NANA ASIEDU AGYEMANG II vs. SCANCOM LIMITED & MADAM AFUA NYARKOA -

NANA ASIEDU AGYEMANG II

vs.

SCANCOM LIMITED & MADAM AFUA NYARKOA

[SUPREME COURT, ACCRA]

CIVIL APPEAL NO. J4/96/2022

12TH NOVEMBER, 2025

COUNSEL

MARTIN T. AMOYAW ESQ. FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

PETER KWAKU NTI ESQ. FOR THE 2ND DEFENDANT/APPELLANT/ RESPONDENT.

CORAM

PWAMANG JSC (PRESIDING)

LOVELACE-JOHNSON (MS.) JSC

AMADU JSC

KULENDI JSC

ASIEDU JSC

JUDGMENT

KULENDI JSC:-

INTRODUCTION:

1. The appeal was initiated by the Plaintiff/Respondent/Appellant through the filing of a notice of appeal dated 11 January, 2021, seeking to overturn the judgment of the Court of Appeal dated the 4 of November, 2020, coram: SOWAH (MRS), SUURBAAREH, MENSAH-HOMIAH (MRS) JJA. For ease of reference, the parties to this appeal shall be referred to by their original designations before the Trial Court.

BACKGROUND:

2. On the 13 of March, 2007, the Plaintiff suing for himself and the Abetifi stool of Kwahu, in his capacity as Abetifihene commenced the suit against the 1 Defendant before the High Court, Koforidua. The thrust of his case was that Abetifi lands are stool lands over which he, as chief, exercises custodianship for and in trust for his subjects.

3. According to the Plaintiff, sometime in 2006, he observed that agents of the 1st Defendant were erecting a communication mast on a portion of his stool land without the consent of the stool. According to the Plaintiff, he allowed the construction to proceed unhindered, in the spirit of peace and good conscience, and after completion of the installation, he caused his lawyers to draw the 1Defendant’s attention to their trespass.

4. The 1 Defendant entered appearance to the Writ of Summons on the 30 of March, 2007 and delivered a Statement of Defence on the 30 of August, 2007. The 1st Defendant averred, per paragraph 3 of the Statement of Defence, that it was the 2nd Defendant, a subject of the stool, who leased a small portion of land in her occupation to the 1st Defendant for the erection of the mast.

5. It was on account of the foregoing, that the Plaintiff by an order of the High Court dated 28th May, 2012, joined the 2 Defendant to the suit and by an amended Writ of Summons filed on 11th October, 2012, sought the following reliefs:
(i) A declaration of title to all that piece or parcel of land situate, lying and being at Abetifi on Abetifi Stool land, bounded by the properties of Afua Oforiwaa, Madam Amma Anane, Opanin Darko and a proposed road;
(ii) Recovery of possession together with damages for trespass in the sum of 200 million cedis (now GH¢20,000); and
(iii) A perpetual injunction restraining the Defendants, their agents, assigns and workmen from interfering in any way with the disputed land.
2 DEFENDANT’S CASE:

6. The 2nd Defendant, per her statement of defence filed on the 20th of February, 2013, traced her root of title to a grant made by the Ankobea Family of Abetifi to her grandmother, Akosua Nyarkoa, over forty (40) years prior to the commencement of this action.

7. She contended that the Abetifi lands belong to the individual royal houses, each under the control of its respective head of family. According to her, the land she inherited from her grandmother, Akosua Nyarkoa, measured approximately a quarter of an acre, and she and her family had been in exclusive possession and control of same since 30th April, 1970.

8. The 2nd Defendant further averred that she leased a small portion of the land in dispute, measuring 16×18 metres, to the 1st Defendant for the erection of a mast. The consideration received, she maintained, was intended to finance the construction of a family house on the remainder of the land granted in 1970.

