The first defendant who gave evidence did not even mention it. I hold therefore that the plaintiff is not estopped by res judicata from maintaining this suit.
The main issue of fact arising for decision is: Whether there was any tacit understanding that the house built was to be used as an ahenfie and whether on that understanding, the oman allowed the plaintiff to use the corrugated iron sheets, and also supplied him with boards for roofing the said house. The question whether the house stands on the site of the old fetish house is only one relevant factor to be taken into account in deciding this main issue of fact. Proof that the house stands on the site of the old fetish house may lend weight to the contention of the defendants that the original project was the erection of an ahenfie. Nothing, however, prevents the elders of the stool, permitting a stool subject to farm or build on land which had previously been appropriated for public use or purposes. If the elders agreed that the
plaintiff should build his own private house, they could also have permitted him to use the site of the old fetish house. Land which has been appropriated for a public project or for public use can be released by the stool elders for use by the subjects of the stool and even strangers for private purposes. The release need not be express, it may be implied from the surrounding circumstances of each case. If it is proved by other evidence that the elders of the stool consented to the plaintiff ‘s building a private house and that they stood by doing nothing and watched him put up a house on land appropriated for public use, I do not think that they can or should be allowed to set up that fact to defeat the plaintiff ‘s claim to ownership of the house.
In claims for declaration of title the burden is on the plaintiff to satisfy the court that he is entitled to the relief he seeks. He does this not by relying on the weakness of the defendant’s case, but on the strength of his own case. As Webber C.J. said in the oft-quoted passage in Kodilinye v. Odu2:
“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”
This however is what has been called the general burden of proof, the burden of establishing a case by a preponderance of evidence. It is the burden of proof of the facts in issue. In civil trials in the local courts where there are no pleadings, the defendant by a plea of “not liable” puts in issue every fact on which the plaintiff relies to prove his title. The position is not the same in the High Court. A party need not prove that which his adversary admits. The defendant must deny specifically every fact in the plaintiff’s statement of claim which he does not admit. In this case, as I have already said, the defendants did not specifically deny that the plaintiff built the house; their case is that he built it on the understanding that it would be used as an ahenfie, and on that understanding the oman supplied boards and corrugated iron sheets. It is not part of the case of the defence that the plaintiff used stool funds in building the house. That issue therefore does not arise, and the failure of the plaintiff to prove affirmatively that he was in
receipt of a salary does not materially affect his case. In the circumstances of this case he was under no obligation to prove the source of his funds.
The evidence in support of the plaintiff’s case that there was no understanding or agreement to build an ahenfie is overwhelming. He is supported by the then mankrado, and the asafoakye, who were both present when the oman took the decision not to build an ahenfie. The carpenter he hired and paid to roof the house was called and he supported the plaintiff’s case; the mason who plastered the walls was called and his testimony was unshaken. There is no dispute that the house took some years in building, and that even at the plaintiff ‘s abdication or destoolment, the house was not completed. I cannot imagine the woman putting in only one day’s work in a period of years if in fact it was an oman project. The fact that labourers were hired by and paid by the plaintiff to dig the swish, cart water and sand is not disputed by the defendants. I prefer the plaintiff’s evidence that the corrugated iron sheets were a loan to him by the then elders and that the one-day help given him by some young men of the asafo in sawing his timber into boards was gratuitous and not given as a contribution to an oman project. I reject the suggestion that the ex-mankrado Yeboah, and the ex-asafoakye Wiredu gave evidence for the plaintiff because they have also been destooled by the defendants. I do not accept that their evidence was actuated by malice or any ill will against the new odikro and his elders. I further accept the plaintiff’s evidence that he built on vacant or fresh ground, i.e. he did not build on the site of the old fetish house. There is no dispute that there is a lane or a path between the site of the fetish house and the house in dispute. The house then cannot be on the same plot as the fetish house since the defendants themselves admit that the lane was constructed when Nana Ofori Atta I laid out the village in plots. Moreover the evidence of the plaintiff and his witnesses that the plaintiff’s father has extended his house by building a kitchen on the site of the old fetish house was not seriously challenged. In any case, even if I had found as a fact that the house stands on the site of the old fetish house, I would nevertheless have held that the oman by its conduct must be considered to have released the site to the private use of the plaintiff. Finally I accept the plaintiff’s evidence that when he was first enstooled, he lived in his father’s house. He was then a very young boy, and his father was the man in charge of the fetish. The fetish was in front of his father’s house. I accept the plaintiff ‘s evidence that there was no ahenfie in those days, and that that was one of the primary reasons why he approached the oman initially with the proposal to build an ahenfie. The first defendant on his own showing is not very much acquainted with the early history of the new Sagyimase which was founded about the year 1926, when he was away on his travels as a mason. He says that he finally returned home about fourteen years ago, and even now, periodically goes away to his cocoa farms in Akwapim.
