IBRAHIM AZABU JANGA vs. SCANCOM GHANA LIMITED & 2 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)

PROF. MENSA-BONSU (MRS.) JSC

KULENDI JSC

ADJEI-FRIMPONG JSC

DZAMEFE JSC

CIVIL APPEAL

NO. J4/42/2025

22ND APRIL, 2026

IBRAHIM AZABU JANGA ……….. PLAINTIFF/APPELLANT/APPELLANT

(SUING AS HEAD OF THE KURINYINI

DANA AZABA FAMILY PER HIS LAWFUL

ATTORNEY ABUDUL-MUMIN AZABU)

VRS.

SCANCOM GHANA LIMITED DEFENDANTS/

ATC TOWER GHANA LIMITED RESPONDENTS/

THE SOO-NAA OF THE SOO TRADITIONAL AREA RESPONDENTS

(PER ITS OCCUPANT)

JUDGMENT

KULENDI JSC:

INTRODUCTION:

This is an appeal against the Judgment of the Court of Appeal, Accra dated 24th June, 2022. By the said judgment, the Court of Appeal affirmed the decision of the High Court dated 8th May, 2020 entered in favour of the Respondent.

APPELLANTS CASE:

The Appellant commenced this action in his representative capacity as Head of the Kurinyini Dana Azaba Family, acting through his lawful Attorney. In his Writ of Summons and Statement of Claim dated 26th November, 2018, the Appellant averred that the members of the Kurinyini Dana Azaba Family reside at Janga in the West Mamprusi District in the Northern Region of Ghana. The Appellant further averred that, by virtue of his position as Head of Family, he holds and administers all properties belonging to the Kurinyini Dana Azaba Family both on his own behalf and in trust for the members of the family. It was additionally the Appellant’s case that ownership of land within the Janga Traditional Area is vested in families and not in Chiefs.

Consequent upon the foregoing, the Appellant averred that any transaction affecting land within the said area could only validly be undertaken by the Head of Family or his duly authorized representative acting with the consent and concurrence of the principal members of the family. On the strength of this assertion, the Appellant contended that his family is the owner of the parcel of land situate at Fongni-Janga in the West Mamprusi District, hereinafter referred to as “the disputed land.”

The Appellant further averred that members of his family had settled on portions of the disputed land and had, for well over four hundred (400) years, remained in continuous, open, peaceful and undisturbed possession thereof whilst exercising diverse acts of ownership over the land. According to the Appellant, sometime in 2017, the family, acting through one Abdul-Mumin Azaba, instituted an action against one Alhassan Sulemana at the District Court, Walewale, seeking a declaration of title over a portion of the family land allegedly allocated to him by the 3rd Respondent, and judgment was subsequently entered in favour of the Appellant family.

It was further the Appellant’s case that the predecessor of the 3rd Respondent, one Chief Saaka Sumani, who was then the head of the Naabunpoosa Family, approached the Appellant’s family and informed them that the West Mamprusi District Assembly had requested that portions of the Appellant’s family land together with portions of the Afa Mahi family land be demarcated for use as a market. The Appellant averred that his family consented to the said request.

The Appellant further stated that sometime in 2007, he became aware that the 1st Respondent was taking steps to construct a telecommunication mast on a portion of the disputed land belonging to his family.

Upon making inquiries, the Appellant discovered that the 1st Respondent had purportedly sought the permission and consent of the predecessor of the 3rd Respondent, the Soo-Naa at the time, in relation to the said construction. According to the Appellant, one Abdul-Mumin Azaba, a principal member of the family, subsequently approached the then Soo-Naa of the Soo Traditional Area, namely Chief Saaka Sumani, to ascertain whether he was aware of the intention of the 1st Respondent to erect the mast on the family land. Chief Saaka Sumani reportedly confirmed that he was aware of the intended construction and assured the family that they would be informed should the 1st Respondent return to the community so that the 1st Respondent could rightfully attorn tenancy to the Appellant family.

The Appellant averred that notwithstanding these assurances, the family never received any further communication from Chief Saaka Sumani. He further contended that despite the family’s express resistance to both Chief Saaka Sumani and the 1st Respondent regarding the proposed construction, the mast was nonetheless erected on the disputed land.

The Appellant contended that in December 2007, during a meeting attended by two principal members of his family, Chief Saaka Sumani and certain elders of the Soo Skin, the said Chief admitted that the land upon which the 1st Respondent had erected the telecommunication mast belonged to the Appellant’s family. According to the Appellant, the 3rd Respondent was present at the meeting and an altercation ensued between one Mahama Musah and the 3rd Respondent when the latter allegedly urged the late Chief not to surrender the Deed of Assignment executed with the 1st Respondent to the Appellants family.

The Appellant further stated that the late Chief Saaka Sumani advised the family to engage the 1st Respondent in discussions aimed at amicably resolving the dispute and securing recognition of the family’s ownership of the land.

Pursuant to the said admonition, Appellant alleged that by a letter dated 7th April, 2008, the family invited the 1st Respondent to a meeting for the amicable settlement of the dispute, but the invitation was ignored. A complaint was subsequently lodged with the Nayiri, overlord of the Mamprugu Traditional Area, but according to the Appellant, the late Chief Saaka Sumani disobeyed the Nayiri’s directive and refused to surrender the alleged Deed of Assignment.

The Appellant further stated that in March, 2018, the family instituted an action against MTN Ghana Limited and the 3rd Respondent, only to subsequently discover that “MTN” was merely a trade name and not the incorporated legal entity of the 1st Respondent. Consequently, the action was struck out on the basis that MTN Ghana Limited was not a proper party to the suit.

The Appellant averred that it was only after the striking out of the said action that the family discovered that the 2nd Respondent had, since 2011, taken over the management and operation of the telecommunication mast. According to the Appellant, by purchasing and assuming the rights and operations relating to the mast, the 2nd Respondent had effectively endorsed and continued the alleged trespassory acts of the 1st Respondent and was therefore equally liable. The Appellant further contended that the telecommunication mast posed serious health hazards to members of the family residing in close proximity to it.

Consequently, the Appellant, as Plaintiff before the High Court, commenced the instant action against the Respondents herein (Defendants therein) by a Writ of Summons filed on 26th November, 2018, claiming jointly and severally against the Respondents the following reliefs:

A declaration of title to all that piece or parcel of land located at Janga in the West Mamprusi District of the Republic of Ghana near Kanbonaba’s house at Fongni-Janga and bounded as follows: On one side with Naabunpoosa family land, On the second side with Jandan Andani’s family land, On the third side with Liman’s family land and on the last side Afa Mahi’s family land.

A declaration that 3rd Defendant is not the rightful owner of the land on which the 1st Defendant had constructed its booster pole which it later on handed over to the 2nd Defendant for management and operation.

A declaration that Defendants trespassed onto Plaintiff’s family land when Defendants constructed a booster pole on the aforesaid land without the consent and permission of Plaintiff’s family.

An order directed at Defendants to remove the said booster pole and in the alternative Plaintiff be at liberty to demolish and remove the said booster pole and the cost of such removal be surcharged on the Defendants.

An order directed at Defendants to compensate Plaintiff for the period that Defendants has trespassed onto Plaintiff’s family land.

Damages for trespass.

Cost.

1ST RESPONDENT’S CASE:

It is the case of the 1st Respondent that it lawfully acquired the disputed land from its grantor, Mahamadu Issah, pursuant to an agreement dated 17th December, 2006, for a term of fifteen (15) years, and immediately entered into possession thereof.

The 1st Respondent averred that it enjoyed peaceful and undisturbed possession of the land until 2011, when it assigned all its interest in the disputed land to the 2nd Respondent, who thereafter assumed the management and ownership of the 1st Respondent’s various tower sites. The 1st Respondent further stated that the 2nd Respondent subsequently entered into an agreement with the 3rd Respondent, but that the 1st Respondent was not a party to that agreement.

The 1st Respondent also contended that the Appellant’s action was statute-barred.

2ND RESPONDENT’S CASE:

It is the case of the 2nd Respondent that lands in Janga are generally skin lands vested in the occupant of the skin. The 2nd Respondent averred that the 1st Respondent entered into an agreement with Mahamadu Issah on 17th December, 2006 for the disputed land, upon which the telecommunication tower was to be erected.

The 2nd Respondent further stated that by a statutory declaration dated 21st February, 2012, Mahamadu Issah declared that he acted only in the capacity of caretaker for Naa-Tung Samani Saaka in respect of the lease agreement dated 17th December, 2006.

It was further the 2nd Respondent’s case that, by a Deed of Assignment dated 11th August, 2011, the 1st Respondent’s interest in the lease agreement of 17th December, 2006 was assigned to it. Thereafter, the 2nd Respondent entered into a new lease dated 17th May, 2012 with the Janga Skin, acting per Naa Tung Sumani Saaka, in respect of the said parcel of land.

