CONCESSION ENQUIRY (NO. 1118) (ACCRA) [1961] GLR 448

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 30TH JUNE, 1961

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) Amodu Tijani v. Secretary, Southern Nigeria [1921] 2 A.C. 399

(2) Mensah v. Toku (1887) Sar. F.L.R. 42

(3) Gambra v. Eweah (1892) 1 Ren. 92

(4) Toku v. Ama (1890) Sar. F.L.R. 58

(5) Edooah v. Awooah (1869) Sar. F.C.L. 194

(6) Dugbartey v. Narnor (1925) D. Ct. ‘21-’25, 182

[p.450] of [1961] GLR 448

(7) Bentley v. Rotherham and Kumberwell Local Board of Health (1876) 4 Ch.D 588

(8) Rein v. Lane (1867) L. R. 2 Q. B. 144

(9) Kwesi Abesibro v. Kofi Ama (1893) Sar. F.L.R. 78

(10) Nchirahene Kojo Ado v. Buoyemhene Kojo Wusu (1940) 6 W.A.C.A. 24

(11) Bokitsi Concession Enquiry (1903) Sar. F. L. R. 159

(12) Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (1938) 4 W.A.C.A. 96

(13) Lokko v. Konklofi (1907) 2 Ren. 450

(14) Boi Owusu v. Manche of Labadi, Land Court, Accra, February 23,1932, unreported.

(15) Appoh Ababio v. Doku Kanga (1932) 1 W.A.C.A. 253

(16) Suleman & Anor. v. Hannibal Johnson (1951) 13 W.A.C.A. 213

(17) Chief Secretary to the Government v. Fagbayi & Ors., W.A.C.A. December 7, 1950, unreported.

(18) Kokomlemle Consolidated Cases, Land Court, Accra, May 31, 1951, unreported.

(19) Ohimen v. Adjei (1957) 2 W.A.L.R. 275. NATURE OF PROCEEDINGS

APPLICATION by the Administrator of Stool Lands for a review of an order given on the 22nd December, 1960, granting a certificate of’ validity to the concessionaire and for leave to oppose the grant of a certificate of validity.

COUNSEL

C. C. Quist for the Administrator of Stool Lands (applicant).

H. V. H. Franklin for the claimants (respondents).

JUDGMENT OF ADUMUA-BOSSMAN J.

This ruling is in respect of an application by motion at the instance of the Administrator of Stool Lands (hereinafter referred to shortly as the administrator) for the review of an order made on the 22nd December, 1960, granting a certificate of validity in respect of the concession lease herein. The first question raised is whether the court is competent to entertain the application having regard to the time when it was made. As to that, Mr. Franklin, counsel for the claimant, has submitted that the administrator could only intervene in this concession proceedings by virtue of section 8 of the Stool Lands Control Act, 19591(1) which provides that: “The Governor-General shall . . . have the right of taking part in the name of the Stool concerned in any proceedings concerning any lands from which Stool revenue is derived”. As the administrator is permitted to intervene only “in the name of the Stool concerned” continued counsel in his submissions, he must be subject to all the disabilities to which the “Stool concerned” may or shall be liable or subject. One such disability, said counsel, which is prescribed by the Concessions Ordinance2(2) is that contained in section 14 proviso (ii) in the following terms:

“No enquiry shall be held as to the validity of any concession before the expiration of three months from the date of filing of the notice of such concession

[p.451] of [1961] GLR 448 and any person may, subject to the regulations made under section 5 of this Ordinance, enter notice of opposition to the granting of certificate of validity of such concession:

Provided that—

(i) …

(ii) where an order for a Survey has been made by the Court under section 20 and the boundaries of the concession have either wholly or in part been cut or demarcated for the purposes of such survey, then no opposition on the part of any native to the granting of a certificate of validity of such concession shall be entertained by the Court unless notice of such opposition has been filed within two months of the cutting or demarcation of such part of the boundaries of the concession as affect the interests of the person entering the notice of opposition . . .”

It is admitted that with regard to this concession, demarcation had taken place over two months evennbefore the making of the order granting certificate of validity dated the 22nd December, 1960, now sought to be reviewed to permit the lodging of opposition, and counsel contends that in the circumstances this application at this admittedly belated hour cannot be entertained. The reply of Mr. Quist counsel for the administrator was that rule 15 of the Concessions Procedure Rules3(3) made under section 5 of the Ordinance enable this application to be made.