The legal issues in this case must now be considered. The legal capacity of an occupant of the stool to acquire private property while on the stool has arisen often in the courts of Ghana. Most of the reported cases, however, have dealt with the capacity of the stool occupant to hold properties self-acquired or privately acquired before enstoolment. In Boateng alias Beyeden v. Adjei,3 Akufo-Addo J.S.C. reviewed all these cases, and drew attention to the evidential nature of the rule relating to pre-enstoolment declarations of private property.
The contention however that a rule which presumes properties self-acquired before ascension to a stool to be stool property, is evidential, does not necessarily mean that there can be no rule of substantive law prohibiting an occupant of a stool from acquiring property while on the stool. I propose therefore to examine two of the cases cited in argument which deal with the capacity of a stool occupant to acquire property. The first chronologically is Antu v. Buedu4 In that case the plaintiff claimed inter alia recovery of a house. He admitted that the house was built after he had become a chief. Gardiner Smith J. in the Divisional Court said:
“As regards the house, plaintiff admits that it was built after he became Chief, and it therefore comes under the general principle of native law which I referred to in Kwamin Tsinkuran v. Ohene Ansah and ano., 13th December, 1926, viz., ‘that property acquired by a Chief while on the stool belongs to the stool.’ It is, in my opinion, immaterial whether a former house on the same site was or was not the property of plaintiff.”
The rule, so stated in absolute terms, was approved by the Full Court, Michelin J. saying5: “In my opinion, the learned Judge was right, therefore, in holding that the house built by the plaintiff, after he came on the stool, came under the general principle of native law, to which he referred, and the plaintiff was not entitled to retain this house, after he had ceased to be chief.” The textwriters also state the rule in absolute terms. For example Warrington in his Notes on Ashanti Custom at p. 70 said:
“When a Chief is in occupation of the Stool he is according to ancient custom incapable of owing [sic.] any property apart from the Stool, he and the Stool are one . . . If a Chief engages in any business undertaking he must obtain the consent of the Elders before doing so, any profit he makes is then a gain to the Stool and any loss a Stool debt.”
The rule thus stated may have been satisfactory in the palmy-days of chieftaincy, when the chief was rich in services, when he, his wives and children were cared for by the oman. Social conditions are however changing rapidly, and as Cardozo said in his Nature of the Judicial Process (Yale Paperbound edition, 1960) at pp. 98-99:
“Few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end. If they do not function, they are diseased. If they are diseased, they must not propagate their kind. Sometimes they are cut out and extirpated altogether. Sometimes they are left with the shadow of continued life, but sterilized, truncated, impotent for harm.”