The 2nd Respondent also averred that its attention was first drawn to the Appellant’s claim when a letter dated 17th May, 2016 was forwarded to its address, to which it duly responded. It further stated that another letter dated 14th November, 2018 was received from the Appellant, and that it also responded to same.

3RD RESPONDENT’S CASE:

It is the case of the 3rd Respondent that under Mamprusi custom, allodial title to land is vested in the skin or occupant of the area where the land is situated.

The 3rd Respondent averred that the disputed land falls within Mamprusi territory, and that Mamprusi customary law therefore applies. Under Mamprusi custom, according to the 3rd Respondent, all lands are vested in the Nayiri, who holds paramount title. The 3rd Respondent consequently denied that any family holds allodial or customary ownership rights over the disputed land.

The 3rd Respondent further stated that families may acquire land for farming and residential purposes, but only subject to the express authority of the Chief of the Soo Traditional Area.

It was also the 3rd Respondent’s case that the telecommunication mast is located within the market area, and that the skin is the grantor of all lands within and surrounding the Janga market. The 3rd Respondent averred that the grant for the market was made exclusively by the predecessor chief, and that the Appellant was not involved in that transaction in any way.

The 3rd Respondent further contended that only the Appellant has a house near the mast, and that none of his family members reside close to it. Additionally, the 3rd Respondent maintained that there was no need for his predecessor to deal with the Appellant because the Appellant had no title to the land on which the communication mast was erected.

Finally, the 3rd Respondent averred that although the Appellant’s family is a royal family with the right to ascend to the Soo Skin, it was not yet their turn to do so. The 3rd Respondent therefore maintained that the Appellant had no title to the disputed land and no right to renegotiate with the 1st and 2nd Respondents.

JUDGMENT OF THE HIGH COURT, TAMALE

The High Court on the 8th day of May, 2020 delivered its judgment in favour of the Respondents and held as follows;

“In my view, the plaintiff failed woefully to prove that families or clans in Mamprugu could grant leases as if there are landowners in the true sense of the word. On the whole I hold that the 3rd Defendant is the rightful person to grant leases in Janga for developmental uses.

The Plaintiff and his witnesses could not mention one feature on their common boundary to give the court a clue as to where the Plaintiff is claiming to be a customary freeholder. The only place which has been identified is where the mast is located. This piece of land as the evidence has shown is in the market where the plaintiff’s freeholder title has been annexed by the 3rd Defendant for developmental purposes. The larger tract of land there is no proof of its identity and location and this has disabled me from coming to the conclusion that the plaintiff is the customary freehold owner of the said uncertain land.

…

In conclusion, the entire reliefs being claimed by the plaintiff fails and same is accordingly dismissed”

JUDGMENT OF THE COURT OF APPEAL

Aggrieved by the judgment of the High Court, the Appellant lodged an appeal to the Court of Appeal. The Court of Appeal, in a judgment delivered on 24th June, 2022, dismissed the appeal and, in resolving the central conflict between the proprietary interests of the usufructuary holder, vis a vis the allodial title holder, held as follows:

“How can one argue that the overlord’s right over the usufruct should not include the overlord making grants of even lands owned by the usufruct where development of the community is concerned?

In the instant case the evidence established the Nayiri had made several grants for such development initiatives and this has been accepted within the traditional area. It has been accepted because he is seen as the overlord with rights to override the usufructuary interest.

One of such developments is the erection of a booster pole by the 2nd and 3rd defendant. We have stated that we are in agreement with the trial judge in recognizing the Nayiri’s right in the grant of the land to the 2nd and 3rd defendants.

Evidence of respect for the consent of each other- the family and the Nayiri and his subchiefs- in transactions relating to land has been pervasive on the record. It should therefore be expected that each will give maximum respect to the practice for sound land administration in the traditional area. It is in very extreme cases that the family withholding its consent, particularly regarding development projects, should result in the invocation of the powers of the overlord on behalf of the people to subdue such refusal.

Proceeding from the above reasoning we conclude dismissing the appeal in its entirety.”

APPEAL TO THE SUPREME COURT:

Dissatisfied with the judgment of the Court of Appeal, particularly its affirmation of the trial High Court’s finding that the allodial title holder possesses, in certain circumstances, a supervening right capable of overriding the proprietary interests of the usufructuary holder, the Appellant lodged a further appeal before this Court on the following grounds:

The Judgment is against the weight of the evidence

The trial High Court and the Court of Appeal both erred in law when they held that the chief or skin could take freehold interest of the Appellant’s family without their consent.

THE APPELLANT’S CASE BEFORE THE SUPREME COURT:

The Appellant avers, in its Statement of Case filed in support of the instant appeal, that the principal issue requiring determination by this Honourable Court is whether the Nayiri, as overlord, or any sub-chief within the Janga Traditional Area, such as the 3rd Respondent herein, may unilaterally alienate lands owned by families, without the knowledge, consent or concurrence of the family concerned, merely on the basis that the land is purportedly required for developmental purposes.

According to the Appellant, the decision of the Court of Appeal has emboldened the 3rd Respondent, together with certain chiefs and skins within the Mamprusi Traditional Area, to embark upon what it described as the indiscriminate alienation of family and individual lands to third parties under the pretext of facilitating developmental projects. The Appellant contends that this practice has become an increasing source of tension, discord and conflict within the affected communities.

The Appellant further points out, significantly, that both the High Court and the Court of Appeal made a clear finding of fact that the disputed land originally belonged to the Appellant’s family. Notwithstanding this finding, the Court of Appeal proceeded to hold, contrary to the established stream of authorities recognizing both the potentially perpetual nature of the usufructuary interest and its primacy even against the holder of the allodial title, that the peculiar incidents of Mamprusi customary law permit the holder of the allodial title, or skin, to override the interest of a usufructuary owner.

The Appellant rejects this conclusion and maintains that customary law, however distinctive in its incidents, cannot operate in a manner inconsistent with settled principles of law governing proprietary interests in land.

Moreover, and even assuming arguendo that the holder of the allodial title possesses a limited overriding power in circumstances where land is genuinely required for a developmental project, the Appellant contends that the installation of a telecommunication mast cannot properly be characterized as such a project.

In the Appellant’s view, the telecommunication mast represents a private commercial undertaking which primarily benefits those who erected and operate it, rather than the community at large, save for the incidental enhancement of communication services.

Consequently, the Appellant argues that a telecommunication mast, erected for the commercial benefit of the 1st and 2nd Respondents and from which periodic rents are paid to the 3rd Respondent, cannot reasonably be equated with the public development initiatives cited by the Court of Appeal, including the construction of a regional hospital and the Government rice project, in respect of which the Nayiri had allegedly made land available.

The Appellant further submits nonetheless that, irrespective of whether the project in question may be regarded as developmental in character, the law does not permit the developmental nature of a project, without more, to justify the extinguishment or overriding of an existing family or individual usufructuary interest by the holder of the allodial title.

In support of its position, the Appellant also referred this Court to an earlier action commenced before the District Court against one Alhassan Sulemana, a grantee and privy of the 3rd Respondent.

The Appellant notes that the District Court, in that matter, annulled the grant made by the 3rd Respondent and affirmed the Appellant family’s interest in the land. The significance of that decision, according to the Appellant, lies in the fact that, although the dispute similarly involved a grantee deriving title from the 3rd Respondent, the Court nonetheless upheld and protected the Appellant family’s proprietary interest.

Ultimately, the Appellant concluded its submissions by forcefully contending, through reliance on a substantial body of authorities, that once the Courts below had acknowledged that the disputed land fell within an area over which the Appellant’s family exercised a usufructuary interest, the land could not lawfully be alienated by the holder of the allodial title, namely the 3rd Respondent, without, at the very least, the consent, concurrence or participation of the family whose usufructuary interest was affected.

On the strength of the foregoing arguments, the Appellant prays this Honourable Court to set aside the judgments of the Courts below and allow the appeal.

1st RESPONDENT’S CASE BEFORE THE SUPREME COURT:

Despite having been duly served with notice of the pendency of this appeal, only the 1st Respondent filed a Statement of Case in opposition to the appeal. The remaining Respondents elected not to participate in the appellate proceedings.

In its Statement of Case, the 1st Respondent advanced a number of arguments in support of the judgments of the High Court, Tamale and the Court of Appeal, Tamale, both of which dismissed the Appellant’s claims as endorsed on his Writ of Summons and Statement of Claim.

A principal objection raised by the 1st Respondent concerned the competence of Ground B of the Appellant’s Notice of Appeal. The 1st Respondent contends that this ground offends Rule 6(2)(f) of the Supreme Court Rules, 1996 (C.I 16) which requires that where an Appellant alleges an error of law or misdirection, the particulars of such error or misdirection must be clearly stated. According to the 1st Respondent, the impugned ground fails to particularize the error of law alleged and consequently fails to identify with sufficient precision the specific error complained of. On this basis the Respondent invites this Court to strike out the said ground as defective.

