IN RE THE PUBLIC LANDS (LEASEHOLD) ORDINANCE AND IN RE LAND ACQUIRED AT ACCRA FOR PUBLIC WORKS DEPARTMENT WORKSHOP OSU MANTSE & ORS. (CLAIMANTS) [1959] GLR 163

CASES REFERRED TO

(1) Golightly & anor. (and fifteen consolidated cases) v. Ashrifi & ors. (14 W.A.C.A. 676);

(2) Akwei & anor. v. Awuletey & anor. (Suit No. 217/1956); judgment delivered by Land Court the 18th March, 1958.

(3) Ohimen v. Adjei (2 W.A.L.R. 275);

(4) Thompson v. Mensah (Civil Appeal No. 54/1957); judgment delivered by Court of Appeal the 28th November, 1957;

(5) Baidoo v. Osei (Land Appeal No. 21/1957); judgment delivered by Land Court the 10th December, 1957.

(6) In re land at Nkwantamang, etc., Owusu & anor. v. Mantse of Labadi (1 W.A.C. A. 278);

Public Lands Ordinance, sections 11 and 12, and Public Lands (Leasehold) Ordinance, section 10, considered.

COUNSEL

1st Claimant in person. da Rocha for 2nd Claimant. Akufo-Addo for 3rd and 4th claimants.

JUDGMENT OF OLLENNU J.

This matter came before the Court under section 13 of the Public Lands (Leasehold) Ordinance, for the Court to determine which of the claimants is (or are) entitled to compensation for a piece of land acquired by the Government under Certificate of Title granted by the Court on the 1st February, 1955, by virtue of section 8 of the said Ordinance.

The principal claimants are the 1st claimant (the Osu Mantse) and the 3rd claimant (the Acting Gbese Mantse, who claims on behalf of the Ga Stool, the Gbese Stool and the Korle We Stool). The claims of these two groups are made with reference to a boundary fixed between them in the judgment of Jackson J., delivered on the 31st May, 1951, in suits popularly known as the Kokomlemle Consolidated Suits, and confirmed by a judgment of the West African Court of Appeal (14 W.A.C.A. 676). So far as the dispute between these two principal groups is concerned, therefore, the matter is res judicata.

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The 2nd claimant, Nii Yeboa Nortey, claims in the dual capacity of head of the Nii family and Dsasetse of Ashanti Blohum, Osu. He bases his claim upon an alleged grant made by the Osu Stool to his ancestor, one Nii Tettey Ashong, of lands known as Kotobabi lands, of which the land acquired is a portion. He says that the alleged grant was made as a reward for services rendered by the said Nii Tettey Ashong to the Stool and people of Osu in the Gua (Cape Coast) War, and in the Katamanso War. The alleged grant, if proved, can only be effective as regards Osu Stool Lands, and not otherwise; consequently the 2nd claimant’s claim, if maintainable, can only be in respect of that portion of the land acquired which can be shown to be on the Osu side of the boundary fixed by the aforesaid judgment. Therefore, whether as a subject or as a grantee of the Osu Stool, the 2nd claimant is estopped by reason of the aforesaid judgment from claiming compensation in respect of any portion of the acquired land falling on the Accra side of the boundary.

It now remains to decide the dispute between the 1st and the 2nd claimants as regards the claim to compensation in respect of the portion of the Osu Stool land acquired. The 2nd claimant represents a family, or recognised group, in the Ashanti Blohum (Ashanti Quarter) of Osu. As Dsasetse of Ashanti Blohum he is head of that quarter, and apart from the Mankralo of Osu himself, he is the most important constituent of the Mankralo’s Stool. He is bound by any decision affecting the Mankralo Stool as to lands of the Osu Stool under the control and management of the Mankralo Stool.

Osu Stool lands, known as Mamobi-Kotobabi-Dzorwulu lands, were the subject of a dispute between the Osu Stool and the Osu Mankralo Stool in Suit No. 217/1956 (Akwei & anor. v. Awuletey & anor.). In the judgment delivered in that suit on the 18th March, 1958, the rights and title according to native custom of the said two stools, and the interest of subjects of the Osu Mankralo Stool in these lands, were clearly set out. The decision in that case is binding on both the 1st and 2nd claimants.

It was held in that case that while these lands (the Mamobi-Kotobabi-Dzorwulu lands) are under the care and control of the Mankralo, who is the proper authority to make, with the concurrence of the heads of the villages, customary grants of portions of it to subjects or strangers, no valid sale or absolute alienation in any shape or form could be made of any portion of the said lands without the knowledge and concurrence of the Osu Stool.

On the issue of the express grant of the Kotobabi land alleged to have been made to Nii Tettey Ashong, the 2nd claimant admitted that, in order to be valid, such a grant by the Osu Stool and people to

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his predecessor, would, by custom, have had to be made through the Osu Mankralo, the immediate Stool through whom he serves the Osu Stool. There was no proof that the alleged grant was made in compliance with that custom—the mere allegation that the grant was made by the whole town, including the Mankralo, is not enough proof of such a gift. I find that the 2nd claimant has failed to prove the express gift as alleged.

But that finding does not mean that the 2nd claimant had no right, title or interest in the land. As the 1st claimant suggested to the 2nd claimant in cross-examination, and as was admitted by the 2nd claimant, a subject of a stool has an inherent right to be granted portions of the stool land; that is to say, the subject has a right to occupy any vacant portion of the stool land. The grant may be express or implied. Occupation of stool land by the subject (whether an individual, or the head of a family with members of the family, or the head of a recognised section of the community with members of that section or community) is presumed by custom to be upon a grant of that land from the Stool to the individual, family or section in such occupation.