The rule is as follows:

“Any person served with a notice under section 11 of the ordinance shall on filing in the Court from which the notice issued … four clear days before the hearing day notice of his intention to oppose the grant of the certificate of validity, and the grounds of his opposition be deemed to be party to the enquiry into such concession … and any person not so served may at any time, by leave and on such terms as the Court may think just be made a party to the enquiry for the purpose of opposition or otherwise.” The terms of section 14 of the substantive Ordinance making provision for opposition to the grant of certificate of validity of a concession expressly provide that the entry or filing of opposition shall be “subject to the regulations made under section 5 of this Ordinance”, thereby appearing impliedly, if not expressly, to adopt or incorporate the regulations as part of the provisions of that section and of the substantive Ordinance. It appears to me therefore that according to the clear terms of the latter part of the rule or regulation 15 providing that: “Any person . . . may at any time, by leave and on such terms as the Court may think just, be made a party to the Enquiry for the purposes of opposition or otherwise,” the court is competent to entertain and deal with this application. Moreover it seems to me that section 14, proviso (ii) on which Mr. Franklin relies is restricted only to the case of a native “whose interest is affected by any cutting or demarcation of any boundary of a Concession land”, according to the clear terms of the section, and does not apply to any other native who, not being one whose interest has been affected by the demarcation of a boundary, nonetheless has some valid ground of opposition, say, one claiming the rights of an overlord, for example. [p.452] of [1961] GLR 448

Turning now to the ground on which the review is sought with the object of obtaining leave to oppose the concession, it is contended that the grant in this case is one within the purview of section 75 of the Local Government Ordinance4(4), section 16, subsection (1) of the State Councils Ordinance5(5), and/or section 7 of the Stool Lands Control Act 1959,6(6) and that the assents and/or concurrences prescribed by those enactments have not been obtained. Paragraph 3 of the affidavit of the administrator raising the question is in the following terms:

“The Concession has not received the concurrence of the relevant State Council under Section 16(1) of’ the State Councils Ordinance No. 8/52, or that of the Local Council under section 75 of the Local Council Ordinance Cap. 64. or that of the Administrator of Stool Lands under section 7(b) of the Stool Lands’ Control Act, 1959.” It seems important to note the provisions of section 16 (3) of the State Councils Ordinance providing that: “In so far as they relate to land the provisions of this section shall be read in addition to and not in derogation of the provisions of Part VII of the Local Government Ordinance, 1951.” The “Stool property” to which section 16 (1) applies is described in the definition section 2 as including: “the Stool itself and all the insignia, and such other properties including land as were handed over or declared as Stool property to a Chief on his installation”. It will be observed that in so far as the definition may be said to include a definition of “Stool land” the description appears to be: “Land declared as stool property to a chief on his installation.”

There is secondly section 75 of the Local Government Ordinance7(7) as follows:

“(1) Any disposal of any interest or right in land which involves the payment of any valuable consideration or which could, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, which is made (a) by a Stool; or

(b) by any person who, by reason of his being entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for nominal consideration; shall be subject to the concurrence of the … Local Council … for the area concerned, and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.” The “Stool land” to which it applies is defined in the definition section 2 as including: “any land or interest in land controlled by a Stool, Head of a tribe, or Company Captain, for the benefit of the subjects of the Stool, tribe, or company, as the case may be; and Stool means the person or body of persons having Such control.” [p.453] of [1961] GLR 448

The description both under the State Councils Ordinance and the Local Government Ordinance of

“Stool land”, it will be observed, appears to be similar to or coincident with that given by Lord Haldane in Amodu Tijani v Secretary, Southern Nigeria8(8) when he said:

“Their Lordships doubt whether any really definite distinction is connoted by the expression ‘stool lands’. It probably means little more than lands which the chief holds in his representative or constitutional capacity as distinguished from land which he and his own family hold individually.”9(9) Before leaving the provisions of section 75 of Cap. 64 for the time being, it should be specially noted that those provisions apply not only to “Stool lands” but also to land other than stool land disposed of for valuable consideration: “by any person who, by reason of his being entitled by customary law to the free use of land, has acquired possession of such land without payment of any valuable consideration or in exchange for a nominal consideration.” It will be necessary to revert in due course to a more detailed consideration of the kind of lands envisaged by or under the provisions of subsection (b) of section 75 of the Ordinance Cap. 64; but first let us continue with and complete our consideration of the first kind of land to which, as we have seen so far, both Ordinances No. 8 of 52 and Cap. 64 apply, namely “Stool lands”.

With regard to the third enactment mentioned in the administrator’s affidavit, namely, the Stool Lands

Control Act, 1959 10(10), section 7 thereof provided that:

“The management of Stool land—

(a) so far as vested by the Local Government Ordinance or the Municipal Councils Ordinance, 1953 in any local government council, and

(b) so far as vested in a State Council by section 16 of the State Councils (Southern Ghana and Volta)

Ordinance, 1952- shall be transferred to the Governor-General, and accordingly, all functions of a local government council under . . . section 75 of the Municipal Councils Ordinance, . . . and of a State Council under section 16 of the State Councils (Southern Ghana and Togo) Ordinance 1952 shall be performed by the Governor-General.”