On the substantive merits of the appeal, the 1st Respondent maintains that the Appellant’s family had lost any usufructuary interest it may previously have enjoyed in the land through acquiescence and abandonment. In this regard, the 1st Respondent points to evidence adduced at the trial which, in its view, demonstrated that the Appellant’s family permitted the 3rd Respondent to make the land available for the construction of a market.

Significantly, the 1st Respondent argues that the Appellant’s own witness admitted that, in relation to the construction of the market, the District Assembly dealt exclusively with the chief and not with the family. According to the 1st Respondent, the evidence further disclosed that the Appellant’s family building which had once existed on the land had collapsed before the market was constructed and that no member of the Appellant’s family was occupying, cultivating or otherwise exercising possessory rights over the land at the time the telecommunication mast was erected.

Against this backdrop, the 1st Respondent argues that the Appellant’s family, having ceded the land for use as a market and having stood by while the chief openly exercised acts of ownership over it, effectively acquiesced in the extinguishment of whatever usufructuary interest they may previously have possessed.

Relatedly, the 1st Respondent contends that the conduct of the family demonstrated a clear intention to relinquish the land, thereby constituting abandonment. According to it, this intention is discernible from the evidence led by the Appellant himself during the trial.

To support these propositions, the 1st Respondent relies on the established customary law principles governing the termination of usufructuary interests through acquiescence and abandonment. In particular, reliance was placed on Ago Sai v. Kpobi Tetey Tsuru [2010] SCGLR 762 with respect to acquiescence, and Total Oil Products v. Obeng [1962] 1 GLR 228 on the doctrine of abandonment.

The 1st Respondent further submits that the telecommunication mast was erected within the market area which, according to the evidence, the Appellant’s family had authorized the 3rd Respondent to make available to the District Assembly. Consequently, the 3rd Respondent did not require any further consent from the family before granting a portion of that land for the installation of the mast.

The 1st Respondent also contends that an independent and decisive basis for the decisions of both the High Court and the Court of Appeal was the Appellant’s failure to establish with certainty the identity of the land in dispute.

According to the 1st Respondent, the Appellant sought a declaration of title to a specific parcel of land allegedly bounded by four named family lands. However, all three Respondents specifically traversed those boundary descriptions in their pleadings.

Notwithstanding those denials, the Appellant called only two of the four alleged boundary owners to testify. Furthermore, the Appellant provided inconsistent accounts regarding the historical use and occupation of the land. At one stage, he asserted that the family had maintained a building on the land; at another, he claimed that the family had used the land for the cultivation of corn. The 1st Respondent therefore submits that the Appellant failed to discharge the burden of proving the precise identity and extent of the land for which a declaration was sought.

Ultimately, the 1st Respondent submits that the Appellant has failed to demonstrate any error warranting appellate intervention. In its view, the evidence established both that the Appellant’s family had acquiesced in, and abandoned, any usufructuary interest they may have held in the land and that the Appellant had failed to prove the identity of the land claimed.

The 1st Respondent therefore contends that the High Court and the Court of Appeal were correct in dismissing the Appellant’s claims, particularly in circumstances where the land had been voluntarily ceded for the construction of a market, within which the telecommunication mast was subsequently erected by the 1st Respondent and later assigned to the 2nd Respondent.

EVALUATION:

Quite clearly, there appears to be a common and unmistakable acceptance by both Courts below that the Appellant’s family, at least prior to the construction of the telecommunication mast, enjoyed a usufructuary interest in and exercised ownership over the Janga area.

Indeed, a careful examination of the judgments of both the High Court and the Court of Appeal reveals a shared recognition that the Janga land had, at one point in time, belonged to the Appellant’s family. Significantly, neither Court rejected the historical existence of the Appellant’s family’s usufructuary interest in the land; rather, the dispute centred on whether that interest in the area in dispute had subsequently been lost or displaced by operation of customary law.

Accordingly, the central issue arising for determination in this appeal is encapsulated in Ground B of the Appellant’s Notice of Appeal. The said ground has been challenged by the Respondent on the basis that it lacks the particulars required under the Rules of this Court. The ground reads as follows:

“The trial High Court and the Court of Appeal both erred in law when they held that the chief or skin could take freehold interest of the Appellant’s family land without their consent”

Admittedly, the ground does not fully satisfy the requirements of Rule 6(2)(f) of the Rules of this Court. Nevertheless, it is readily apparent that the complaint embodied in the ground goes to the very heart of the dispute between the parties.

At its core, this appeal invites the Court to examine the customary law relationship between the usufructuary interest and the allodial title, and, more particularly, to determine the circumstances, if any, under which the holder of the allodial title may lawfully override or extinguish an existing usufructuary interest.

Viewed in that light, it would be unduly technical to disregard the ground merely because of its imperfect procedural formulation. In any case, it is apparent that the substance of the alleged error is sufficiently discernible from the articulation of the said ground, and the issue sought to be raised is neither obscure nor incapable of meaningful judicial determination.

In this regard, we derive considerable support from the approach adopted by this Court in Dowuona VI v Barclays Bank of Ghana Ltd [2023] GHASC 88, where the venerable Ackah-Yensu JSC stated as follows:

“The Court of Appeal appeared to have looked at Rule 8(4), (5) of C.I.19 (as amended) absolutely without taking cognizance of the fact that in doing substantial justice, the court may save grounds from being struck out as inadmissible and unarguable even when particulars of the error of law have not been provided if an examination of the said grounds of appeal reveal that the error or misdirection alleged are actually embedded in the grounds. Consequently, even though the 3rd Defendant did not provide particulars of the error of law alleged in its ground (ii), we find that the particulars are embedded in the formulation of the said ground. We will thus consider it even though it may not have fully satisfied the requirement of the rule.”

We are similarly of the considered view that, although the Appellant has not set out the particulars of the alleged error with the precision contemplated by the Rules, the substance of the complaint is plainly embedded in the ground itself and has been fully ventilated by the parties in their respective submissions. No prejudice has thereby been occasioned to the Respondent, who has clearly appreciated and responded to the issue sought to be raised.

Accordingly, in furtherance of the overriding objective of doing substantial justice between the parties, we shall overlook the Appellant’s noncompliance with the Rules in this regard and proceed to determine the appeal on its merits.

As a matter of first principles, it is necessary to state from the outset that the evidence on record overwhelmingly establishes acts of possession, occupation and ownership in favour of the Appellant and his family over the disputed land.

To begin with, the Appellant’s family previously instituted proceedings in the Walewale District Court against a grantee of the 3rd Respondent in respect of the land and succeeded in obtaining judgment in its favour. That fact was never disputed by the Respondents. The Appellant testified that the subject matter of the District Court proceedings was the very land now in dispute, and significantly, that evidence was not challenged under cross-examination nor contradicted by any evidence led by the Respondents.

Indeed, a comparison between the Statement of Claim in the present proceedings and the District Court judgment, reveals that the boundaries of the land described in both actions are identical. The prior judgment therefore constitutes a strong indication of the Appellant family’s long-standing assertion and exercise of proprietary rights over the land.

Furthermore, the Appellant called two adjoining landowners as witnesses. Their evidence was of particular significance, given their status as boundary owners whose lands directly abut the land in dispute. Notably, the Respondents did not challenge their status as adjoining owners, nor did they dispute the location of their respective lands. Significantly, no meaningful attempt was made to controvert their testimony regarding the identity of the disputed land or their evidence that the land in issue formed part of the area traditionally recognised as belonging to the Appellant’s family.

With the greatest respect to the Courts below, we are unable to agree that, in the face of the totality of the evidence on record, including the testimony of two adjoining landowners, the Appellant failed to establish the identity of the land in dispute merely because only two, rather than all four, boundary owners were called to testify. In our considered view, such an approach imposes an unnecessarily exacting standard of proof and risks elevating the burden resting on a party in civil proceedings beyond what the law requires.

Indeed, the question is not whether every conceivable witness who might have spoken to the identity of the land was called, but whether the evidence actually adduced was sufficient to enable the Court identify, with reasonable certainty, the land which formed the subject matter of the dispute.

To insist that the identity of the land could not be established unless and until all four boundary owners testified would be to elevate form over substance and to impose a standard of proof unknown to civil litigation.

In a judgment of this Court dated 5th July, 2023 in Suit No. J4/53/2022 entitled Nana Kwata Yamoah v. Ebusuapanyin K. Yeboah, which I had the privilege of authoring, this Court held as follows:

“ The standard of proof required in Civil Cases has found judicial expression in a plethora of cases of this Court including the case of Bisi v. Tabiri alias Asare [1987-1988] 1 GLR 360 at page 361 where this Court held as follows;

“the standard of proof required of a Plaintiff in a Civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to a call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected…”

We wish to emphasize that the requirement of proof of identity of land is one which cannot be ignored in land disputes. However, this requirement of proof of identity of land does not impose a greater burden of proof on a party. The identity of land need not be proven to mathematical precision or absolute certainty. Proof of identity of land does not require proof to perfection but that which will enable the court, the parties and third parties to know the very land which is being adjudicated on.”

