KWARTENG AND OTHERS v. AGYARKO AND OTHERS [1968] GLR 292

DIVISION: HIGH COURT, ACCRA

DATE: 22 MARCH 1968

BEFORE: KINGSLEY-NYINAH J.

NATURE OF PROCEEDINGS

ACTION by plaintiffs for (a) declaration of title to land, (b) the sum of £G1,321 and (c) recovery of possession. The facts are fully set out in the judgment.

COUNSEL

D. K. Osei for the plaintiffs.

A. Puplampu for the defendants.

JUDGMENT OF KINGSLEY-NYINAH J.

By consent of both counsel and parties herein, this particular suit No. L.202/63 was taken as a test case in place of each and all of the others: namely, suit Nos. L.203/63 and L.204/63. And the second plaintiff herein, again by consent, stood in for the plaintiffs in the other causes. The same went for the defendants Kwabena Agyarko, Kwadwo Kwampa and J. K. Duah, the first of whom, by agreement and consent, stood in as defendant for and on behalf of the others in the other suits. This was an action whereby the plaintiffs, (upon whose parcels of land the defendants had lived and farmed since 18 May 1954) claimed from and against the defendants, as per the writ of summons filed herein:

(i) Declaration of title.

(ii) The sums of £G486 0s. 0d.(suit No. L.202/63) and £G243 0s. 0d. (suit No. L.203/63) and £G592 0s. 0d. (suit No. L.203/63)—all totalling £G1,321 0s. 0d. and representing “half shares of cocoa proceeds plucked from the said land by the defendants” and due and owing to the plaintiffs as landlords.

(iii) Recovery of possession.

Each and all of the portions of land herein is and are upon Pankese stool land and is and are situated at a place commonly known as and called Jadeso. And there is no dispute in this case as to the fact that the plaintiffs herein acquired the said lands absolutely by purchase from the Pankese stool, way back in 1925.

The case of each and all of the plaintiffs in these suits was specifically set out in the statements of claim filed in support of the writs

[p.295] of [1968] GLR 292 of summons, the former documents setting out, clearly the history of the portion of land in dispute and the relationship of the parties herein, that relationship being founded in the customary tenancy of abusa, and governed by a written agreement dated 18 May 1954.

By paragraph (3) of the plaintiffs’ statement of claim, the terms of the written agreement of 18 May 1954 (tendered as exhibit A) were that each and all of the defendants would take and cultivate the Jadeso lands on the following terms:

“(a) That the defendant would cultivate the land and plant cocoa trees thereon at his own expense.

(b)That he would occupy the said land for a period of four years free without accounting to the plaintiffs from 18 May 1954.

(c) That the defendant would be entitled to one third of the proceeds of his labour . . . but not to the land.

(d) That the defendant paid the amount of £G10 to the plaintiffs as the customary or stamping fee of his occupation of the land.”

By subsequent agreement at an arbitration held in 1962, the parties herein shifted ground and varied the terms of the original agreement wherefore, instead of the defendants and the plaintiffs taking the proceeds of the farms in dispute in tripartite shares (two-thirds thereof going to the plaintiffs as landlords), the said proceeds were thenceforth “divided into two equal shares and the plaintiffs took one half and the defendants the other half share.” By that variation, also, the original and agreed period of four-year occupation free of accounting and of shares, was changed and “extended to six years.” While the defendants readily admit the background history and also accept the facts of the case as stated by the plaintiffs, they, at the very same time, stoutly dispute and reject the plaintiffs’ contention that they are entitled to the claim set out in their writ of summons and their statement of claim. By their statement of defence, filed for and on their behalf by their solicitor, the defendants joined issue with the plaintiffs, the defendants asserting, amongst other things, that:

(a) They were to account to the plaintiffs concerning the proceeds of the farms “four years after the cocoa started to yield.”

(b) That that period within which they were to account for the proceeds of their farms was later extended to “six years after the cocoa started to yield.”

(c) That far from the farms having yielded, for the seasons 1960-61; 1961-62 and 1962-63, 60, 160 and 120 loads of cocoa, as alleged by the plaintiffs, the yield was rather “respectively sixteen, nineteen and twenty loads” (suit No. L.202/63; [p.296] of [1968] GLR 292

“seventeen, 25 and 62 loads” (suit No. L.204/63) and “half a basketful, one basketful and two basketful.”

(d) That under and by virtue of the Rents (Stabilization) (Amendment) Act, 1963, the only rentals the defendants are liable to pay to the plaintiffs are those stipulated and provided for by the statute; namely five shillings per acre of land, and not the agreed half-share.