The section appears to operate to substitute the administrator for the state and local government councils in the matter of the giving of assents or concurrences to dispositions of land which formerly those councils were privileged to give. In its reference to “Stool land” or “Stool”, it has merely adopted the descriptions in the Local Government Ordinance by providing, that: . . . “Stool land’ and ‘Stool’ have the same meanings as in the Local Government Ordinance.” In the definition of “Stool Land” under the Local Government Ordinance which speaks of control by the agencies mentioned, ie. “a Stool, Head of a tribe, or Company Captain”, as the criterion for determining whether land is a

“Stool Land” or not, the respective instances of the “Head of a tribe” and “Company Captain” are clear enough and free from any ambiguity or doubt. Unfortunately the same cannot be said of the case of the “Stool”; and the use of the word [p.454] of [1961] GLR 448

“Stool” simpliciter without any qualifying word to indicate clearly the particular type of stool which is meant, cannot be said to be entirely satisfactory. Stools, we are all well aware, are of two kinds, private or family stools on the one hand, and public or state (also called Oman) stools on the other hand. Moreover, all who are under or subservient to either kind of stool may be, and are frequently referred to as “subjects” of so-and-so stool. As far back as 1888 in the case of Mensah v. Toku,11(11) , Francis Smith, J., when he appeared to have enquired into a dispute as to whether the plaintiff had been properly deposed and certain stools of his lawfully removed from his custody and retained by the defendant who claimed to be the newly elected chief, the paramount and sub-chiefs from whom the learned judge sought evidence of the relevant customs as to election and deposition of chiefs, all brought out or disclosed and stressed the distinction between a “family chief” on the one hand, and “town chief” on the other hand, one of the Amanhin witnesses saying: “There are two kinds of chiefs—the family chief and the town chief”. (see Sarbah, Fanti Law Reports pp. 42-48). In the subsequent case before the Full Court in 1892 of Gambra v. Eweah12(12) the question of the distinction between a family stool and a town (or public) stool became more prominent, because it appeared to be a direct issue in the case whether the stool about which the parties were litigating was a family stool or a town stool, and Hayes Redwar delivering his judgment said: I am of opinion that the only just conclusion which can be arrived at is that the deposal was rightly made in the case of this stool, which I am satisfied upon the evidence was a town stool. The cases cited related to ‘ family property stools,’ and are therefore no authorities in the case of a ‘town stool’ which appears to be one of a different description and subject to different rules as to succession and deposal.”13(13)

In Mensah v. Toku the learned judge decided in favour of the plaintiff and said: “I find that by native law Mensah has not been deposed and that he is still the Chief of Inkrah.”14(14) The judgment is however not clear and specific enough about the stool the subject-matter of the suit being a family (or private) stool. Two years later, however, in 1890, there was further dispute about the same stool, fortunately also reported by Sarbah, and that is the case of Toku v. Ama, coram Hutchinson, C.J. The report reveals that:

“By his writ, the plaintiff claimed to establish his title and right of succession to the stool of Achin

Mensa, deceased, late of Inkran in Assin, and to recover possession of all lands, houses, and other properties belonging to the said stool . . .

The defendant pleaded that the plaintiff had extinguished his claim to the succession; also possession.

Kobina Bonda, a witness, gave evidence that when Mensah was put on the family stool, plaintiff Toku was placed behind him, so that on Mensah’s death Toku succeeds to the stool and stool property.15(15)“

[p.455] of [1961] GLR 448

Here therefore was a case relating, beyond question, to a family stool as distinguished from a town (or Oman) stool. The learned judge in the investigation of the dispute concerning it took the precaution to ascertain the relevant custom concerning the installation of a stool holder and obtained the following important information:

1. The families of the chief’s blood have alone the right to elect …

2. The consent of the king [Omanhene or Head of the State] is not necessary. He cannot oppose one who is elected by the family.

3. The family have the right to pass over one who has quarrelled with the [late] chief. Having left the family and gone elsewhere, he has no right to the stool nor is his consent required. Nor is he eligible; and the families who went away with him have no voice in the election”16(16) To the important question as to whether if the family be divided, the person chosen by the majority is entitled to the stool, the assessors gave the reply: “No; those nearest in blood to the late chief have the right to elect.”17(17) The learned judge decided in favour of the defendant, holding as follows:

“I decide that Toku and those families who went away with him were not entitled, even if they were more in number than those who were with Ama (which is not proved), to elect the new chief; and further, they were not entitled to take any part in the election; at all events, unless with the consent of those who had remained under the old chief Mensa. Toku can only succeed in this action by showing that he has been properly elected and installed as chief. This he has failed to do and therefore his action must be dismissed.”18(18)

It seems necessary to take note of the fact stated in Sarbah’s discussion of the case, that: “The stool in Ama’s custody was practically that of a junior branch of the family”19(19) Even before Toku v. Ama dealing specifically with a family stool, there had been in 1869 in the Judicial Assessor’s Court the case of Edooah v. Awooah20(20) acknowledging the customary position that amongst family stools also there may be senior and junior stools. The judgment in that suit contains the following pertinent statement: “The Judicial Assessor having convened a meeting of the chiefs of Cape Coast to consider this case finds

… that [the] defendant is the head of the house, and that the same consists of two stools, a great stool and a small one. That defendant sits on the great stool and has control over the small stool. The defendant has acted wisely in protecting the small stool, and acts as guardian to plaintiff’s son and will place plaintiff’s son on the stool provided he behaves himself.”21(21) Since the date of that case, it seems fairly certain that if a proper investigation were to be made into the records of the old Supreme Court and the native courts, it will be found that the percentage of cases concerning private or family stool lands dealt with and determined by the courts, [p.456] of [1961] GLR 448 will be about equal to, or perhaps slightly more than, the percentage of cases concerning public (Oman) or state stool lands dealt with at the same time.