9. Consequently, the 2nd Defendant counterclaimed for:
(i) A declaration of title to the land granted to her grandmother in 1970, from which she leased a portion to the 1st Defendant;
(ii) Damages against the Plaintiff for instituting what she considered a vexatious and unmeritorious action; and
(iii) Costs.

DECISION OF THE HIGH COURT:

10. At the conclusion of the trial, the High Court settled the matters for determination into three (3) main issues:
(i) Whether the Abetifi lands are stool lands?
(ii) Whether the Plaintiff is the custodian of Abetifi lands?
(iii) Whether Abetifi lands are “family stool lands” distinct from stool lands?
11. In addressing these issues, the Learned trial judge began by discounting the credibility of the evidence given by DW1, Mr. Ofori Amoah. The Court was of the view that Mr. Amoah’s testimony was unreliable, as he vacillated in his account regarding the existence of an Abetifi stool. In his evidence-in-chief, Mr. Amoah suggested that the Abetifihene occupied only the Adonten stool, and that Abetifi, in itself, had no stool. However, under cross-examination, he resiled from this initial position and even went so far as to identify the stool room of the Abetifi stool.
12. The Court, relying on the testimony of the Plaintiff and his witnesses, held that the lands in dispute were stool lands. The Court noted that at trial, the Plaintiff had emphasized that, as an Akan stool within the Kwahu Traditional Area, all lands within his customary jurisdiction belonged to the stool. Under cross-examination, however, the Plaintiff admitted that certain sub-stools held lands in Abetifi and “profited off the land.”

13. Nonetheless, the Court found that this seeming contradiction was clarified when the Plaintiff explained that such sub-stools owed allegiance to him; and though they and their subjects enjoyed usufructuary interests for farming purposes, they could not alienate the land to third parties without his consent as Abetifihene.

14. The Trial court was similarly convinced by the testimony of (PW1) Stephen Kwame Addo, the Secretary to the Plot Allocation Committee, who confirmed that alienation of land in Abetifi could only be undertaken with the Plaintiff’s consent, and that all transfer documents were executed by the Plaintiff himself.

15. This position was further corroborated by PW2, the Regional Lands Officer and PW3, the Ankobeahene, both of whom testified in support of the Plaintiff’s case. The Court found particularly compelling, the Ankobeahene’s admission that even in his capacity as Chairman of the Allocation Committee, he could not transfer land in Abetifi without the concurrence of the Plaintiff.

16. The Court further observed that the 2nd Defendant herself, under cross-examination on 22nd December 2016, conceded that Abetifi lands belonged to the chief. Likewise, the 2nd Defendant’s own witness undermined her case by admitting, under cross-examination, that while “Abetifi lands are owned by the family, the chief is the custodian of all the family lands.”

17. On the basis of this body of evidence, the Court concluded that the alienation of the disputed land to the 1st Defendant, without the consent of the Plaintiff, was unlawful.

18. Accordingly, the Court declared the transaction invalid, ordered the 1st Defendant to atorn tenancy to the Plaintiff, directed that possession of the land revert to the Plaintiff, and further granted a perpetual injunction restraining the Defendants from interfering with the said land.

DECISION OF THE COURT OF APPEAL:

19. Aggrieved by the decision of the High Court, the 2nd Defendant, per a notice of Appeal dated 20 March, 2019, lodged an appeal with the Registry of the Court of Appeal.

20. By a unanimous judgment delivered on 4th November, 2020, the Court of Appeal reversed the findings of the High Court and entered judgment in favour of the 2nd Defendant.

21. In reaching its conclusions, the appellate court resolved the matter on the basis of two principal issues:
(i) Whether the trial judge was correct in holding that the Plaintiff, as Abetifihene, is custodian and title-holder of the disputed land?
(ii) Whether the 2nd Defendant had any legally cognizable interest in the land which the trial court failed to appreciate?
22. On the first issue, the Court of Appeal upheld the finding of the High Court. The appellate Court reasoned that the evidence adduced amply established the character of Abetifi lands as stool lands, a point further reinforced by the 2nd Defendant’s own admission under cross-examination that the disputed land belonged to the chief. The appellate Court equally rejected the 2nd Defendant’s attempt to downplay this admission as a lapse of concentration.