The subject who has acquired such a possessory title in stool land is entitled by custom to alienate that title (Ohimen v. Adjei, W.A.L.R. 275; also the judgment of the Court of Appeal in Civil Appeal No. 54/57, Thompson v. Mensah, delivered on the 28th November, 1957; and the judgment of the Land Court in Land Appeal No. 21/1957, Baidoo v. Osei, delivered on the 10th December, 1957). But the right to occupy stool land has as its corollary the stool’s right to exact customary services and homage from the subject at all times. Therefore an alienation by the subject of his usufructuary title carries with it an obligation upon his grantee to recognize the title of the Stool in the land, and to perform the customary services which the subject is liable to render to the Stool.

Where the grantee or transferee from the subject is himself a subject, there are no complications. But where he is a stranger, i.e. a non-subject, it may sometimes be undesirable or impracticable that he should be admitted to actual performance of the customary services to the Stool. For example, in an Akan State it would be undesirable that a stranger belonging to a tribe whose custom is circumcision should perform customary services to the Stool; conversely, in a Ga Adangbe or an Ewe State, that a stranger whose custom is non-circumcision should perform the customary services to the Stool. In either case it would be sacrilegious, and would mean desecration of the Stool to admit the stranger to the performance of

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the customary services. For this reason, unless the stranger who is a subject’s grantee is admitted by the Stool to actual performance of the customary services, or his occupation without performance of such services is acquiesced in by the Stool, the obligation which devolves upon the stranger upon such alienation, is commuted by the Stool to a tenancy agreement of one form or another, or to the payment of a composite sum usually (but erroneously) called purchase price.

Now compulsory acquisition of land, either under the Public Lands Ordinance or under the Public (Leasehold) Ordinance, is not the type of alienation which can carry with it an obligation upon the acquirer, viz. Government, to perform customary services to the Stool when required. Under Section 11 of the Public Lands Ordinance the acquisition operates “to bar and to destroy all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever of and in the lands” acquired; and in virtue of section 12 a Certificate of Title issued by the Court in respect of the land acquired confers upon the Governor-General to whom it is issued “an absolute and indefeasible right to the lands . . . free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever.” Similarly, section 10 of the Public Lands (Leasehold) Ordinance provides that a Certificate of Title granted by the Court under that Ordinance shall “confer upon the Governor-General . . . an absolute and indefeasible right to the land . . . free from all adverse or conflicting rights, titles, interests, trusts, claims and demands whatsoever.” That means complete termination of the right of the Stool to demand customary services from the person for the time being in possession of the land, i.e. Government.

Now where stool-land is to be granted free from all claims and demands whatsoever, the only authority which can make so wide a grant is the Stool, not a subject. It is the Stool’s rights to service in respect of the land that are being extinguished, and only the Stool can dispose of its own rights. In the case of compulsory acquisition of land, the place of a grant by the Stool is taken by the Court’s Certificate of Title following an expropriation of the Stool by operation of the relevant statute. But though in such a case the Stool does not grant the land, nevertheless it remains appropriate that the Stool should be the recipient of the compensation. And so it has been held that the proper person to receive compensation for land compulsorily acquired under the Public Lands Ordinance is the occupant of the Stool (in re Land at Nkwantamang etc.: Owusu and anor. v. Mantse of Labadi (1 W.A.C.A. 278)).

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Acquisition under either of the two Ordinances determines the rights of the subject in the land acquired, or deprives the subject of his possessory title in it. Such compulsory deprivation of the subject of his usufructuary title to the land is an important element in the determination of the amount of compensation payable by the Government for such acquisition. It follows that the subject is entitled to receive from the Stool a share of the compensation as nearly as possible in the proportion which the loss of possession bears to all other incidents of the acquisition.

The quantum, however, of the usufructuary owner’s share of the compensation is not an issue in acquisition proceedings. The only issues which the Court is called upon to determine in such proceedings are:

(1) Who is, or are, entitled to be paid compensation in respect of the type of interest acquired?

(2) If more than one claimant are entitled, in what proportions are they entitled? and in some cases.

(3) What is the quantum of compensation payable in respect of the whole acquisition?

In the present proceedings the Court is not called upon to determine the third of these issues, i.e.

quantum of the compensation in respect of the entire land acquired. It is called upon to determine who is, or are, entitled to receive the compensation.

The first witness for the 2nd Claimant admitted that, as far as the portion of the acquired land falling on the Osu side of the boundary is concerned, the 1st Claimant is the proper person entitled to receive the compensation. That answer by itself determines the dispute between the 1st and the 2nd Claimants.

It is admitted on behalf of the 3rd Claimant and those whom he represents that before the acquisition his Stool (and those whom he represents) had alienated to the 4th Claimant their right, title and interest in their portion of the land acquired. The 3rd Claimant, the Court is informed, has therefore agreed with the 4th Claimant that a consent order he made to the effect that the 4th claimant is entitled to be paid three quarters of any compensation payable to the 3rd Claimant for the land acquired.

I find, then, that compensation for the land acquired is payable to the 1st, 3rd and 4th Claimants, and by consent I order that one half of the total compensation be paid to the 1st Claimant, and that the other half be paid to the 3rd and 4th Claimants together. I further order that one quarter of the latter half be paid to the 3rd Claimant, and three quarters to the 4th Claimant.