(e) That the plaintiffs instituted these proceedings without such good faith as should warrant the success of this action. In addition to their defence, the defendants also counterclaimed as follows, inter alia:

“(a) For a declaration that notwithstanding the terms of the abusa or abunu tenancy agreement . . .the defendant as tenant of the plaintiffs is liable to pay the plaintiffs by way of rent not more than five shillings per acre per annum in respect of his holding by reason of the provisions of the Rents (Cocoa Farms) Regulations, 1962 (L.I. 186), as amended by the Rents (Cocoa Farms) (Amendment) Regulations, 1965 (L.I. 382).” The issues for trial were therefore resolved as follows:

“(a) Whether or not the Rents (Stabilization) Act, 1962, is applicable to the land in dispute.

(b) Whether or not the said agreement entered into by the defendant is binding on him.

(c) Whether or not the plaintiffs are entitled to the reliefs sought.

(d) Whether upon a true construction of paragraph (3) of the said agreement the defendants were to account to the plaintiffs four years after the cocoa started to yield or whether the defendants were to account four years from the date of the said agreement.

(e) Whether the period within which the defendants were not to account which was extended by the plaintiffs in 1962 to six years has elapsed.

(f) If not, whether the plaintiffs have a cause of action.

(g) Whether or not the plaintiffs’ claims are caught by the Rents (Stabilization) Act, 1962 (as amended).

(h) Whether or not the plaintiffs have brought this action in good faith.”

At the trial Kwadwo Konadu (the second plaintiff) gave evidence for himself and for and on behalf of all the other plaintiffs in the

[p.297] of [1968] GLR 292 other similar suits. He testified that the first defendant, Kwabena Agyarko (and the others) are farming and cultivating his land at Pankese. That that parcel of land belonged to him by purchase from the Pankese stool from which he got the land upon which he has been since 1925.

Explaining how each and all of the several defendants came to be on his (plaintiff’s) land, Kwadwo Konadu testified as follows:

“In 1954 the defendants and others, Kwaku Dua (defendant in suit No. L.204/63), and Kwadwo Kwampa (defendant in suit No. L.203/63), approached me at Oyoko, near Koforidua, and asked me to give them portions of my land to farm and cultivate. I agreed and gave to them, as requested, portions of my land which they each and all cultivated and farmed. Immediately after my brother Kwasi Kwarteng (the first plaintiff herein) and I had shown to the defendants, the portions of land we had agreed to give them, we returned to my house where, after some discussions relating to the plots of land we had agreed to give to them, we prepared in agreement. The burden of our discussion and agreement was that we would permit the defendants to have the land for a period of four years after which they would have to share with us whatever they realised from the farms, the proportions being as to two-thirds for us and one-third for the defendants. To this arrangement the defendants agreed and consented. That arrangement was in respect of cocoa only. It was further agreed between us and the defendants, that whatever minerals were found upon the land, and all existing timber, cola nuts, palm trees belonged exclusively to us.” After testifying that the discussion of the terms of tenure, and the consensus of the defendants, all took place in the presence of certain named and specified people, and the plaintiff, Kwadwo Konadu, continued as follows: “The defendants sealed this arrangement with the payment to us, by each of them, of the sum of £G10 0s. 0d. each as customary drink.” The plaintiff then identified and tendered into evidence exhibit A, an agreement which he said embodied the discussions and agreement arrived at between the defendants and himself and his brother. It is dated 18 May 1954 and it is signed by the following persons: Kwasi Kwarteng, Kwadjo Konadu, Kwaku Adjei as donors; and Kwabena Agyarko as donee. It is significant to note that paragraph (3) of exhibit A clearly supports the evidence that the enjoyment of the proceeds after a period of four years was two-thirds to the plaintiffs and one-third to the defendants.

[p.298] of [1968] GLR 292

Continuing his evidence, the plaintiff, Kwadwo Konadu, testified that he and his brothers, the other plaintiffs, entered into separate agreements with each of the other defendants, Okoampa and Dua, on exactly the very same terms and conditions as shown upon exhibit A. This was neither denied nor disputed by the defendants herein.