23. The Court of Appeal, however, emphasized that the mere classification of Abetifi lands as stool lands did not, in itself, resolve the dispute in the Plaintiff’s favour.

24. The Court below rightly noted that the Plaintiff had acknowledged that the Ankobea stool family, from which the 2nd Defendant traced her lineage, had historically acquired farming rights over portions of stool lands, a fact corroborated by PW3, the Ankobeahene. The appellate court thus found that the 2nd Defendant’s grandmother, as a member of the Ankobea family, acquired a usufructuary interest in the land by virtue of the grant made to her by the Ankobeahene, even though the Abetifihene retained the allodial title.

25. The Court of Appeal further held that such a usufructuary interest is, by nature, potentially perpetual and capable of alienation without the prior consent of the allodial owner. While it recognized that the establishment of the Allocation Committee introduced a new regime requiring subjects to obtain express grants before occupying stool lands, this development, in the opinion of the Court of Appeal, did not retrospectively extinguish the rights of stool subjects who had already acquired usufructs, nor did it invalidate subsequent transfers lawfully derived from such usufructuary interests.

26. Accordingly, the Court of Appeal concluded that the 2nd Defendant’s usufruct, inherited from her family, remained valid despite the Plaintiff’s overarching allodial title. Although the Court acknowledged that, under the new regime, the 2nd Defendant ought to have notified the Plaintiff of her lease of part of the land to the 1st Defendant, it held that the omission was not fatal and did not render the fifteen (15) year lease void.

27. On the basis of the foregoing, the appeal was allowed, and judgment entered for the 2nd Defendant.

APPEAL TO THE SUPREME COURT:

28. Aggrieved by the decision of the Court of Appeal, the Plaintiff filed the instant appeal before this Court urging the following grounds:

(i) The judgment is against the weight of the evidence available on the record.

(ii) The Court of Appeal, having held that the plaintiff/respondent/appellant is the allodial owner of the land in dispute, erred in not directing that a percentage of the agreed rent be paid to the allodial owner.

(iii) The Court of Appeal having held that the 2 Defendant/Appellant/Respondent ought to have notified the Plot Allocation Committee of the transaction with Scancom ought to have directed that a percentage of the rent payable be paid to the Allodial title owner as the transaction was of commercial in nature.

29. In his written submissions before this Court, the Plaintiff contends that a usufructuary interest under customary law inherently carries with it an obligation to render customary services and pay tribute to the stool. While acknowledging that such customary services have waned over time due to modernization, the Plaintiff maintains that the Court of Appeal erred in failing to direct that a portion of the commercial rent derived from the 1st Defendant’s use of the land be paid to the stool.

30. This, the Plaintiff argues, would have been consistent with custom and the enduring duty owed by subjects to the allodial owner.

31. The Plaintiff further submits that, in light of urbanization and population growth, the traditional practice of subjects freely occupying vacant stool lands is no longer sustainable. The realities of modern land use demand formalized alienations and regulatory oversight by the stool.
32. Accordingly, the Plaintiff invites this Honourable Court to re-examine the incidents of usufructuary interest within the context of contemporary Ghanaian society, recognizing that customary law is dynamic and evolves with societal change.

33. In support of this position, the Plaintiff relies on the dictum of Wiredu J. (as he then was) in Amatei v. Hammond & Annor (1981) GLR, where His Lordship emphasized that the commercial exploitation of stool land by subjects necessitates more formal arrangements such as leases and that prior occupation rights may require reconsideration when land use transitions into commercial or developmental purposes.
34. On her part, the 2 Defendant points out a significant shift in the reliefs being pursued by the Plaintiff.

35. At the trial court, the Plaintiff sought a declaration of title to the disputed land; recovery of possession; substantial damages for trespass, and a perpetual injunction.