The foregoing statement of law is, in our view, dispositive of the issue presently under consideration. While a claimant in a land dispute bears the burden of establishing the identity of the land claimed, the law does not demand proof to perfection, nor does it require the calling of every boundary owner as a precondition for success in that regard. What is required is evidence sufficient to enable the Court, the parties and any interested third party to ascertain with reasonable certainty the land to which the judgment relates.

In the instant case, the evidence of the Appellant, the testimony of the boundary owners who were called, the previous litigation concerning the same land, the consistency of the boundary descriptions appearing in the record, and indeed the admissions elicited from the Respondents’ own witnesses, collectively provided more than sufficient material from which the identity of the land could be readily ascertained. In these circumstances, we are unable to uphold the conclusion of the Courts below that the Appellant failed to establish the identity of the land in dispute.

The evidence of the Appellant family’s historical possession of the land in dispute was further reinforced by the testimony of the Appellant and all his witnesses, each of whom consistently maintained that the family had been farming on the land.

More significantly, substantial support for the Appellant’s case emerged from the evidence of the 3rd Respondent’s own witnesses. While the 3rd Respondent sought to contend that all lands within the Janga area belonged to the Soo Naa Skin, that position was materially undermined by the testimony of its own witnesses.

The 3rd Respondent’s witness, one Bugri Nantogmah, made a significant admission under cross-examination. Contrary to the 3rd Respondent’s contention that all lands within the Mamprusi area are vested in and owned by the Skin or its sub-skins, the witness conceded that lands within his jurisdiction are in fact owned and occupied by individual families, when he testified as follows:

Q: All the lands within your jurisdiction was owned and occupied by individual families.

A: It is true

Similarly, the 3rd Respondent’s second witness, Alhassan Inusah, affirmed that the Appellant’s family owned land at Janga, when he testified as follows:

Q: The Plaintiff’s family has a family land at Janga?

A: Yes

He further admitted, consistent with his earlier evidence, when the Appellants lawyers put it to him under cross-examination that “in Janga, just like any Mamprugu Township, the land is owned by various families but just that the Nayiri has the highest title in that land.”

Taken together, this body of evidence on the record points irresistibly to the conclusion that the Appellant’s family exercised possessory rights over the land, occupied and used it as family land, and was recognised, not only by its own witnesses but also by the witnesses of the 3rd Respondent, as having a usufructuary interest in land within the Janga Traditional Area.

We shall now turn to the gravamen of this appeal. Without dispute, the general position of the law governing the interplay between the holder of a usufructuary interest and the holder of the allodial title has long been settled. A person who has validly acquired a usufructuary interest in land cannot ordinarily be dispossessed of that land, nor can the land be alienated by the holder of the allodial title to a third party without the consent or concurrence of the usufructuary owner.

There exists an irresistible and unbroken current of authority which has consistently enunciated and reiterated this principle. As far back as 1957, in Ohimen v. Adjei [1957] 2 WALR 275, the Court held as follows:

“Stool subjects (either as individuals or as families) are entitled as of right to a grant from the stool of such area of stool land as they can conveniently work or as is necessary for their support.

This interest of a stool subject in stool lands thus granted to him is recognized by the courts and he can maintain his action in defence thereof against the world at large, including his grantor stool. His interest is that of a determinable estate in possession (i.e., an interest subject to limitations: these are set out below) and it is this determinable estate that will be declared vested in him in an action for a declaration of title to land.

The determinable estate of a subject-grantee is inheritable automatically (i.e., without relief or other acknowledgment, unless such be established by a particular local custom) and is similarly alienable to another subject of the same stool, but it becomes liable to forfeiture by an act constituting a denial of title of the stool-grantor.

A stool may not alienate stool lands in the occupation of a subject-grantee save with (inter alia) the consent in advance of the subject-grantee.”

This jurisprudence has remained unsullied by the passage of time and has continued to receive the emphatic endorsement of this Court.

Thus, as recently as 15th December 2021, this Court in Suit No. J4/32/2021, in a case entitled Ejisu Stool & Anor v. J.C. Addai, reaffirmed the principle through the illustrious Dotse JSC in the following terms:

“The legal position is clear in such circumstances that where such a subject cultivated an unoccupied land of his stool or sub-stool and settles thereon he acquires the usufructuary interest in such land, an interest which cannot be divested by the stool or sub-stool, in our case the Apenkra stool, without Defendant’s family’s consent. The authorities are agreed that the usufruct has security over the land he has reduced into his possession and that land so reduced into possession is immune from divestiture by the stool, interest acquired by the usufruct acquires the attribute of inviolability. It is such interest that the Defendant and family has acquired in the Assia lands… It is our hope that occupants of stools and stool elders will conduct their affairs in such away as to ensure that their subjects usufructuary interests are inviolable and well protected and enjoyed by them.”

Even more recently, in a judgment of this Court dated 12th November, 2025 in Suit No. J4/96/2022 entitled Nana Asiedu Agyeman II v. Scancom Limited & Anor, which I had the distinct honor of authoring, in a dispute bearing striking similarities to the present appeal, this Court had occasion to revisit and restate the incidents of the usufructuary interest.

That dispute originated on 13th March, 2007 when the Plaintiff, the Abetifihene and custodian of Abetifi stool lands, commenced an action against the 1st Defendant alleging that it had unlawfully erected a telecommunication mast on Abetifi stool land. The 1st Defendant, however, maintained that it had lawfully acquired a lease over a portion of the land from the 2nd Defendant, who was subsequently joined to the action in 2012 after asserting a usufructuary interest in the land. The 2nd Defendant contended that her family’s interest in the land stemmed from a grant made around 1970 by the Ankobea Family of Abetifi to her grandmother, Akosua Nyarkoa, a subject of the stool, and that she had succeeded to that interest through inheritance. It was her case that, by virtue of that usufructuary interest, she was entitled under customary law to lease a portion of the land to the 1st Defendant without first obtaining the consent or concurrence of the Plaintiff stool.

In resolving the dispute, this Court upheld the position advanced by the 2nd Defendant and affirmed the legal incidents of her usufructuary interest in the following terms:

“As the Court of Appeal rightly noted, the nature and incidents of the customary freehold have long been settled in our jurisprudence and therefore, the 2nd Defendant having established the existence of a customary law freehold in her own favor through her grandmother, she had obtained a potentially perpetual interest over the land which she was at liberty to alienate without the prior concurrence or consent of the Plaintiff.

The venerable jurists B.J. da Rocha & C.H.K. Lodoh their book, Ghana Land Law and Conveyancing (1995) aptly stated:

“The customary freehold is not a mere right of occupation and farming, but an interest in land. It is an interest which prevails against the whole world including the allodial owner. The proprietor of a customary freehold can dispose of it either inter vivos or by testamentary disposition and it devolves as part of his estate if he dies intestate. He does not require the consent and concurrence of the allodial owner to alienate it. He is however under obligation to recognize the title of the allodial owner and to perform customary services due from the subject or member to the Stool or family or clan.” (emphasis mine).”

Even earlier, in Awuah v. Adututu and Another [1987–88] 2 GLR 191, this Court described the usufructuary title as:

“A species of ownership co-existent and simultaneous with the stool’s absolute ownership. … The stool, in effect, no longer has dominium of the stool land but an interest conceptually superior to that of the subject. A concept of split ownership is emerging, allowing the existence of separate but simultaneous estates in respect of the same land. The usufructuary is regarded as the owner of the area of land reduced into his possession; he can alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the prior consent of the stool. There is practically no limitation over his right to alienate that usufructuary title. So long as he recognizes the absolute title of the stool, that usufructuary title could only be determined on express abandonment or failure of his heirs.” (See also Thompson v. Mensah [1957] 3 W.A.L.R. 240).

This principle was recently re-affirmed by this Court in a judgment delivered on the 24th of January 2018 in Suit No. J4/50/2016 entitled Togbe Lugu Awadali IV v. Togbe Gbadawu IV, where this Court, citing the Privy Council in Tijani v. Secretary to the Government of Southern Nigeria [1921] 2 AC 399, held that:

“The owner of the usufruct title can alienate his said title without the prior consent and concurrence of the absolute owner, so long as the alienation carries with it an obligation upon the transferee to recognise the title of the absolute owner. That principle of law still holds good.”

Contrary to the position adopted by the Courts below that this settled principle of customary land law had somehow been jettisoned within the peculiar customary setting of the Mamprusi Traditional Area, the evidence adduced at the trial overwhelmingly points in the opposite direction. Indeed, the evidence establishes that the accepted customary practice within the area was that no family land reduced into the possession of a usufructuary holder could be alienated without the participation, concurrence and consent of the family concerned.