The plaintiff Kwadwo Konadu testified as follows, under cross-examination:

“In all we made three separate demands upon the defendants for our two-third share. The first demand was made in 1958—the second was in 1960—and the third was in 1962 when the defendants refused to pay because of the government announcement . . .’, I prefer this as being much more reasonable and probable than the confused testimony the plaintiff gave in chief saying that their first demand was made in the year 1960. That could not have been because, according to him, the defendants pleaded the “government announcement” as their reason for refusing payment. That “government announcement” was the Rents (Stabilization) Act, 1962, which came into force and effect on 1 March 1962. I hold that that refusal by the defendants in 1958 to pay to the plaintiffs their agreed half-share of their harvest, was not justified, having regard to the clear provisions of exhibit A. But in view of the fact that the plaintiffs gave in to the defendants who prayed relief concerning that demand, I will not hold it against them, the said defendants. It was enough that the landlords had asserted their rights; it also lay in their bosoms to relax and to grant unto the defendants further respite, and even an extension of the original time agreed upon. It was a right and a power fairly exercised by the plaintiffs as landlords, and the relenting thereof ought not to be held against them as showing a violation, on their part, of the agreement exhibit A. From the evidence I am satisfied, and I find as a fact, that each and all of those three demands for shares were made by the plaintiffs as landlords upon the defendants as their customary tenants. The demands made by the plaintiffs were all properly made, and I hold that the defendants had neither warrant nor justification for refusing payment. The demands made as from 1962 were properly made by reason of the fact that they were not prematurely made. The reasons that the defendants assigned for their refusal, namely, that the government had announced the cessation of the systems of customary tenancy, that is to say, the abunu, the abusa, and the nto, ought not, therefore, to avail them. That “announcement,” in my view, certainly did not affect the agreements then subsisting between the plaintiffs and the defendants. [p.299] of [1968] GLR 292

In 1960, the four-year period of grace agreed upon by the parties had already elapsed, with two more years added on to it. The plaintiffs were therefore entitled to their two-third shares of the cocoa plucked and harvested by their tenants, defendants. According to the plaintiff, under cross-examination: “Agyarko started plucking cocoa on the land exactly four years after we had given the land to him.” That would fix the year at 1958. In all the circumstances of this case, I accept as a fact, and I find that the position regarding the relationship between the plaintiffs and the defendants was as explained by the Administrator of Stool Lands, namely that:

“the government announcement concerning abusa and other systems of land tenure affected only chiefs, their stools, subjects and members of the stools, and not persons or individuals who had bought or acquired land which said land they had in turn granted to others.”

The evidence in this case is strong and has stood unchallenged, that the plaintiffs did, in every fact and truth, purchase the large tract of land whereon the farms, subject-matter of these suits, are situate, from the Pankese stool. They have not been proved by the defendants to be either subjects of the Pankese stool, or members thereof. I accept the evidence of the plaintiffs and find as an unchallenged fact, that at all material times, the defendants, by their conduct, acknowledged the plaintiffs as their landlords. It is clear from the evidence that when the defendants refused to pay to the plaintiffs their two-thirds share of the proceeds of the farming, it was certainly not because they had any legitimate and sustainable challenge to pose against the plaintiffs’ ownership of the land, but rather because of the government announcement which, be it noted, was never to the effect that tenants such as the defendants were, should challenge their landlord’s right and entitlement to what was hitherto payable to them. What the government announcement did was merely to substitute the payment by tenants (to stool landlords) of the sum of five shillings per acre of land, for the payment of either one-third or two-thirds share of proceeds. A further fact which I find clearly proved is the variation of the agreement (sought by the defendants and consented to by the plaintiffs) whereby the land, subject-matter of these actions, was thereafter to be held not on a tripartite (abusa) basis, as before, but rather on the abunu system. It is of significance to note that the defendants’ prayer for the variation was accompanied by their apologies to the [p.300] of [1968] GLR 292 plaintiffs, and by their payment of pacification and other fees (including the sum of £G25 0s. 0d. being the plaintiffs’ out-of-pocket expenses consequent upon the defendants’ refusal to honour their agreement) to the very same plaintiffs who had complained to the chief farmer and other elders about their (defendants’) conduct and attitude. Whatever accounting there was to be gone into by the plaintiffs and the defendants; and whatever sharing of proceeds there was to be done; all this was to have commenced any time from the year 1960 to the year 1962. Six years from 1954 taking us to 1960, the season to be affected by the first demand and sharing would be, therefore, the 1960-61 season. And I accordingly so find and hold. Having so found, I consider as irrelevant the various excuses the defendants put forward in support of their refusal to pay to the plaintiffs their due shares of the proceeds. It is significant to note that the authenticity of the parties’ written agreement of 18 May 1954, was never challenged by the defendants who also never challenged any of its terms and conditions. When he gave evidence, Daniel Mensah (the plaintiff’s first witness), showed that before the document (exhibit A), which he made, was executed by the parties thereto, it was read over in English wherein it was written, and then interpreted to the parties in Twi. The parties agreed to the contents before they, and he also, signed it. He said, furthermore, that he also, that very day, 18 May 1954, prepared a similar agreement involving the plaintiffs and Kwaku Duah (the third defendant); and yet another between the plaintiffs and another person whose name he could not remember. Both those latter agreements, he said, touched and concerned the very same subject-matter as the very first document, exhibit A. When Jonas Edward Amoafo-Smart, the Administrator of Stool Lands, stationed at Kibi, testified as the plaintiff ‘s second witness, he described the functions of his department as being concerned with the collection of all rents accruing from stool lands in the Kibi area. He said the lands and farms in dispute and situated in the Pankese area, are within his bailiwick, and that farmers on stool lands pay tolls of five shillings per acre to the Administrator of Stool Lands. Testifying about an inquiry made by Kwadwo Konadu, the second plaintiff herein, as to whether lands purchased outright came under the Administrator of Stool Lands, the witness said: “I told him that such lands did not. I told him that because we were not concerned with lands that had been bought and sold outright. Our main and only concern was over stool lands.” [p.301] of [1968] GLR 292