I would make reference to only one more case dealing with family stool land before leaving the subject, and that is the case of Dugbartey v. Narnor.22(22) In the report of that case appeared the interesting and, for our purposes, significant, disclosure that in connection with the family stool involved in that suit, a letter dated the 3rd August, 1923 from the Acting Secretary for Native Affairs had been transmitted to inform the court: “that the Head of the Tettey-Ga family and occupant of the Tettey-Ga family Stool did not come under the provisions of the Chiefs’ Ordinance.” The Chiefs’ Ordinance mentioned in the letter was passed in 1904”23(23) and it introduced official confirmation of the election and installation of chiefs by providing in section 3, subsections (1) and (2) as follows:

(1) Any head chief or chief elected and installed in accordance with native custom may in his discretion apply to the Governor for confirmation of his election and installation, and the Governor may, if satisfied that his election and installation have been in accordance with native custom, confirm the same by writing under his hand…

(2) This section shall apply as well to head chiefs or chiefs elected and installed before as after the commencement of this ordinance.”

Similar provision was made for the confirmation of the deposition of a head chief or chief (see section

4). This official confirmation thus introduced, which was limited to public (Oman) or state chiefs, came henceforth to constitute the most important index of distinction between the public (Oman) or state chief on the one hand and the private or family chief on the other.

If, then, there has always been this very real and clearly acknowledged difference between chiefs and their stools, the question which arises is: was the use of the word “Stool” in the definition of “Stool land” above referred to, intended to apply to any or both kinds of stools or to only the public (Oman) or state stool? Applying ordinary canons of construction, it appears to me that the word “Stool” as used in the definition, followed by the explanatory words to the effect that it is the type that controls lands or interest therein for the subjects of the stool, should be given the more obvious and clearer meaning of a public, or state (Oman) stool such as controls public or communal (Oman) lands for the benefit of the subjects of the stool or members of the community; rather than the less obvious meaning of a family or private stool which controls family land for members of the family. Although as has been pointed out the use of the word might denote or have reference not only to public or Oman stools but also to family stools, there is no doubt that the more readily accepted signification is that of the public (Oman) or state signification, the other kind of stool being more usually described as “family stool”. Giving it the construction that it means public (Oman) or state stool only, accords with the other parts of the section providing for [p.457] of [1961] GLR 448 control by a head of a tribe for the benefit of the subjects of the tribe or a company captain for the benefit of the subjects of the company, as the case may be. As observed by Jessel, M.R. in Bentley v. Rotherham and Kimberwell Local Board of Health: “there is no doubt a rule, applicable to Acts of Parliament as well as to other legal instruments, that you may control the plainest words by reference to the context.”24(24) Blackburn, J., also has observed in Rein v. Lane:

“It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words but, you are to look at the context, the collocation, and the object of such words relating to such matter, and interprete the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances.”25(25) Having considered and ascertained that under the description in the definition section 2 of the Ordinance,26(26) it is “Stool lands” answering to the description of those attached to public (Oman) or state stools which are envisaged and made subject to subsection (1) (a) of section 75 of the Ordinance, it falls next to consider the descriptions and kinds of lands envisaged and made subject to subsection (1) (b) of the same section 75.

It is the submission of counsel for the administrator that:

“Section 75 subsection (1) (b)… seems to envisage that concurrence is to be granted to dispositions of land other than ‘Stool lands’. This is obviously so because subsection (1) (b) is in contrast to subsection (1) (a) which deals solely with dispositions of stool land by a stool. The only relevant difference between the two subsections is that if the land is ‘Stool land’ any consideration should be paid to (now) the Administrator of Stool Lands, whereas if it is not ‘Stool land’ no such consideration is payable to the Administrator.” The argument I think, is well founded and has to be upheld. As the terms of subsection (1) (b) of section 75 of the Ordinance clearly state, in every case where one who by reason of his being entitled to the free use of land under customary law has acquired possession of such land without payment of any consideration or in exchange for a nominal consideration, and having become entitled by customary law to alienate or dispose of such land, does so for valuable consideration to him who, not being so entitled to the free use of the land has to pay valuable consideration for the same, such alienation or disposition requires the assent or concurrence of the administrator to render it effectual or valid. The plain meaning of the subsection, in short, appears to be that where land is acquired by an individual or group under customary law enabling him or them to acquire the same gratuitously or for only a nominal consideration and he or they thereafter decide to alienate or dispose of it to one liable to pay valuable consideration for it, the transfer must have the assent or concurrence of the administrator.