The Appellant, through his witnesses and attorney, readily acknowledged that documentary grants within the Soo Traditional Area are ordinarily executed by the 3rd Respondent. However, the evidence was equally clear that such grants are not made unilaterally. Rather, they are undertaken only after consultation with, and the consent of, the persons in actual possession of the land.

At page 202 of the record, the Appellant’s second witness testified as follows:

Q: I put it to you that all development projects it is the Soo Naa that has done the grants

A: That is true but if someone comes looking for land you go to the chief and greet him. If it is for development project they go to consult the chief and the chief will consult the landowner, if they agree the land is granted to the fellow by the family. Even now my uncle has built close to the market

Significantly, this customary practice, which places the usufructuary holder at the centre of any transaction affecting land reduced into his possession, was expressly acknowledged by the 3rd Respondent’s own witness, Alhassan Inusah, under cross-examination:

Q: Do you understand the meaning of the Mamprusi word “Kpakyoo”

A: Yes it is vacant land that people farm on it so even if a stranger farms sees the land and pleads with the chief that he wanted to settle there, the chief will show him the vacant land even if a family has once farmed there.

Q: You agree with me that when someone wants land and that land is part of his Kpakyoo, the person has to see that Kpakyoo owner.

A: Yes

Quite clearly, therefore, while the chief may perform the important role of facilitating, initiating or brokering transactions relating to land within the traditional area, the evidence, including that of the Respondents’ own witnesses, places beyond controversy the fact that such transactions are not completed without recourse to the usufructuary holder. The consent and participation of the holder of the usufruct remains an indispensable ingredient of the transaction.

In our considered opinion, there was therefore no evidential basis upon which the Courts below could properly infer the existence of a special incident of Mamprusi customary law empowering the holder of the allodial title to unilaterally alienate land already reduced into the possession of a usufructuary holder.

No such custom was established by evidence. On the contrary, the evidence adduced pointed decisively in the opposite direction and demonstrated that the customary practice prevailing within the area was entirely consistent with the general principles governing usufructuary ownership recognised throughout Ghanaian customary jurisprudence.

On the totality of the evidence before us, we are unpersuaded by the attempts of the Courts below to infer an exemption from the general incidents of the usufructuary interest applicable elsewhere in Ghana in relation to the Mamprusi Traditional Area. We find no evidential or legal foundation for the proposition that Mamprusi customary law permits the unilateral divestiture or alienation of land validly reduced into the possession of a usufructuary holder merely because the holder of the allodial title considers the proposed alienation to be desirable or developmental in character.

Accordingly, we set aside the findings of the High Court and the Court of Appeal in that regard and hold, as a matter of applicable customary law, that within the Mamprusi Traditional Area, land which has been validly and lawfully reduced into the possession of a usufructuary holder cannot be alienated, granted, leased, assigned or otherwise disposed of by the holder of the allodial title without the consent and/or concurrence of the usufructuary holder whose interest is thereby affected.

Any purported alienation undertaken in disregard of that requirement is ineffective to the extent that it purports to override or extinguish the usufructuary interest.

Having resolved the principal question concerning the incidents of the usufructuary interest under Mamprusi customary law, we consider it necessary to address a further argument vigorously advanced by the 1st Respondent before this Court, namely that the Appellant’s family had, by its conduct, acquiesced in and abandoned whatever usufructuary interest it may previously have enjoyed over the land in dispute.

With the greatest respect to learned counsel for the 1st Respondent, we are unable to entertain this argument as this contention represents a clear and impermissible departure from the pleaded case presented by the Respondents at the trial.

It is trite learning that parties are bound by their pleadings and that a Court is equally bound to determine a dispute on the case pleaded and presented by the parties. A party cannot, after having contested a case on one factual foundation throughout the trial, seek to uphold the judgment on appeal by advancing an entirely different factual premise which was neither pleaded nor interrogated at the trial.

A careful examination of the pleadings of all three Respondents reveals a consistent and categorical denial that the Appellant possessed any proprietary interest whatsoever in the land upon which the telecommunication mast was erected. The Respondents did not plead that the Appellant had consented to the use of its land for the mast. Neither did they plead that the Appellant had surrendered, relinquished, abandoned or acquiesced in the loss of any usufructuary interest previously enjoyed by it.

Rather, their case throughout was that the Appellant had no proprietary interest in the mast land to begin with.

In particular, the 3rd Respondent’s defence was firmly grounded on the assertion that the Plaintiff had no land at the location of the mast and that the grant of the land was made exclusively by the Soo Naa in the exercise of the rights vested in the Skin. Indeed, at paragraph 8 of its pleadings, the 3rd Respondent unequivocally asserted that the grant of the land was undertaken solely by the Soo Naa and that the Appellant was not involved in the transaction in any manner whatsoever.

Having pleaded and contested the case on the basis that the Appellant had no interest in the land and played no role in the transaction, it does not lie in the mouths of the Respondents at this appellate stage to contend that the Appellant’s family in fact made land available for the market project within which the mast was subsequently erected and that such conduct amounted to acquiescence or abandonment. In our considered opinion, the two positions are plainly irreconcilable.

If indeed the Respondents’ case was that the Appellant’s family voluntarily ceded the land for the market and thereby relinquished its usufructuary interest, nothing prevented them from pleading those facts expressly and relying upon them at the trial. They elected not to do so. Instead, they consistently denied the existence of any proprietary interest in the Appellant whatsoever.

We therefore reject in its entirety the Respondents’ contention that the Appellant’s usufructuary interest was extinguished through acquiescence, abandonment or estoppel.

CONCLUSION:

It is on the basis of the foregoing, that on 22nd of April, 2026 this Court upheld the Appeal as having succeeded in its entirety, set aside the judgment of the Court of Appeal dated 24th June, 2022 which affirmed the judgment of the High Court dated 8th May, 2020 and awarded cost of Thirty Thousand Ghana Cedis (GHS 30,000.00) each against the 1st, 2nd and 3rd Respondents in favour of the Appellants.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.) PROF. H.J.A.N. MENSA-BONSU (MRS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINION

ADJEI-FRIMPONG JSC:

Upon my anxious consideration of the matters of facts and law comprised in this appeal, I am unable to agree with the reasoning and conclusions entered by my revered colleagues of the majority. What follows therefore, is my dissenting opinion.

When I reviewed the judgment of the trial High Court which the Court of Appeal wholly affirmed, save deploying different words and phrases, I landed up fully convinced that the primary facts in the case had in a fulsome manner, been resolved to reach justifiable findings. And this being a second-tier appellate Court, we are loathed to disturb such concurrent findings unless they were simply perverse either for not being supported by the oral or documentary evidence on record or were based on a wrong legal proposition. See FRABINA LTD VRS SHELL GHANA LTD [2011]1 SCGLR 429; KOGLEX LTD (No.2) VRS FIELD [2000] SCGLR 175; OSEI (SUBSTITUTED BY) GILARD VRS KORANG [2013-2014]1 SCGLR 221 and GREGORY VRS NANA KWESI TANDOH IV [2010] SCGLR 971. I did not find the decisions caught up in any of the above exceptions. The general rule that a second appellate Court ought not to interfere with concurrent findings of two lower Courts has been a hallowed one and therefore the path to its exception must be kept narrow. It is the only way this Court can sieve out frivolous appeals and lessen its already overburdened list.

The over-arching question of the dispute turned on who the proper authority was, according to Mamprusi custom, to grant a plot of land to Scancom Ghana Limited, the 1st Defendant/Respondent/Respondent (herein 1st Defendant) to mount a telecommunication mast at Janga. Was the grant by the Soo-Sonaa, the 3rd Defendant/Respondent/Respondent (herein 3rd Defendant) without the consent of the family of the Plaintiff/Appellant/Appellant (herein Plaintiff) a nullity?

Both the trial High Court and the learned Justices of Court of Appeal resolved the question in favour of the 3rd Defendant. The unperturbed Plaintiff appeals in this second appellate Court to have the decision of the Court below set aside.

The Plaintiff by his writ of summons claimed the following reliefs:

A declaration of title to all that piece or parcel of land located at Janga in the West Mamprusi District of the Republic of Ghana near Kanbonaba’s house at Fongi-Janga and bounded as follows: On one side with Naabunpoosa family land, on the second side with Jandan Andani’s family land, on the third side with Liman’s family land and on the last side Afa Mahi’s family land.

A declaration that 3rd Defendant is not the rightful owner of the land on which the 1st Defendant had constructed its booster pole which it later on handed over to the 2nd Defendant for management and operation.

A declaration that Defendants trespassed onto Plaintiff’s family land when Defendants constructed a booster pole on the aforesaid land without the consent and permission of Plaintiff’s family.