I accept that piece of evidence as showing that all that the government meant and intended by that “announcements” was certainly not that the abunu or the abusa systems of land tenure or both were either to be or were being, or had been, abolished, but rather that anyone who was farming upon any stool land would now be expected to pay the sum of five shillings for every acre of land being farmed and cultivated by him. Farmers not cultivating stool lands, but private lands under the abusa or the abunu system were to continue under that system. The government “announcement” I find, was never meant or intended to touch, affect or change the relationship between individual non-subjects of a stool and their private and individual landlords, the very relations existing, at the time of that announcement, between the plaintiffs and the defendants herein. Opanin Addo Kwadwo, an old man, was a very difficult witness, the burden of whose evidence, as the plaintiff’s third witness, established the private ownership by the plaintiffs herein of the land in dispute. I am satisfied and convinced by his evidence that although the land in dispute herein is situate upon Pankese stool land, these portions of land have never, over the period covered by the transactions herein, ever been the property of the Pankese, or any other, stool. These parcels of land whereon the defendants are now living and farming, have at all material times been the private and self-acquired properties of the plaintiffs, whose direct tenants, and not subjects, each and all of the defendants herein have, at all material times, been. It is significant to observe that the title of the plaintiffs herein, and their ownership of the parcels of land, subject-matter of these proceedings, was never in dispute. What is at issue is what interest the plaintiffs, as landlords, since that government announcement, have in the proceeds of their tenants’, “the defendants,” labour.

While the plaintiffs assert that they are entitled to a one-half share of the proceeds in accordance with the native customary tenure of abunu, following a variation agreed upon by both themselves and the defendants, the defendants assume a contrary posture. They, admitting the variation from abusa (one-third share) to abunu (half-share), insist that a two-year extension of the original term was granted them by the plaintiffs who also agreed to a moratorium of four years after which they were then to commence paying to the plaintiffs, the agreed half share of the proceeds. The defendants also insist that the only payments now due from them to the plaintiffs are the five shillings per acre, pursuant to the government announcement. It is a fact and circumstance of great significance that throughout the whole of this trial, none of the parties herein, has been shown to

[p.302] of [1968] GLR 292 be a subject, or subjects, of the Pankese stool, or members thereof. This supports my view that the Rents (Stabilization) Acts called in aid by the defendants cannot avail them.

Standing by the agreement and the consent of the parties hereinbefore mentioned, Kwabena Agyarko, the defendant in this suit, gave evidence on his own, and for and on behalf of each and all of the other defendants, pursuant to the agreement that this suit (No. L. 202/63) be taken as a test case.

Opening his defence, Kwabena Agyarko testified that some ten or eleven years ago, the plaintiffs gave to himself, and to each and all the other defendants, parcels of virgin and uncultivated forest land upon the understanding and agreement that each and all of them, the defendants, held, occupied and farmed those parcels of land unto the plaintiffs as abusa tenants. The defendant, Kwabena Agyarko, admitted and confirmed not only that each and all of them, the defendants, paid to the plaintiffs as landlords and in connection with those permissive grants, the sum, each, of £G10 0s. 0d., as customary “drink,” but also that a document was prepared evidencing that transaction. Giving his interpretation and understanding of that document, exhibit A, the defendant, Kwabena Agyarko, testified that apart from clearly indicating that the plaintiffs were to be entitled to a two-third share of the proceeds from the produce of the farms, while the defendants took the remaining one-third:

“It also stipulated that I was to have and enjoy the farm for a period of four years from the time that the cocoa started yielding and that the abusa system was to operate after I had enjoyed the farm for those four years.”