It is, I believe, not generally unknown, at least so far as the older generation of people in Accra are concerned, that one of the causes directly responsible for the introduction of the particular legislation was [p.458] of [1961] GLR 448 the somewhat questionable, if not shady, practice or technique which came to be so much in vogue in Accra shortly after the notorious Accra earthquake in 1939 right up to about the time of the enactment of the Local and the State Councils Ordinance in 1951, whereby stool occupants or representatives conveyed large plots of valuable stool lands to their favourite subjects designedly to enable them to sell almost immediately afterwards to non-natives for large sums. The proceeds of sale in such cases were in the nature of things not brought into account at all in the accounting of stool funds of the stools which originally owned the land, and the practice created obviously a very unsatisfactory state of affairs from the point of view of the general body of subjects of the stools concerned, necessitating the introduction of some such legislation as the Ordinances with which we are now concerned. The effect, however, of the legislation introduced appears to have gone far beyond controlling just that type of questionable alienation or disposition and became alaramingly far-reaching. It is not possible in this, which was intended to be a short ruling, nor is it indeed, desirable, to deal with or consider all the possible instances in which possession or occupation of land may be obtained without payment of any valuable consideration, as envisaged by subsection (1) (b) of section 75 of the Ordinance. But the outstanding instances, at any rate, might be referred to. The first very important method, important because it is by far the commonest and most widely practised method, is that of occupation of stool lands by stool subjects. The two distinguished authors who have written of our customary law have both dealt with this matter of occupation of stool lands by stool subjects. Sarbah in his invaluable Fanti Customary Laws deals with the subject under chapter 4 concerned with “Tenures” (2nd ed. at p. 66) and has explained as follows: “According to native ideas there is no land without owners. What is now forest or unused land will as years go on, come under cultivation by the subjects of the stool, or members of the village community, or other members of the family.

The granting of permission to others and outsiders to reside on or cultivate the lands of a family, a stool, or a village community, is a practice of the greatest antiquity, and was in times past more universal than sale of land, which is of comparatively modern growth. The chief or king of a tribe, or headman of a family, can, with the consent of the whole or major part of the sub-chiefs, and councillors, village elders forming [the] body of [village] councillors, or senior members of the family, as the case may be, allow [even] strangers and foreigners to live on certain lands. In cases where the land is appurtenant to the stool of a king or head chief, the tenant becomes subjected to such stool, and he, with his people, are bound to perform such services, or pay such annual sums as may be declared to be performed or paid Yearly. Plots of land in the actual and lawful possession of a subject of the stool, or a member of the village community, or a member of the family or company, cannot, unless with the express consent of the person in possession be so granted. But where a person in possession of the public land abandons it, or his family have abandoned it for more than 10 years at least, the village headman and elders can allow another person to occupy the same.” He ends by pointing out at pp. 68-69 that:

“It must be borne in mind that no person can acquire by long uninterrupted possession, an adverse title against the owner of property, through whom or whose ancestors possession was first acquired . . .

[p.459] of [1961] GLR 448

Where the owner of land gives to a person permission to cultivate a portion of his land, and this person and his heirs continue the cultivation of such land, for upwards of forty years without paying any rent or giving any produce therefrom to the owner, such long possession does not destroy the title of the original owner and his representatives,”

Redwar touches on the subject in his equally invaluable Comments on Some Ordinances of the Gold

Coast, pp. 71-72 and states:

“Another point to be remembered is that waste land and jungle are, notwithstanding their unoccupied condition, not without an owner, every foot of land being attached to some Chief’s ‘Stool,’ or forming a portion of ‘Family Land’. It may be mentioned here that the Gold Coast native farmer follows a system of migratory cultivation which consists of clearing the bush by burning and planting the land for a certain time, removing to other lands at the determination of this period… so as to allow the soil previously cultivated to lie fallow, and in this way to recover its richness… Because of this generally followed practice, no land at the Gold Coast can, according to Native Law, be deemed to be waste land or of no value, as at any time permission may be given by the owner to clear and cultivate any portion of his jungle lands, in consideration of ‘tribute’ in money or kind, or even of some sort of quasi-feudal service rendered in return for the use of the land.” The learned author and judge refers to a case which came before him which raised the question of occupation of land by permission, namely Kwesi Abessibro & Anor. v. Kofi Ama27(27) in which he had occasion to point out that: “It is plain that, according to the contemplation of ancient native customary law (as embodied in numerous decisions in this Court as well as indicated by the evidence in this case), there is no such thing in the interior as an absolute transfer of land as between natives, whether by sale or gift and the only thing that passes is the usufruct or licence to use the land in certain ways, as disclosed by the agreement between the parties.” Since that case, subsequent decisions of the courts, ie. The old Supreme Court and native courts and tribunals of the pre-republic days, as well as the Privy Council, have been countless, including the outstanding case of Nchirahene Kojo Ado v. Buoyemhene Kojo Wusu28(28) in which the West African Court of Appeal upheld the decision of the Court of the Chief Commissioner of Ashanti that 200 years of occupation by the defendant and his subjects of the land of the plaintiff’s stool still left the defendant and his subjects only the usufruct in the land and that the title of the plaintiff’s stool still remained unimpaired. Meanwhile the old Supreme Court has had to apply equitable rules to evolve the principle that, certainly in the case of stool lands”, occupation in circumstances involving the expenditure of money as to lead the occupier to believe that he has become owner, may estop or preclude the “Stool” from asserting its title against the occupier. The evolution of the principle commenced, it is true, not in a case involving the occupation of stool land by a subject, [p.460] of [1961] GLR 448 but by strangers or outsiders namely the Bokitsi Concession, case29(29) in which Morgan, J. delivering the judgment of the Full Court, stated as follows:

“we are of opinion that the opposers have…also failed to prove generally that the land in respect of which the court below has declared the concession to be valid, was ever attached to the stool of Abinabina.

Assuming, however, that they had proved that at some former period it had been so attached, but that the

Iamfuris had, without any definite permission being granted to them, occupied it without paying tribute, and under such circumstances (as in the present case) as would cause them to believe themselves to be the owners of the land, and to incur pecuniary responsibilities in consequence of that belief, we think it right to state that in our opinion it would be contrary to the principles of equity to allow the native law to apply in its entirety, such law being, as we understand it, that the original owner of land who has not specifically divested himself of his ownership, can, after any length of time and under any circumstances, obtain recovery of his land from persons setting up an adverse title, whatever may be the detriment caused to such persons by the fact that the original owner chose to sleep on his rights.” But once the principles of equity had been invoked in a case where no express permission had been obtained to occupy stool land, there was no reason why they should not be invoked even in cases where express permission had been obtained to occupy. And so we find the same principles being applied to cases of express permission, as for example in Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu:30(30) In the joint judgment of the court (Kingdon and Petrides, C.JJ. and Yates, J.) the following appears:

“The three Courts below have found that it was the plaintiff’s ancestor who put defendant’s ancestor on the land and that in accordance with native law and custom the plaintiff remains the owner. We accept the finding and entirely agree that in accordance with strict native law and custom the plaintiff remains the owner. But there is a long series of decisions in which it has been laid down that the Courts will not allow the strict native law and custom to be invoked in such cases as this when the effect is, in equity, unjust. The principle may be said to have been first enunciated in an obiter dictum in what is known as the Bokitsi case. In the case Mr. Justice Morgan said: [The court referred to the passage already set out supra and continued:] This dictum has been frequently approved and acted upon, and one other only of the cases need be referred to. In the case of Kodwo Nkoom v. Kwamin Etsiaku (1922) F. C. 22, 1 at p. 5 Smyly, C.J., said:- “This ground is based on two reported cases, Concession No. 38 (Bokitsi No.1) (Renner Reports 239-243) and Quassi Bayaidee v. Quarmina Mensah (Renner Reports 45). Both these cases decide that the native law and custom that the original owner can go to sleep on his rights, and subsequently recover his land from persons setting up an adverse title whatever may be the detriment caused to such persons was contrary to the principles of equity. The test as to whether the native law and custom should be followed or not would appear to be, whether the adverse possession was of such a kind as to lead the persons so holding adversely, to believe they were the owners, and as such to have incurred pecuniary responsibilities.’

We think that in the present case a similar test should be applied and that, if the defendant can show that during his 200 years’ occupation he has been led to regard the land as his and has spent money in improving it or in defending his rights to it, then the plaintiff should now be estopped from setting up his claim of ownership, but if the defendant cannot show this, then the plaintiff is entitled to his declaration.” [p.461] of [1961] GLR 448

Of the cases in which the equitable doctrine enunciated by Morgan, J., in the Bokitsi Concession has been “approved and acted upon” as observed per curiam in Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu referred to supra, two leading or outstanding cases which deal directly with the occupation of “Stool land” by stool subjects are Lokko v. Konklofi31(31) and Boi Owusu v. Manche of Labadi (1932) judgment of Deane, C.J., dated 23rd February, 193232(32). In Lokko v. Konklofi, Brandford Griffith, C.J., said as follows:

“it is common in cases before this Court for a person to say that the land is his because he got it from his father or grandfather. He does not say so in so many words, but it is clear that his father or grandfather first farmed the land, then built a village on it, settled on it, and became in time to be recognised as the exclusive owner of the land. Possibly the first entry may have been with the consent of the stool, but gradually without further application to the stool, occupation ripened into full ownership. In this manner much stool land has become private land.”33(33) Still later in his judgment the learned Chief Justice continued as follows:

“[Counsel] urged that stool land could not be alienated without the consent of the stool holder and elders; but the consent need not be overt, it may be implied from circumstances… In the present case there has been continuous occupation for about 40 years, and the occupier has been permitted to build a village on the land and to make permanent farms. The present is like thousands of similar cases. Stool land has been settled by a father, the son has succeeded, has built a village and has made a home on the land; there has been no express alienation by the stool but there has been recognition of the exclusive occupation. Suppose the… stool fell into debt? I can quite understand that Konklofi would be expected to share the debt, for he is subject to the stool; but if the Stool land were to be seized in execution, can there be a doubt that Konklofi could successfully interplead? As soon as the Court ascertained that he and his family had had continuous occupation for 40 years, or over… it would decide that he had appropriated that portion of stool land to himself with the tacit consent of stool, and that it was no longer stool property but his own property.”34(34)

In the above passage, the sentence I would stress over and beyond all others is the sentence: “The present is like thousands of similar cases” confirming the recognised universality of the particular method of acquisition of land in this country by stool subjects’ occupation of stool land. Then in 1932 in the acquisition case entitled Re Land at Nkwantamang: Boi Owusu v. Manche of Labadi, Deane, C.J. in his unreported judgment dated the 23rd February, 1932, speaks of the same customary situation in more guarded and what has been generally accepted as more accurate language, when he said as follows:

“Summing-up, I would say that at the time when Amli (Plaintiff’s predecessor) settled at Nkwantanang the land on which the village stands and all the surrounding land was unoccupied land within the jurisdiction of the Labadi Stool and so was the property of the Labadi Stool; that the settlement made by Amli was made under the native custom which allowed any Labadi man to settle and farm Labadi Stool lands; that undoubtedly if the family (or for that matter any one else) can prove reasonably prolonged occupation coupled with expenditure of money or [p.462] of [1961] GLR 448 labour on any particular piece of land within the area claimed (plots for instance at Nkwantanang and Bawaleshie on which houses have been built would fall within this description) then their title in such cases would be acknowledged,”

In a later case, Appoh Ababio v. Doku Kanga35(35) Deane, C.J. again refers to the same customary practice in these words:

“Stool land may be occupied and used by subjects of the Stool, and once lawfully occupied by them cannot be alienated by the Stool without the consent of the occupiers, whose family property it thus often becomes.”

As already indicated there is, of course, the difference between the acquisition of a mere usufructuary title which is the more easily and generally acquired interest, and the acquisition of the absolute title by the operation of equitable principles such as Deane, C.J. speaks of in Boi Owusu v. Manche of Labadi and Verity, C.J. (Nigeria) also discusses in Suleman & Anor. v. Hannibal Johnson36(36) where he also mentions the case of Chief Secretary to the Government v. Fagbayi & Ors.37(37) As however, even in the case of the usufructuary owner, he is entitled to transfer his holding and interest, (see per Jackson, J. in the Kokomlemle Consolidated cases,38(38) and per Ollennu, J. in Ohimen v. Adjei39(39) the distinction referred to does not appear to be material from the point of view of the necessity of obtaining the assent or concurrence with which we are here concerned. Carving parcels out of or from stool lands therefore either as usufructuary or absolute titles in accordance with the principles which we have been discussing above is one of the most important and at the same time most widespread methods of acquisition of land gratuitously or for only a nominal consideration according to customary law.

The second method, equally important as the first, and which indeed, in nine cases out of ten, goes side by side with the first, is acquisition by succession on intestacy. Like the first method, it is also extremely common and widespread in the nature of things, and it is difficult to estimate under which of the two methods there takes place a greater quantum of acquisitions. Both Sarbah and Redwar lay great stress on this method, more, perhaps, than on the first method. Sarbah deals with it firstly under chapter 3 of his invaluable Fanti Customary Laws concerned with the subject “Property”, and at pages

61 to 62, states as follows:

“In the coast towns a member of a family may make separate or private acquisition and dispose of them as he pleases in his lifetime, provided none of his family nor any part or portion of his ancestral or family property contributed to the acquisition of such property. But any property of his that remains undisposed of at his death descends to his successors as ancestral (family) property . . . In this country joint property is the rule . . . If an individual holds property in severalty—that is, as sole owner and possessor—it will in the next generation relapse into a state of joint tenancy. . . If the land be free today in the hands of its acquirer, it will tomorrow resume its fetters in the hands of his heirs.”

[p.463] of [1961] GLR 448

He deals with the subject a second time under chapter 6 concerned with the subject “Alienation” and under sub-head (iv) concerned with the subject “Sale” at page 90 reiterates that:

“It is a universal custom that if an individual holds property in severalty, that is, as sole owner and possessor, it will in the next generation relapse into a state of joint tenancy.

If land be free today in the hands of its acquirer, it will tomorrow resume its fetters in the hands of his heirs.

He deals with it a third time under sub-head (v) concerned with the subject “Testamentary dispositions”, and at p. 97 states as follows:

“The owner of self-acquired property can in his lifetime deal with it as he pleases… As soon as he dies, his successor is entitled to all the property he died possessed of as heritable and ancestral estate subject to the usual rules of inheritance.” He deals with the subject a fourth time under chapter 7 concerned with “Succession” and at p. 101, states as follows: “The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of inheritance but by his mother and her issue according to seniority.”