An order directed at Defendants to remove the said booster pole and in the alternative Plaintiff be at liberty to demolish and remove the said booster pole and the cost of such removal be surcharged on the Defendants.

An order directed at Defendants to compensate Plaintiff for the period that Defendants have trespassed onto Plaintiff’s family land.

Damages for trespass

Costs.

The Plaintiff’s case to bolster the reliefs was that in the Janga Traditional Area of the West Mamprusi District, land is owned by families and not chiefs. Therefore any grant of land in any part of the Janga area must be made with the consent of the head of the particular family which owns the land. No such grant by a traditional authority is valid without such consent. He said the disputed plot of land belonged to his Kurinyini Dana Azabu family. The family has settled on the land and exercised right of ownership for more than 400 years. When a portion of the land was demarcated to be used as market, the predecessor of the 3rd Defendant sought the consent of his family before the land could be put to use. The present action was mounted because the 3rd Defendant, the traditional authority granted a portion of the land to 1st Defendant who constructed a communication mast and later assigned interest to the 2nd Defendant who took a fresh lease all without the consent of his family.

The case of the 3rd Defendant in which that of the 1st and 2nd Defendant was anchored was that under Mamprusi custom, the allodial title was vested in the skin. The mast was situate in the market at Janga and it was the skin that had the authority to make the grant of the lands surrounding the market. Thus, the authority to grant the land did not rest with the Plaintiff’s family and no consent was required.

The Decision of the High Court

Upon reviewing portions of the evidence adduced, including answers provided by the Plaintiff’s own witnesses during cross-examination which he found as corroborative of the 3rd Defendant’s case, the learned trial judge made a crucial finding that in Manprugu, although individual families own land, it is the chiefs who alienate land for development purposes and not the individual families who exercise usufructuary rights over such lands.

The learned judge also made reference to a statement from an article authored by Professor E.N.A. Kotey [Retired Justice of this Court] titled LAND AND TREE TENURE AND RURAL DEVELOPMENT FORESTRY IN NORTHERN GHANA (1993-95) 19 UJ 102 where the learned academic and Jurist notes inter alia that, in the Northern Ghana, the allodial title in the politically more centralized Dagbon, Mamprusi, Nanumba and Gonja recognize that the allodial title was vested in the various skins. However, practical management of land was done by various sub-skins such as the Diare Na or Savelugu Na in the Dagomba Area and the Nabas (Chiefs) in the Walewale and Langbinsi Areas under the Mampurugu.

Further, the learned trial Judge referred to a published PHD research work by two indigenes of Mampurugu (SAGRE BAMBANG PHD AND ABDULAI ABUBAKARI PHD –OWNERSHIP AND ACCESS TO LAND IN URBAN MAMPRUGU, NORTHERN GHANA, June 2013, Vol. 2 International Journal of Research in Social Sciences ISSN 2307-227X) which he found germane to the issue before the Court. Upon extensive quotations from the works, he observed:

“In their research, they mentioned DW3 who is the Sakpari or one of the elders of Nayiri and their research confirms some of the answers he gave when he was being cross-examined. The capacity of the chiefs under the Nayiri to allocate land was confirmed in the research work. The ability of a Kayoo owner to alienate agriculture land without the consent of the chief was also confirmed. The ability of the chief to overrule protest from families when granting land for development purposes was also confirmed in the research work. Indeed the 3rd defendant’s witness stated that when the Terena family objected to the Government request to use their family land for the construction of a Regional hospital, the Nayiri took over the land and granted same to the Government including the said witness’s own family land. Now with these credible findings, why is the Plaintiff claiming that the 3rd Defendant had no authority to assign that piece of land to the 2nd Defendant? I see no basis for that. This day and age a telecommunication mast is a developmental project and it is within the remit of the chief to grant same even if same is resisted by the Plaintiff’s family in Janga. The land is not an agricultural land. No prudent farmer would cultivate crops in a market place. That explains why nothing of his was destroyed during the construction of the mast. Since the land was released for developmental purposes, the 3rd Defendant had the right to assign even if objected to by the Plaintiff’s family.” [Page 306, ROA].

He then proceeded to analyze the Plaintiff’s evidence as follows:

“The Plaintiff’s evidence on this issue would be looked at. The evidence led was that the land hosting the telecommunication mast belongs to the Plaintiff’s family which holds the allodial title. The said land was leased to the 1st and 2nd Defendants without the consent of the Plaintiff’s family by the 3rd Defendant. The Plaintiff claimed the land was being farmed on by their family member before the mast was put on same. The Plaintiff further claimed that the Soo Naa Saaka Sumani even conceded to their family ownership of the land and directed the 1st Defendant to engage the family. This is the basis for which the Plaintiff is claiming that the 3rd Defendant has no authority to alienate that piece of land. Now the evidence has shown that the mast is within the market as conceded to by PW1 Fuseini Zakariah page 15 of the ROP). Indeed the Plaintiff has not claimed anywhere that the Defendants caused damage to anything of theirs before the mast was fixed on the land. Since there is evidence to the effect that it is only the Soo-Naa who could grant land for developmental purposes, the onus was on the Plaintiff to prove that the individual families in Janga could grant lands for such purposes and that would call to question the validity of the lease granted to the 2nd Defendant. The Plaintiff could not call any family in Janga which had made such allocations and he could not tender any such lease agreement. He only made bare claims that in respect of GN Bank land and hospital land it was the family members that gave same out without proving same by calling those family members or tendering any such agreement. One point the Plaintiff is missing is that when by dint of hardwork a family has made some investment (farming) and there has been the need for that land to be used for a developmental project the family has to receive compensation for the investment on the land. This should not be confused with the right of the chief to make allocations for developmental purposes which includes residential/industrial plots. If it is a bare land, the chief has the right to make allocation without resort to the family.”

The learned Judge also determined that the Plaintiff who had sought a declaration of title to land had failed to prove the boundaries and identity of the land he sought title for. NORTEY (NO.2) VRS AFRICAN INSTITUTE OF JOUNALISM AND COMMUNICATION [2013-2014]1 SCGLR 703; KWABENA VRS ATUAHENE [1981] GLR 136; ANANE VRS DONKOR [1965] GLR 188 cited.

The Decision of the Court of Appeal

Affirming the findings and conclusions of the learned trial Judge, the Court of Appeal agreed with the Plaintiff, as the trial Judge had, that, families at Janga owned lands. This was however usufructuary interest in such lands. Contrary to the Plaintiff’s contention however, the Court of Appeal affirmed the trial Judge’s position that despite the family ownership system, with regard to land for development purposes, whether it was a family land or skin land, it was the chief, in this case the Nayiri who alienates. At Page 388-389 of the record, Ofoe J.A. who authored the decision of the Court of Appeal observed:

“The record of appeal provides support for this view of the trial Judge that when we consider evidence in relation to establishment of the market by the District Assembly, Dr. Mensah’s Mill Project, Nasia Rice, Government Rive Project and the construction of the Regional Hospital, all of which were granted by the Nayiri. There is sufficient evidence before the Court that all these were granted by the Nayiri and not the families on whose lands these developments projects were executed. The families where appropriate were compensated.”

Addressing the Plaintiff’s further contention of the usufruct’s unlimited competence to alienate land without reference to the allodial owner citing such decisions as THOMPSON VRS MENSAH [1957]3 WALR 3240, NUNEKPEKU VRS AMETEPE [1961] GLR 301, KOTEI VRS ASERE STOOL [1961]1 GLR 492, AWUAH VRS ADUTUTU & ANOR [1987-88]2 GLR 191, the Court of Appeal questioned whether the authorities spoke in general terms. To their Lordships, customary law was reputed to vary within tribes and ethnic groups. Further, they posited:

“In any case these authorities that recognize the usufructuary interest owner’s right to alienate land limits this right to the paramount interest of the allodial overlord. That is why cases like Thompson vrs Mensah (1957) WALR 240 and others emphasize that the usufruct’s dealing with the land should not prejudice the right of the absolute allodial owner. His overlordship should be recognized and that includes its right to exact customary performances. How can it be argued that the overlord’s right over the usufruct should not include the overlord making grants of even lands owned by the usufruct where development of the community is concerned?”

Their Lordships of the Court of Appeal also affirmed the holding of the trial Judge that the Plaintiff failed to prove the boundaries and identity of the land.

The Plaintiff’s further appeal in this Court is on the following two grounds:

That the judgment is against the weight of evidence

The trial High Court and the Court of Appeal both erred in law when they held that the chief or skin could take the freehold interest of Appellant’s family land without their consent.

Counsel for the Plaintiff opted to argue the two grounds of appeal together for which purpose Counsel elicited a single issue for determination. The issue he formulated was this; whether the skin in the Janga Traditional Area can alienate land for development purposes without the requisite consent of the family which had acquired proprietary interest in the land.