Without any mental reservations whatsoever, I reject the interpretation placed upon the agreement, exhibit A, by the defendants because that construction, quite clearly, offends against equity, good conscience, and natural justice. From the evidence before me, from the circumstances surrounding this case, and in view of the facts, I am satisfied that Kwabena Agyarko, and the other defendants have placed this completely misguided interpretation upon their and the plaintiffs’ agreed arrangements in furtherance of their iniquitous attempt to deny their landlords, the plaintiffs, of what is lawfully and properly their just due. I have read and very carefully considered the whole of the agreement, exhibit A, more particularly paragraph (3) thereof. And I find as a matter of clear fact, that the only fair, reasonable and conscionable interpretation thereof is that there shall be a moratorium of four years from the date of the permissive grant unto [p.303] of [1968] GLR 292 the defendants of the parcels of land; namely, from 18 May 1954. And further, that during that four-year period of grace, the defendants shall not be liable to pay to the plaintiffs any part or parts of the proceeds of their produce as shares. But rather, that during that period of grace, the defendants shall have full and exclusive enjoyment of the fruits of their labours. If, therefore, any demand was to be made for the customary abusa shares under exhibit A, that demand was to be made any time from and after the year 1958, never before that year.

Continuing his evidence, Kwabena Agyarko, the defendant refuted, in the following terms, the assertions by the plaintiff that from the time that his (defendant’s) cocoa farm started to yield he had plucked 60 loads of cocoa every year. He said:

“I started harvesting and plucking cocoa from the land some seven years after I had been granted the land by the plaintiffs. Since then, I have harvested and plucked cocoa three times over a period of three years. The first harvest yielded sixteen loads; the second nineteen loads and the third 20 loads.”

From this evidence in particular, and that of the plaintiffs, it is clear beyond question, having regard to all the circumstances of this case, and also to the practice which exists between farmer-landlords and their tenants, be they abusa or abunu (it is clear beyond question and I find as a clear fact) that because the plaintiff’s had an interest in the proceeds of the cocoa farms they had permitted the defendants to make on their (plaintiffs’) parcels of land, they would, the said plaintiffs, as landlords, quite naturally, be keen and interested to know how their tenants, the defendants, were doing; what their problems were; and how much they were plucking or harvesting from their years of toil and labour. It is in the light of all this that I view as very misleading, deliberately false and utterly untruthful, the evidence, so very contradictory, of Kwabena Agyarko, that:

“The plaintiffs have never asked me how many loads of cocoa I got from my farm, and I have never told them.

It is not correct that when the plaintiffs first approached and asked me how many loads I had made from my farm, I told them I had got 60 loads. I never told them that.”

The very next answer that the defendant Kwabena Agyarko made, gave the complete lie to, and fatally undermined, his earlier assertion (which I reject for the reasons hereinbefore stated) that the plaintiffs

[p.304] of [1968] GLR 292 never asked to know how many loads he had realised from his farm. That answer also fortifies my view of the defendant, Kwabena Agyarko, as a downright untruthful and unreliable witness. Sharply contradicting himself, Kwabena Agyarko testified thus, inter alia: “What I told them was that the time agreed upon between us had not yet expired when I should give to them their share of the proceeds.” He had earlier testified that “some three years ago” the plaintiffs had approached and asked him for their two-thirds share of the proceeds of his farm. The outcome of this episode was that the parties entered into fresh arrangements (not altogether abandoning exhibit A) whereby the defendants thereafter were obliged to pay half-shares, on the abunu system, to the plaintiffs. Militating very strongly against the contentions of the defendants herein is their admission (per Agyarko) that they paid a pacification fee of £G12 0s. 0d. to the plaintiffs before the chief farmer of Akuase, and the district officer of the Cocoa Farmers’ Council and, further more, “begged” for an extension. This is clear evidence showing that the defendants very well knew what the terms and conditions of the agreement, exhibit A, were, and what was expected of them under that agreement. I had grave doubts about the veracity of Kwabena Agyarko, therefore, when he said that his very first harvest after seven years of toil and labour on the land, yielded only sixteen loads of cocoa. Lying came to him quite easily even when in court and under oath, and I have no doubt that on the probabilities, he also lied on that score to hoodwink the plaintiffs as to how much he had actually made. I do not, and I cannot, even believe him, when he said that his farm started yielding and that he reaped his first harvest seven years after the parcel of land had been given to him by the plaintiffs. I reject and do not accept or believe that because I am convinced and persuaded so to do both by and from the facts and the evidence as a whole, and, equally important, from his demeanour in the box.

The plaintiffs, through Kwadwo Konadu, had given evidence that Kwabena Agyarko’s farm had started to yield after the fourth year.