There can be little doubt therefore as to the importance which Sarbah at any rate attached to the subject of the convertibility of private or self-acquired land to family or ancestral land by the operation of the customary law of succession on intestacy. In the same way, Hayes-Redwar, J. in his equally invaluable Commentaries lay stress on customary succession. Under chapter 3 concerned with “Application of English Law under section 14 of the Supreme Court Ordinance, 1876,” sub-head 5, dealing with “Conveyancing as practised in the Gold Coast” the learned judge and author has occasion to discuss the meaning and significance of “heir” in the contemplation of customary law, and states as follow (p. 23):

“Heir,’ also in the sense in which the word is used in the Native Law, is entirely different in its meaning from the same word as used in English law, since the Heir of Native Family Property takes it under the Native Law of Succession as Head of the Family Community for whose collective benefit he manages the property. The Heir in such case, has no right to the exclusive enjoyment of the property and cannot deal with it without the consent of the family.” Then under chapter 4, concerned with “the General Jurisdiction [of the Court] in native law under section 19 of the Supreme Court Ordinance, 1876”, he finds occasion to discuss customary succession under the sub-heads dealing with: (a) Marriage by Native Custom, under which he states at page 67: “It may, however, be stated that on the death of the husband, all his widows (and their children) have a right to reside in his houses jointly with the members of the Family Community to which the husband belonged. This right among the Fantis, and indeed among all the races who speak dialects of the Akan stock, must not be confused with the right of succession, which is confined to the member of the husband’s Family Community who upon his death is, (as its head) the heir according to native custom;” (b)Tenure and Inheritance, under which he makes a cursory examination of the rules of succession and states at page 74:

[p.464] of [1961] GLR 448

“It is an inflexible rule that descent shall be traced through females, male descendants, according to seniority, being preferred to females. A man’s first heir is his eldest surviving uterine brother (i.e. brother by same mother) and so on, according to seniority, through a succession of heirs male and female in the maternal line, males being preferred. Failing all heritable free blood, a man’s heir is his eldest son by a slave wife (i.e., house domestic). and in default of children by a slave wife the inheritance passes to slaves generally (i.e., not of the blood)… The above is necessarily a mere sketch of the line of devolution of Family Property;” and (c) Testamental Dispositions under Section 19 under which he discusses individual property and states at pages 79 and 80: “According to Native Law there is a presumption in favour of all land being jointly held by a Family or other Community, which presumption may, however, be rebutted by evidence that it has been acquired by an individual through his own personal exertions in trade or otherwise, without any, assistance from the Community of whom he is a member, or by gift to the individual apart from the rest of the Community . . . Joint Family or Stool Property is still, however, the rule and Individual Property the exception, as Mr. Sarbah says in his work on ‘Fanti Customary Law.’ Nevertheless, as Individual Property does in fact exist it is desirable to consider the position of the Individual Owner. It is clear that although the land of a native may be Individual Property, he is absolute owner of it, and has not an estate in fee simple, inasmuch as no land owned by natives is held, in strictness, by Tenure, as in England. . . It is also clear that he has an unfettered right to dispose of his Individual Property either during his lifetime or by Will. The Native Law, however, while recognising Individual Property, does not regard it with favour, and upon the Individual Owner’s death intestate, it is held that the property then becomes impressed with the character of Joint Family Property, and devolves upon his heir by Native Custom as the head of the Family Community.” It appears unnecessary to call attention to the countless cases decided by the Supreme Court exemplifying the application of these customary rules of succession which the distinguished authors have written about and to some of which we have made reference above. Even the few cases to which we made reference in connection with acquisition of land by occupation of stool or communal land, coincidentally also exemplify the customary method of acquisition by succession, as for example Lokko v. Konklofi, referred to above, in which Griffith, C.J. spoke of a locality where succession appears to be from father to son and said: “The present is like thousands of similar cases. Stool land has been settled by a father; the son has succeeded, has built a village and has made a home on the land.”40(40) In just the same way, an examination of each of the other cases cited will be found to exemplify that locally universal customary usage of succession on intestacy. Before leaving this necessarily customary examination of the two most common and widespread forms or methods of acquisition of land under customary law, from the point of view of our main enquiry, namely how far they come within the purview of subsection (1) (b) of section 75 of the Ordinance41(41), the feature about both methods which should be noticed, is the feature that in either case the beneficiary acquires without payment of any valuable consideration or at most only a nominal consideration. It would seem therefore that subsection (1)(b) of section 75 of the Ordinance was specially aimed, directed, or designed to affect lands acquired by those two or any other methods involving acquisition without payment of valuable consideration or for only a nominal consideration, under customary law, and that in those cases of alienation or disposition of any such private lands, i.e. acquired customarily by individuals or families without payment of consideration or upon payment of only a nominal consideration the intention of the legislation is that transfer thereof must have the assent or concurrence of the administrator.

As already agreed, this ruling is not to affect the grant of the parcel of land the subject-matter of Concession No. 1118 (Accra).

DECISION

Application for review dismissed.