According to Counsel, the overwhelming evidence on record was that the disputed plot of land formed part of the land over which the Plaintiff’s family has usufructuary title. He had earlier described the interest of the family as allodial. As if to realize that that position was untenable and of course it was, counsel turned to argue on the basis of usufructuary interest of the Plaintiff’s family.

He contends that there was a line of decided cases on the customary law principle that the usufruct was regarded as the owner of the land with the authority to alienate any part of it to any person provided the title of the allodial owner was recognized. OHIMEN VRS ADJEI (1957)2 WALR 275 MANSU VRS ABBOYE (1982-83) GLR 1313; AWUAH VRS ADUTUTU & ANOR (1987-88)2 GLR 19; JANET NANA KONADU VRS NANA KOFI FRIMPONG, Civil Appeal No. J4/33/2021 dated 8th December 2021 cited. He submits that the allodial owner, in this case the skin had no authority to make the alienation to the 1st and 2nd Defendants without the consent of the usufruct.

Counsel opposes the view taken by the Court of Appeal that the decided cases were not of general application and that they were to be applied in the context of the custom of parties. He submits that customary law cannot deviate from established principles of law. For him, customary law must conform to established principles of law to ensure that decisions are not repugnant to natural justice, good conscience, equity and fairness.

Counsel further disagrees with the position of the Court of Appeal that since the land was being granted for development purposes, it required no consent of the Plaintiff’s family. He in the first place disagrees that the construction of a telecommunication mast constituted a community development project. He thinks this was a private commercial arrangement which fundamentally benefits those who mounted it unlike such projects as markets, hospitals public roads schools recreational parks etc.

According to Counsel, even if the mast were to be a development project, no form of development project overrides individual or family interests in any land for which reason the chief could take over and alienate same. DICK YAW NSIAH VRS NANA MBEAH, Civil Appeal H1/09/16 dated 8th June 2016 C.A cited.

Responding, Counsel for the 1st Defendant points out that, from the evidence the telecommunication mast was at a market area where no member of the Plaintiff’s family was in occupation or possession of. The land had been given out to the District Assembly for the construction of the market because market was understood to be a development project. The 3rd Defendant could therefore deal with the land without the consent of the Plaintiff’s family. In the view of Counsel, the Plaintiff’s family had acquiesced in the use of the land. AGO SAI VRS KPOBI TETTEY TSURU [2010] SCGLR 762 cited.

Counsel also argues that the Plaintiff was unable to prove the identity and boundaries of the land as the trial Court and the Court of Appeal determined, a point, Counsel for the Plaintiff did not address in his statement of case.

Resolution

Now, the evidence shows that the land on which the mast was constructed was not a farmland. PW1 Fuseini Zacharia stated under cross-examination that the mast was within the market. The land therefore fell in a development area, what could be called a development land or an “outskirt land” by Ollenu J (as then was) in the case of OBLEE VRS ARMAH (1958) 3 W.A.L.R 485. The Plaintiff himself claimed to have put up a building on the land which fell into ruins. He also said his family gave out land at the place for the local market. Again, according to him there was a Teacher’s Quarters on a portion of the land. I am satisfied that the concurrent finding of the lower Courts that the telecommunication mast is on the market land is supportable.

I also hold that the grant of the land was for a development purpose. The contention of Counsel for the Plaintiff not accepting the mast as a developmental project because it was constructed by a private business entity to further its business is untenable. The point of significance, I suppose, is the fact that the project was to impact positively on the quality of life and enhance the standard of living of the people irrespective of whether it was state or private funded. A communication mast to improve the communication needs of the people of the community in this age of information and communication technology cannot be any less developmental. Today, almost every Ghanaian adult uses a mobile phone and associated services. The Plaintiff himself must have been a direct beneficiary of the mast. It does not require only projects initiated and funded by the state to be developmental. If it were so, how would donor-funded projects be classified?

The learned trial Judge was satisfied as a matter of law that in the Janga traditional area, the customary practice was for the chief to allocate land for development purposes even without the consent of the usufruct. The learned Justices of the Court of Appeal agreed. They considered evidence such as that in relation to the establishment of the market by the District Assembly, Dr. Mensah’s Mill Project, Nasia Rice, Government Rice Project and the construction of the Regional Hospital, all of which were granted by the Nayiri to come to that conclusion. Indeed, PW1 admitted the following under cross-examination:

“Q.As an elder of Soo Naa, you are aware that all payments in respect of lands goes to the Soo Naa.

A.They only go and inform the Soo Naa about the land and he would ask whether the owner of the land has been informed.

Q. Dr Mensah Mill Project, Nasia Rice, Government Rice Project all these allocations were done by the Soo Naa and granted leases.

A. Yes it was Soo Naa who did

Q. I put it to you that in the entire Mamprugu, it is only the Nayiri and sub-chiefs who grant lands and not families

A. Yes, that is so.” [Page 194-196 ROA]

The case of SAIBU VRS MAHAMA [1967] GLR 506 involved a building plot situate at Walewale within the Wungu Division of the Mamprusi Traditional Area, the same traditional area in which the subject land of this dispute was situate. Even though the contest did not involve a family, the question remained who the appropriate authority was, according to the Mamprusi custom and usage to alienate the subject building plot in the area. Was it the Wunaaba (the divisional chief to the Nayiri) or the Duranaa (the sub-divisional chief)? The decision of the Court of Appeal coram OLLENU, APALOO and LARSEY JJA is significant. Ollenu who delivered the judgment of the Court found at page 511 of the report:

“Upon consideration of the totality of the evidence given for both sides, it is made abundantly clear that the whole evidence proves one and only one custom, namely, that the Walewale lands, by virtue of the facts that they are attached immediately to the subskin, the Duranaa skin, are at one and the same time lands of the Wunaaba, i.e. of the divisional skin of Wungu and at the same time are lands of the paramount skin, i.e. the Mamprugsi skin of the Nayiri. But the proper person to make valid grants of those lands is the occupant of the Walewale skin, i.e. the Duranaa.”

Counsel for the Plaintiff contests the view taken by the Court of Appeal that such decided cases as OHIMEN VRS ADJEI (1957)2 WALR 275 MANSU VRS ABBOYE (1982-83) GLR 1313; AWUAH VRS ADUTUTU & ANOR (1987-88)2 GLR 19; JANET NANA KONADU VRS NANA KOFI FRIMPONG, were not of general application and that they were to be applied in the context of the custom of parties. In Counsel’s view customary law cannot deviate from established principles of law.

I think the learned Justices of the Court of Appeal were right on their position. They are vindicated by the provision in article 11(3) of the Constitution which defines customary law as; “For the purpose of this article, “customary law” means the rules of law which by custom are applicable to particular communities in Ghana.”

The constitutional definition of article 11(3) implies that customary law bears the character of changing from one traditional community to another. Indeed, customary law is not monolithic. It takes its character and nature from the community under reference. They are not a creature of general principles. In the words of one expert; “Work which sets out to state customary law of a nation solely on the basis of rules of principles enunciated by the courts will be flawed in not taking practised customary law in to account”. See Joshuah Aryeh: Customary law’s Unsteady Stride Forward 1996-97 UGLJ 157-168. And as the Privy Council held in the case of ELACO VRS OFFICER ADMINISTERING THE GOVERNMENT of NIGERIA [1931] AC 662 at 673:

“It is the assent of the native community that gives custom its validity and therefore barbarous or mild, it must be shown to be recognized by the native community whose conduct it is supposed to regulate.”

It seems to me that the so called established principles in the cases cited by Counsel for the Plaintiff must be applicable in presumptive terms. That is to say, they are of general application where there is no evidence of a specific practice and usage of a particular community. But where, as here, there is evidence of a specific practice and usage, the general principles must give way. This, I think is implicit in the definition provided in article 11(3) of the Constitution. In my considered view, to apply general principles in the face of an established peculiar practice of a community will offend the letter and spirit of article 11(3). Consequently, the cases of OHIMEN VRS ADJEI (1957)2 WALR 275 MANSU VRS ABBOYE (1982-83) GLR 1313; AWUAH VRS ADUTUTU & ANOR (1987-88)2 GLR 19; JANET NANA KONADU VRS NANA KOFI FRIMPONG and others in that line ought to sit well with article 11(3) and must be applied with the provision in mind.

There is abundant case law to show situations where, due to evidence of a peculiar local custom or usage, the Courts have not applied general principles. One such case was OFORI VRS APPIAH [1987-88]2 GLR 583 where per holding (1) of the headnote of the report, the Court of Appeal per Francois JSC, Ampiah and Lamptey JJA held:

“The general customary rule permitting the tenure of vacant stool land by a subject of a stool was inapplicable to the Ahafo lands under the Min Stool. The peculiar control of the Mimhene over those lands derived historically from the prowess of the people of Mim in abating threats to Ashanti from that area and the role of Mimhene as a scout at an Ashanti outpost. Consequently, neither the allodial owner, the Akwaboahene, nor the Asantehene could by-pass the Mim stool in the alienation of Mim stool lands. Similarly, neither the sub-stools of Ayomso nor Goaso could encroach on neighbouring territory or alienate Mim stool lands. Accordingly, since the plaintiff obtained his grant of the land in dispute from the Ayomsohene, he acquired to title to that land.”