While being cross-examined, this defendant Kwabena Agyarko was asked whether he was in court when Kwadwo Konadu gave evidence. He said he was. When the following question was next put to Kwabena Agyarko, that is to say: “Did you, or did you not, hear him say that your farm started yielding after the fourth year,” a simple, straightforward question which demanded an honest and ready answer, he, the said defendant, instead of answering it straightforwardly and at once, to my surprise and the obvious irritation of [p.305] of [1968] GLR 292 his very own counsel, did not. He answered the question thus: “I heard him say that my farm started yielding after the fourth year”—but only after plenty of unnecessary hesitation and repetitions of the same question over and over again! When that answer is pertinently conjoined with his earlier admission that: “After the plaintiffs had given me the land, they paid me frequent visits. It is correct, therefore, that they would know if, and when, the farm started yielding,” further ample and compelling support is given to my view that Kwabena Agyarko, the defendant, ought not to be believed. I am fully satisfied and persuaded to find, as a fact, that his denials were all deliberately calculated to mislead the court and to cheat the plaintiffs out of what was fairly and properly due unto them. It is my considered opinion, having regard to the evidence, and the circumstances hereof, that it was unconscionable that for a period of over ten years, the plaintiffs should not have derived and enjoyed any benefits out of their land through and from the defendants, their tenants. To my mind, it is only just and equitable that they, the said plaintiffs herein, be entitled to the proceeds for at least half that period of time. My opinion of the first defendant, Kwabena Agyarko is that he ought not to be believed. He never impressed me as a truthful or reliable witness. He was deliberately and unnecessarily hesitant when simple and straightforward questions were put to him, and even though those straightforward questions were repeated over and over again. I find him unreliable and untruthful because he was evasive in his answers. I am persuaded to find as a fact, therefore, that Kwabena Agyarko chose to be thus in furtherance of his and the other defendants’ stratagems calculated to deprive the plaintiffs, their customary abunu landlords, of what was legally and properly their just due. It was a well-laid scheme to mislead the court into believing that there was nothing due from them to the plaintiffs as abunu landlords. That plan has become unstuck, in view of the cogency of the evidence and the strength of the facts and the circumstances of this case, all of which favour the plaintiffs’ cause. I therefore find to the contrary and hold Kwabena Agyarko (the first defendant), J. K. Dua (the second defendant), and Kwabena Koampa (the third defendant), each and all of them, strictly to their customary legal obligation unto the plaintiffs under their abunu tenancy. It is clear from the preponderance of the evidence which impels me to find as a fact that ever since the defendants went onto the land in dispute, first as abusa tenants, and then as abunu tenants; and even though they have reaped appreciable harvests therefrom, the defendants have not paid anything to the plaintiffs. But they have sought to take refuge under the Rents (Stabilization) Act, 1962 (Act [p.306] of [1968] GLR 292

109), as an excuse for not paying what they honestly know is their bounden obligation, namely, the one-half share of the proceeds to the plaintiffs under and by virtue of their agreement, exhibit A.

In accordance with native customary practice, the plaintiffs, having agreed with the defendants to tax them for their user of their (plaintiffs’) parcels of farming land, they were fully entitled, whenever they elected, to have requested the defendants to pay their abusa share of the proceeds to them, the said plaintiffs. By agreement reduced into writing, however, this practice was modified and the shares were therefore fixed to be paid after a certain period. There being nothing wrong or unconscionable about that arrangement, it is my view that each and all of the parties to that agreement (exhibit A) must be held to the terms and conditions thereof subject, of course, to the subsequent variation thereof whereby the abunu share was substituted for the abusa, the provisions of the Rents (Stabilization) Act, 1962, notwithstanding. It is my considered opinion, founded on the circumstances and the evidence before me and I find as a matter of clear fact, that before each and all of the defendants in each and all of these suits entered upon the plaintiffs’ land and took up the tenancy thereof in accordance with the agreement, exhibit A, they knew and were fully satisfied that the plaintiffs were not subjects of the Pankese stool. And, furthermore, that they also knew that even though the parcels of land upon which they (the said defendants) had agreed to farm as the plaintiffs’ abusa tenants, were situate on Pankese stool property, that stool had either interest in the parcels of land, nor right, title nor power over the plaintiffs who had bought outright the said parcel of land. I have no doubts at all in my mind, that before ever the defendants began their farming operations on their various portions of the land, and at all material times thereafter, they had fully assured themselves, and they therefore knew, that the plaintiffs had secure and unquestioned title and right to the portions of land whereon they were farming. I will not, therefore, allow the defendants as tenants, to abuse their own knowledge of the true state of affairs and so secure an unfair advantage over their landlords, the plaintiffs. I have looked at and carefully considered all the various Acts and regulations referred to by both counsel herein, namely: (i) The Rents (Stabilization) Act, 1962 (Act 109); (ii) The Rents (Cocoa Farms) Regulations, 1962 (L.I. 186); (iii) The Rents (Cocoa Farms) (Amendment) Regulations, 1965 (L.I. 382), and (iv) The Rents (Stabilization) (Amendment) Act, 1963 (Act 168). And I am of the opinion that it never was the intention of the legislature to completely cut across or stultify or both the long-established native customary usages whereby tenants paid to their landlords, an agreed and specified share of the [p.307] of [1968] GLR 292 proceeds of their tenancy. If Parliament had so intended, it would have so declared in express and unambiguous terms.

