KRAH v. YEBOAH AND ANOTHER [1961] GLR 592

DIVISION: IN THE HIGH COURT, SUNYANI

DATE: 21 OCTOBER, 1961

BEFORE: DJABANOR, J.

CASES REFERRED TO

(1) Aboagye v. Opoku [1960] G.L.R. 67

(2) Korang v. Atta & Ors. (1958) 3 W.A.L.R. 349

(3) Anane v. Mensah [1959) G.L.R. 50.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Brong-Ahafo Central Local Court, Wamfie, in an action by the plaintiff to recover from the defendants forest land adjacent to her farm, which the defendants had cleared.

COUNSEL

E.K. Wiredu for the defendant-appellant.

P.D. Anin for the plaintiff-respondent.

JUDGMENT OF DJABANOR J.

This is an appeal from the decision of Brong-Ahafo Central Local Court at Wamfie where the plaintiff respondent claimed that the defendants had cleared the forest immediately in front of her cultivated cocoa farm and asked the court to give her possession of same. The court gave judgment in her favour and the appellants have now appealed to this court on several grounds. The facts are not in dispute. Many years ago the first defendant’s stool, the Krontire stool of Dormaa, granted a large piece of forest land including the forest land in dispute, to certain Ningo people. Due to certain political events that happened in the area they left this forest land and went away. Recently the plaintiff and others, all subjects of Dormaa stool and eligible to farm on krontire stool land, entered into the forest and made cocoa farms therein. More recently still the defendants had also been making farms in the same area. In extending this industry they cleared the forest immediately adjoining the cocoa farms of the plaintiff [p.593] of [1961] GLR 592 for their own cultivation, thereby frustrating the plaintiff’s plans of extending her farming in that direction. The plaintiff therefore brought this action of trespass against the defendants. The trial local court properly found that: “The important issue to be decided by this court is whether the defendants have a right to cultivate the forest lying in the immediate front of another person’s old farm and such practice is permissible by native custom.” The trial court in framing the issue as it did appear to be misdirecting itself on the onus of proof, but I do not think it did. The custom was well expounded in the case of Aboagye v. Opoku1(1) as follows: “A subject of a stool is entitled to cultivate forest land or vacant stool land adjoining land he has already farmed, so as to reduce that forest area into additional farming land, provided that by so doing he does not interfere with a similar right which has accrued to another subject owning a farm on another side of the forest or vacant land”.

In other words the plaintiff is perfectly entitled to farm any vacant or forest land provided that it is not allocated. That to my mind means that the plaintiff cannot claim the said vacant or forest land unless and until she has commenced to farm it, or reduced it into her possession; and also provided that the forest land is unallocated. I have it on the authority of Korang v. Atta & Ors.2(2) that “unclaimed forest land cannot be regarded as having been reduced into possession sufficient to support an action for trespass brought by one seeking to develop and cultivate the land, until such time as the would-be possessor has established the boundaries, cleared the land, and brought it under cultivation.” This was the view expressed by the Asantehene’s court in a similar case of Anane v. Mensah3(3). I accept that as the correct statement of the native custom in dealing with this case; and guided by this principle I must hold that the plaintiff-respondent failed to establish her claim in the local court, for the following reasons: the boundaries of this forest land have not been ascertained; the forest has not been reduced into the plaintiff’s possession; and there is evidence from the plaintiff’s second witness that the forest had been previously allocated to the Ningos. A point was raised by the appellant that I must declare the inspection of the locus in quo void because it was carried out in the absence of the appellant. I refuse to do so. The appellant was invited to attend and he failed to do so at his own option. It is immaterial even if, as in this case, the inspection was really unnecessary.

For the previously stated reasons I must allow the appeal, set aside the judgment of the trial local court, including the order as to costs, and give judgment for the defendants-appellants. The appellants will have the costs of this appeal assessed at 30 guineas and in the trial court to be taxed.

DECISION

Appealed allowed.