36. The 2 Defendant submits that, having been denied these reliefs by the Court of Appeal, the Plaintiff now seeks, for the first time, a percentage of what the 2 Defendant describes as the “meagre monthly rent” payable under the lease agreement with the 1st Defendant.

37. The 2 Defendant contends that this new relief was never part of the original claim before the High Court and therefore amounts to a fishing expedition, which this Court ought not entertain.

38. The 2 Defendant further raises the issue of delay, emphasizing that the Plaintiff waited nearly four decades before attempting to assert rights over the disputed land. The 2 Defendant argues that, even if the defence of limitation was not expressly pleaded, such inordinate delay should weigh heavily against the Plaintiff.
39. According to the 2 Defendant, this prolonged inaction disentitles the Plaintiff from obtaining any equitable or monetary relief from this Honourable Court.

RESOLUTION:

40. It is particularly in situations such as this, where a party contends that the opponent’s case has strayed beyond the bounds of its pleadings, that the rehearing jurisdiction of this Court, and its authority to examine the entire record of appeal, becomes even more compelling. In such cases, we may, in exercise of our unique rehearing jurisdiction which is exclusively invoked in the determination of appeals, examine the Record of Appeal to delineate the original scope of the Plaintiff’s case before the Court to determine whether or not the arguments advanced in the instant appeal, amount to a departure from his initial claim.

41. In the Plaintiff’s case before the trial Court and Court of Appeal, it was apparent that he claimed the land as stool land and therefore contended that the disposition of same without his express authorization or consent was irredeemably void. Consequently, he sought reliefs categorically affirming his title over the land and prayed for orders for recovery of possession of the said parcel of land. This claim was adopted and similarly deployed in the appeal before the Court of Appeal, where the Court below, despite affirming the allodial title of the stool, recognized the 2 Defendant’s usufructuary interest in the land, prompting the instant appeal.

42. It is evident from the tenor of the Plaintiff’s grounds of appeal and his written submissions that he has resiled from this earlier position and now concedes to the superior reasoning of the Court of Appeal on the incidents of the usufruct.

43. In particular, the Plaintiff appears to concede that the usufructuary interest carries with it the right to transfer land without the prior approval of the allodial title holder.

44. The 2 Defendant rightly noted that the Plaintiffs case has since metamorphosed from a claim of title over the land; to a claim of an entitlement to a portion of the proceeds paid to the 2 Defendant under the lease granted to the 1st Defendant, by reason of the stool’s allodial interest over the land.

45. This Court has long settled the principle that an appeal can only be prosecuted within the strict confines of the Record of Appeal, and neither the party nor indeed the Court may, on appeal, seek to introduce a novel and inconsistent claim to the case before the appellate Court. Quite clearly, the conduct of the Plaintiff constitutes an attempt to set up at this second appellate stage, a new case which is wholly inconsistent with his original case which was premised on an assertion of exclusive ownership of the disputed land.

46. 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 2 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.

47. 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).”

48. 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).

49. 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.”

50. We note from the Plaintiff’s written submissions that he appears to proceed on the assumption that, because the land was leased to the 1st Defendant by the 2nd Defendant, the 1st Defendant would not perform the relevant customary obligations owed to the stool by occupants of stool lands unless compelled by this Court.

51. In this regard, it bears emphasized that the usufructuary’s obligation to render customary services to the stool passes in its entirety to his or her grantee. Thus, the grantee of the usufruct steps fully into the shoes of the customary freeholder and is bound to render to the stool the services which the original usufructuary holder would have been required to perform.

CONCLUSION:

52. It is for the foregoing reasons that this Court, on the 12 November, 2025 by unanimous decision, dismissed the instant appeal, affirmed the judgment of the Court of Appeal of even date and awarded cost of Forty Thousand Ghana Cedis (GHC 40,000.00) in favour of the 2nd Defendant against the Plaintiff.

(SGD.) E. YONNY KULENDI