In my view, the Rents (Stabilization) Acts and the regulations made thereunder were meant to relieve stranger-farmers of certain economic pressures to which they were subject from the stools on whose parcels of land they were farming and paying customary rent.

Upon the coming into effect of the Rents (Stabilization) Acts, every stranger cocoa farmer farming on stool land and paying something by way of customary rent (either abusa, or abunu), was requested to cease making that payment. The parent Act empowered him to pay to the landlord of his farm, the sum, instead, of five shillings per every acre of land that his farm comprised. Only parcels of land either vested in the President, or vested in a stool, were to be affected by the Rents (Stabilization) Acts and regulations, and not portions of land purchased outright by private individuals who are not, or who do not own the property as, stool subjects. Where, therefore, as in this instant suit, a party seeks to invoke the protection of any of these statutes and regulations (as the defendants herein have sought to do), the onus falls full-square upon that party to prove and to establish quite conclusively, that the portion of land, subject-matter of the suit, is stool land and, furthermore, that his landlord is either the stool itself or else a subject or member of a stool by reason whereof, therefore, the defendant or the party calling the Acts in aid is entitled to their protection. That essential burden the defendants in this case have failed, through Kwabena Agyarko (in this test case No. L.202/63) to discharge conclusively, or at all. Even though, therefore, as I have already stated, the pieces of land, subject-matter of these suits, are indeed situate and lying upon Pankese stool land, I am satisfied that neither Kwasi Kwarteng (the plaintiff in suit No. L 203/63), nor any of the other plaintiffs in the other suits, has or have, been proved to be a subject, or a member, of the Pankese stool. Nor for the matter of that, have the defendants shown that they are of the Pankese stool. I hold therefore, that the defendants in these several suits cannot properly hide behind the provisions of the Rents (Stabilization) Acts of 1962 and 1963, to take away from their landlords, the plaintiffs herein, what is justly and lawfully their due, namely, their fair and agreed share of the proceeds of their cocoa farms.

Inasmuch, therefore, as I have found the Rents (Stabilization) Acts and regulations inapplicable to this instant suit (and the others), I must, consequently, and I do hereby, find and hold, that the defendants’ counterclaim must, also, fail. And it is accordingly dismissed.

It is my view, and I find as a matter of clear fact, that the action instituted by the plaintiffs herein were very properly started.

[p.308] of [1968] GLR 292

I find further, that the agreement, exhibit A, was and is as binding upon the plaintiffs as it was and is, binding upon the defendants herein. I am satisfied, therefore, from all the circumstances herein, that the nature of the transaction between the parties in all these suits; the substance and meaning of their agreement, exhibit A; and the non-applicability of the Rents (Stabilization) Acts, therefore completely exclude the authority of the Minister as envisaged by the statute. I hold, therefore, that each and all of the defendants in this and the other suits herein, is and are liable and bound to pay the agreed and customary “half-share” rent, and not five shillings per acre, to each and all of the plaintiffs, herein. On all the evidence, I find as a decisive fact that this and each and all of the other actions have been properly brought by the plaintiffs in very good faith. They have a legal right to, and interest in, the proceeds of the farms of their customary abunu tenants, the defendants herein. That right and that title, and the whole of these several actions, have been founded in and based, not upon the arbitration held at Akuasi in 1962, but in and upon native custom and practice, and the agreement, exhibit A. They have a duty to protect that right and that interest from such as the defendants who seek to jeopardise and whittle down that right and that interest. I find as a fact that all the evidence and the preponderating circumstances point strongly and clearly to the defendants herein, tenants of the plaintiffs, as the parties guilty of mala fides. They have not defended these actions seeking that justice be truly done and equity satisfied and upheld, but rather that they be perverted to their (defendants’) unrighteous benefit. That I will not do, or cause to be done. It is for the foregoing reason, that I therefore resolve all the several issues in favour of each and all of the plaintiffs in these several suits. I therefore find for the plaintiffs in favour of each of whom judgment is hereby and accordingly pronounced.