Also in GEORGE ODAMTTEN & ORS VRS WUTA-OFEI & ANOR Suit No. J4/20/2016 dated 12th December 2018, this Court decided contrary to general principles that by the customary law of the Gas of Osu, female children of a deceased original owner of property who inherit the property cannot pass on their interest to their descendants, thus the property reverts to the family of the deceased original owner. See also LARKAI VRS AMORKOR [1936-39]1 WACA 323-331; AMARFIO VRS AYORKOR [1954]14 WACA 554.

I agree with the two lower courts when they applied the local custom that shows that the chief was the proper authority to alienate land for development purposes in the Janga Area under Mampurusi custom even without the consent of the usufruct.

I must state in clear terms that land for development purposes is not dealt with the same as land for farming. And so the practice found by the Courts below is line with the well-known traditional approach to treatment of land meant for farming and agricultural purposes differently from that for building or development. It has always been the case that in terms of customary land management, land for farming and agriculture has been administered differently from that for building and other development purposes. In OLLENU’S PRINCIPLES CUSTOMARY LAND LAW IN GHANA, the learned author has observed:

“The procedure by which a subject acquired title to stool land which he required for building is different from that by which he acquires a piece of the stool’s rural or agricultural land. The administering authorities are the same, but in the case of building land or urban land it is generally by express or actual grant to ensure steady development, and that each subject gets the extent of land which is reasonably necessary for his requirements.”

The author cites the case of OBLEE VRS ARMAH (1958) W.A.L.R. 484 where the principle was stated as follows:

“It is different in the case of lands adjoining the town which are ready for development for the extension of the town; the suburban areas which in Christianborg and other Ga towns are called outskirt lands. In the case of such lands, express permission of the stool is always required, and limits are set to the extent of land which one subject may occupy, in order to maintain proper administration of the land, and ensure that each subject who requires land to build gets his fair share. It is in the case of such grants that the area granted to the subject is demarcated.”

In AMATEI VRS HAMMOND & ANOR [1981] GLR 300 Edward Wiredu J (as he then was) took the point further when delivered himself as follows:

“There remains the last issue raised. That is the scope and extent of the right enjoyed by a stool-subject in respect of vacant stool land. There is a common area of agreement among text-writers and the case law that there exists an inherent right of a stool-subject to occupy any vacant stool land and that such occupation is deemed to be an implied grant by the stool and that whilst in such occupation, the subject is entitled to alienate such interest as he acquires in that land and is also entitled to its protection even against the stool: see Akwei v. Awuletey (1960) GLR 231, S.C. and Seraphim v. Amua-Sakyi (1962)1 GLR 328. Whilst I accept as sound the customary law principle as enunciated above although the absolute title in land is vested in the stool any conveyance made by the stool of any such land in the occupation of a subject is void, I am of the view some exceptions should be created in this area of our customary law practice to reflect present socio-economic and political changes in this area of our customary law. Where a subject of a stool requires land for farming whether arable or for animal husbandry, and engages himself in commercial mechanized farming, he should be required to obtain an actual grant in the form of a lease. If such a person with the necessary resources and equipment is permitted to rely on this inherent right to clear miles of stool land, it would not be long when other subjects of the same stool would be deprived of any share of the land. It is in this same light that I consider that the authorities of Donkor v. Danso (1959) GLR 147 and Ashiemoa v. Bani (1959) GLR 130 should be looked at again. Where an outskirt land in possession of a subject is required for general development of the community such as for building a school, lavatory etc., or where as in this case, the area already in occupation of the plaintiff had been carved into building plots for the use of the general community and the complete lay-out of the area has changed, I am of the view that the subject’s prior occupation should give way, subject of course, to preference being given to him in the allocation of such plots if he requires one to build or in the alternative another suitable area given to him in place of the one lost and his consent should not be a prerequisite to the stool taking over control of such an outskirt land. Otherwise it would mean that his prior occupation could hamper all future developments of the area occupied by him. I therefore hold in my judgment that the plaintiff lost his prior occupation right to the stool as a result of new lay-out. The whole area including his portion was carved into building plots for the whole of the Ashanti Blohum community. I therefore reject his contention that it was incompetent for the stool to make valid grants of any portion of the land he originally occupied for farming.”

I wholly endorse the view expressed in the decision for its forward-looking prescription. Our courts’ unpreparedness to subordinate the interests of the usufruct to that of the allodial owner must be moderated with exceptions such as where land is required for more productive purposes including alienation for a development to meet the collective needs of the community. Management of stool land for development purposes cannot be left in the hands of the usufruct. The Stool or skin has always been recognized as the appropriate authority to take that charge. For, from time immemorial traditional authorities have been in charge of ensuring fair distribution of land and land resources among the subjects. Generally, the institution of chieftaincy has been in charge of land resource mobilization and management to develop their communities. They have ensured that resources are both fairly mobilized and distributed for the development of the communities. The framers of the Constitution had this in mind when they provided in article 267(8) thus:

“The Lands Commission and the Administrator of Stool lands shall co-ordinate with all relevant public agencies and traditional authorities and stools in preparing a policy framework for the rational and productive development and management of stools lands.”

The provision does not envisage the involvement of an individual or family usufruct taking charge of land administration in this country. Any practice that places the individual or family usufruct in charge of management of stool land offends the letter and spirit of the Constitution and must be rejected. Placing the stool or skin in this charge I think, highlights the true nature of the allodial interest in land which is in reality, the interest of the community.

The stool or skin and its occupant hold the land in trust for the community. As an author has espoused; “The allodial interest in land is vested in communities represented by stools and sub-stools in the Akan and some Ga communities, and by skins in the Northern Region. Chiefs who represent stools and skins execute judicial, governance and land management function.” Kasanga, K and Kotey, N. a 2001. Land Management in Ghana: Building on Tradition and Modernity, International Institute for Environment and Development, London. Page 13. This is in accord with article 267(1) which states thus;

“All stool lands in Ghana shall vest in the appropriate stool on behalf of and in trust of the subjects of the stool in accordance with customary law and usage.”

It can never be the case as Counsel for the Plaintiff has argued that the developmental needs of the community should prevail over the solitary interest of the usufruct when the allodial interest, in reality the communal interest, is absolute and superior to the usufruct. Whilst at customary law, the usufructuary interest ought to be protected, even against the allodial owner, the present case presents a situation that deserves an exceptional approach. The Plaintiff essentially requests this Court to nullify a grant by the overlord of a plot of land which forms part of a market and on which has been constructed a telecommunication mast on the basis that the land used to form part of his farmland. This prayer defies any sense of progressive approach to land management and should not be countenanced by this Court.

Customary law and its principles are not static. They are dynamic. Inherent in it is its constant evolution and adaptation to societal changes and demands of contemporary times. The general laws of the land and indeed the Constitution itself recognize customary law as a living tradition that constantly evolves with the times. Advocates of customary law and its precepts must not doze off to social advancement and its calls. The attitude of our courts have paid due regard to this thinking. It was along this learning that in the case of FRIMPONG VRS POKU (1963)2 GLR 1 this Court per Akuffo Addo JSC (as he then was) observed thus:

“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 the days gone by when land was plentiful land 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 the 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 be demarcated for the subjects of the stool.”

In recent times there is what appears a more compromise practice in certain areas in Ashanti and other traditional areas where, when a land becomes an ‘outskirt land’ or ‘development land’ the stool and the family usufruct agree together, engage surveyors of the planning authorities to prepare a layout and demarcate plots after which certain percentages are shared between the stool and the usufruct and other portions reserved for communal needs like school, health, parks and social centers. This practice which I take judicial notice of, is forward-looking and commendable as it strikes a fair balance between the absolute interest and the usufructuary thereby ensuring equitable distribution of land for development purposes. The practice is by no means affront to customary law principles. It is, as the Gospel says of Christ, to fulfill the law of the old testament and the prophets but not to destroy it.

It is for the foregoing reasons, aside the uncontested holding of the two lower courts that the Plaintiff did not prove the identity and boundaries of land with the result that the holding stands, that I dismiss the appeal as wholly unmeritorious.

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

COUNSEL

KWADWO ADDEAH-SAFO ESQ. FOR THE PLAINTIFF/APPELLANT/APPELLANT

KWAKU YEBOAH APPIAH ESQ. FOR THE DEFENDANTS/RESPONDENTS/

RESPONDENTS ISAAC OKYERE-KUMAH ESQ., JOSPHINE ABUTIATE AND AKUA ADUWAA BRIFO ESQ.