In Acquah III v. Ababio6 M’Carthy J. sterilized the rule, but left it with a shadow of continued life. In that case the omanhene bought a house while on the stool. When he was destooled, the defendants acting for and on behalf of the oman took possession of this house claiming it as stool property. He therefore sued them claiming title to the house. The defence put up by the defendants was that the plaintiff had purchased the said house with stool funds and that even if it were otherwise, it would still be stool property as it was acquired by the plaintiff while on the stool. The trial judge seemed to have accepted the opinion of the assessor that according to customary law an omanhene can never acquire private property while he is on the stool unless he first obtains the consent of the oman. He also disbelieved the plaintiff’s story as to the sources of the money paid by him for the purchase of the house. When the case came before the West African Court of Appeal, M’Carthy J. relied on a dictum in Yamuah IV v. Sekyi7 to whittle down the operation of the rule under discussion. He said8:
“Thus, if it can be proved that the Oman have by words or conduct indicated that they regard the Omanhene’s personal emoluments as his private property, and that the property in question has been paid for by the Omanhene out of such emoluments, then his title to the property would be established. But the onus of proof lies on him. It follows from the above that in our view it was incumbent on the appellant to show that the question of ownership of the house could be brought within the exception stated in Yamuah v. Sekyi to the general rule
of customary law above-mentioned.”
The hands of M’Carthy J. were tied by the finding of fact by the trial judge that the money used in paying for the house had not been proved not to belong to the stool. The question therefore whether a stool occupant can acquire private property while on a stool did not really arise for decision. He therefore dismissed the appeal, and in doing so took the opportunity of opening up an out-flanking movement by delivering himself of the dictum quoted above.
In this case the point arises clearly for decision. Now a stool is a corporation, whether it is a corporation sole or corporation aggregate need not detain us. The important fact is that it is a corporation, a legal entity to which the law ascribes rights and duties, and appoints human beings as its agents. The rights of the occupant of the stool in stool property are no greater than the rights of other elders of the stool. That he alone cannot without the consent and concurrence of his elders alienate stool property is trite law. The legal estate is vested in the stool and not in him, and his rights amount to little more than participation in the control and management of stool property. The correct position is stated by Ollennu J. in his recent book, Principles of Customary Land Law in Ghana, at p. 9: “The stool or skin constitutes a corporation; and the occupant of the stool or skin, or the head of the tribe, together with his elders and councillors, are trustees holding the lands for the use of the community, the tribe and the family.” It has never been suggested that an elder or councillor of a stool cannot acquire private property while he occupies that position, yet vis-a-vis stool property he is in a similar position as the stool occupant. It seems to me that the rule has hitherto been too widely stated. It is my opinion that customary law viewed with disfavour the acquisition of private property from stool property by those who were trustees of such stool property. In other words the occupant of the stool and his elders were not allowed to traffic in stool property. The occupant of the stool being the most prominent of these trustees of stool property, and also the recipient of the greater share of services rendered to the stool, customary law looked with greater disfavour on any attempt by him to traffic in stool property. But that does not mean that an occupant of the stool cannot acquire private property, for as Akufo-Addo J.S.C. said in the Boateng case9:
“. . . it has never been a principle of the customary laws of Ghana that the self-acquired properties (whether acquired before or after his accession to the stool) of a stool occupant become merged into stool properties by the mere reason either of the owner of such properties occupying a stool or of the absence of a pre-enstoolment declaration or earmarking of such properties.”
I think therefore the true position is that a stool occupant or an elder of the stool is in the same position as a stool subject, and that he can appropriate a portion of stool or communal land to his own use, with the proviso that there should be nothing in the transaction to suggest that he has taken undue advantage of his position as an occupant of the stool to acquire that which he would not otherwise be permitted to acquire. In other words the transaction should be at arm’s length. In this case it is agreed by both the plaintiff and the defendants that the plaintiff called a meeting of the whole oman before the decision was taken to build. It is also agreed that he informed the oman and the elders before he made use of the corrugated iron sheets. I do not see anything in the conduct of the plaintiff to suggest that he took unfair advantage of his position as an odikro to build on a plot which he would not as a subject have been allowed to build on. I therefore grant the declaration sought, and order that the plaintiff can recover possession of the house, the subject-matter of dispute forthwith. I award the plaintiff damages in the sum of £G300, and I grant the order for perpetual injunction restraining the defendants, their agents, servants and privies from interfering with the plaintiff ‘s quiet enjoyment of the premises. I award plaintiff costs assessed at 250 guineas inclusive of counsel’s fee of 200 guineas.
DECISION
Judgment for the plaintiff.
T. G. K.