To my mind, therefore, as modelled by the facts and the evidence before me, viewed against the background of the circumstances surrounding the entire transaction herein:

(a) The Rents (Stabilization) Acts do not apply to the parties herein.

(b) The agreement, exhibit A, is fully and effectively binding upon both the defendants and the plaintiffs.

(c) The plaintiffs are entitled to only one of the reliefs sought.

(d) The defendants were to account to the plaintiffs and to share the proceeds six years from date of the agreement exhibit A and not six years after the cocoa head started to yield.

[p.309] of [1968] GLR 292

(e) Both the original and the extended periods of grace having elapsed, the plaintiffs were well within their rights in suing out their writs against the defendants in 1963.

(f) The plaintiffs’ claims are not caught by the Rents (Stabilization) Acts.

(g) The plaintiffs’ action is in good faith. It is the defendants who are rather in bad faith.

As to the reliefs sought by the plaintiffs, I can, and I do hereby, confirm their claim for a “declaration of title” to the parcels of land herein, seeing that their right and title thereto was never, at any stage of these proceedings, ever challenged, or disputed by the defendants. What the defendants have challenged has been the right of the plaintiffs to their abunu share of the proceeds of their (defendants’) harvest. If I had upheld their contentions and defence, and held that the Rents (Stabilization) Acts applied herein, the defendants would have been entitled to remain on the land in dispute paying only five shillings per acre of their several portions of land. They would certainly not have been liable to ejectment from the disputed land. On the facts and the evidence before me, therefore, it would be unjust and inequitable, having regard to all the circumstances, to grant unto the plaintiffs “recovery of possession” of the parcels of land in dispute because, even though the defendants have been on the land for a long time, and have developed it, they have never lain any adverse claim to the said pieces of land. The only part of the plaintiffs’ reliefs that must be granted, however, is their claim for “half share of cocoa proceeds plucked from the said land by the defendants.” It is to that extent, only, therefore, that judgment is hereby given unto all the plaintiffs as claimed, against each and every one of the several defendants in these suits, namely:

(1) Kwabena Agyarko, in suit No. L.202/63; the total sum of £G486 0s. 0d.

(2) Kwadwo Okoampa (or Kwampa), in suit No. L.203/63; the sum of £G243 0s. 0d; and

(3) J. K. Duah, in suit No. L.204/63; the sum of £G592 0s. 0d.

The total sum due and owing from the defendants herein to the plaintiffs being, therefore, £G1,321 0s. 0d., for which judgment is hereby and accordingly pronounced.

Costs are awarded in favour of the plaintiffs as follows, seeing that the main and test case, suit No. L.202/63. has succeeded: in suit No. L.202/63—the sum of 170 guineas (inclusive of counsel’s); in suit No. L.203/63—the sum of 130 guineas (inclusive of counsel’s); and in suit No. L.204/63, the sum of 175 guineas (inclusive of counsels). [p.310] of [1968] GLR 292

Having found as above, and upheld the plaintiffs’ claim under their agreement with the defendants herein, (exhibit A, as varied), it becomes necessary to look at the present state of the law under which the defendants herein have sought protection and exemption.

By virtue of the Rents Stabilization Acts (Repeal) Decree, 1966 (N.L.C.D. 49), the Rents (Stabilization) Act, 1962 (Act 108), and the Rents (Stabilization) (Amendment) Act, 1963 (Act 168), both stand repealed and are become null and of no effect.

The effect of this Decree, therefore, is that the customary rules of land tenancy, that is to say abunu, and abusa, are restored in all cases where they were unconscionably quashed by the coming into operation of the Rents (Stabilization) Acts.

If the defendants in these several suits require any proof of the unconscionableness of the statutes which they have called in aid herein, N.L.C.D. 49 is abundant and convincing proof for them.

Under and by virtue of N.L.C.D. 49, therefore, (if not of this judgment), each and all of the defendants in this and the other suits herein, is and are legally bound to revert to their original positions as customary abunu tenants, respecting and paying unto the plaintiffs herein, their customary half-shares of the proceeds of their farms.

And it is ordered that the order for injunction made herein on or about Tuesday, 29 September 1964, be now discharged. And let the registrar of the Circuit Court, Koforidua, who was by the said order appointed manager and receiver, now render full account of his receivership, supporting the same with an intelligent statement.

DECISION

Judgment for plaintiffs.

Counterclaim dismissed.

S. K. T.