NANA ASANI II v. ATTA PANYIN AND ANOTHER AND ATTA PANYIN AND ANOTHER v. ESSUMANG (CONSOLIDATED) [1971] 1 GLR 166

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 1 MAY 1970

BEFORE: OWUSU J.

CASES REFERRED TO

(1) Kotei v. Asere Stool [1961] G.L.R. 492, P.C.

(2) Addai v. Bonsu II [1961] G.L.R. 273, S.C.

(3) Baidoo v. Osei (1957) 3 W.A.L.R. 289.

(4) Total Oil Products Ltd. v. Obeng [1962] 1 G.L.R. 228.

(5) Sasraku v. David [1959] G.L.R. 7, C.A.

(6) James v. Oyewale, Court of Appeal, 14 January 1969, unreported.

(7) Thompson v. Mensah (1957) 3 W.A.L.R. 240, C.A.

(8) Sappor v. Narnor (1949) D.C. (Land) ‘48-’51, 197.

NATURE OF PROCEEDINGS

ACTION for a declaration of title, perpetual injunction and possession in respect of a stool land. The facts are fully stated in the judgment.

COUNSEL

James Mercer for the plaintiff in suit No. 21/63.

Agyeman for the defendants in suit No. 21/33.

Amposah-Dadzie for the plaintiffs in suit No. 10/66.

James Mercer for the defendant in suit No. 10/66.

JUDGMENT OF OWUSU J.

In 1958 the first defendant, as the head of the stool family of Ewumaso in the Breman Asikuma Traditional Area and as the representative of the stool and the oman of Ewumaso, and the second defendant as the Omanhene of Breman Asikuma Traditional Area instituted an action against the plaintiff in suit No. 21/63 as the ohene and representative of the stool and the oman of Bedum also in the Breman Asikuma Traditional Area, claiming as follows:

“(1) For defendant to declare his title to all that piece or parcel of land situate at Bedum in the Cape Coast District commonly called Bedum land which is part and parcel of the Ewumaso stool land called Edumangya valuing £G40,000, attached to plaintiff’s stool now occupied by and in possession of the defendant and his people by the permission of the plaintiff, bounded on the north by Breman-Asikuma stool lands, on south by Kweku Koom of Beseasi’s land and by lands belonging to Messrs. Yaw Anahuma and Egyir Ahum of Esiam, on east by Breman-Asikuma stool lands, and on west by land of Kojo Esiam of Anyinasu; and

(2) For defendant and his people, servants, agents, tenants and workmen and all others claiming right of access to the said piece or parcel of land derived from the defendant to be restrained on Oath from interfering or in anyway dealing with the land the subject-matter of the dispute.”

Earlier in 1943, the predecessor of the second defendant, the Omanhene of Breman-Asikuma had obtained judgment in respect of this same Bedum land against the Omanhene of Breman-Essiam in a case heard by

[p.169] of [1971] 1 GLR 166 the Judicial Committee of the Provisional Council of Chiefs, Cape Coast. The judgment was confirmed by Divisional Court, Cape Coast. The Ewumaso stool is a sub-stool to Breman-Asikuma and the caretaker of the Bedum land. In the late 1950’s the Bedum stool began to allocate portions of the Bedum land to strangers without reference to the defendants and claimed that the Bedum stool was the owner of the land. This action of the Bedum stool resulted in the 1958 action.

That action commenced at the Native Court B of Breman-Asikuma, but was transferred in 1959 to the Land Court, Cape Coast. At the hearing of this transferred suit the plaintiff, then defendant, counterclaimed for title relying inter alia on a gift of the land by the defendants confirmed by a document dated 23 April 1943. This document was executed during the 1943 litigation by the accredited representatives of both defendants and purported to make an out-right gift of the land to the plaintiff. Judgment in that suit entitled Atta Panyin v. Asani II [1961] G.L.R. 305 which was delivered by Adumua-Bossman J. (as he then was) on 9 June 1961, granted the defendants herein a declaration of title to the Bedum land, but their claim for possession and an injunction was refused. The headnote to the report at p. 306 reads:

“(1) by standing by whilst the title to the land was being litigated between the [Breman-Asikuma] stool and the Breman-Esiam stool, and by further giving evidence in favour of the [Asikuma] stool … the [Bedum] stool is estopped by conduct from denying the title of the plaintiff [in suit No. 21/63];

(2) the claim for possession and an injunction is misconceived and cannot succeed, because where an owner of land makes a customary grant to, and thereby confers a possessory or usufructuary title on another, he, the allodial owner cannot interfere with the possession of the usufructuary owner so long as the latter acknowledges the title of the former;

(3) the document of 1943 is not enough to make a valid customary gift of the land to the [Bedum] stool. Such a gift to be valid, must be made by the chiefs of the [Asikuma] and [Ewumaso] stools in public in the presence of witnesses, with the concurrence of the elders and councillors of the respective stools, and must be attended with all the customary rites and ceremonies incidental to the formal conveyance or transfer of land. The document however misled the [Bedum] stool into believing that it had become, by gift, the absolute owner of the land. The denial of the title of the [Asikuma and Ewumaso stools] is therefore excusable, and not such a denial as would otherwise render its usufructuary title liable to forfeiture.”

The interpretation to those findings has led to the two consolidated suits now before this court. For convenience I shall consider first suit No. 21/63.

[p.170] of [1971] 1 GLR 166

The plaintiff in this suit claims:

“(1) A declaration that he is entitled to live on the land in dispute with his subjects, people, workmen, agents and tenants subject to his paying the original annual tribute of £G2 8s 6d., a sheep, yam and a bottle of gin to the defendants.

(2) A perpetual injunction restraining the defendants and their privies from ejecting the plaintiff and his subjects, people, tenants, workmen and others claiming through the plaintiff, so long as the plaintiff pays the annual tribute in accordance with the law for the time being in force in Ghana.”

The defendants on the other hand aver that the plaintiff stopped paying tribute about four years before 1943 and further aver as follows:

“(5) Defendants deny molesting the plaintiff and his subjects or any one else and say that they have asked all strangers on the said land to attorn tenant to the defendants and defendants say that they have sued some of these tenants and obtained judgment against them and will refer to land suits 14-17 of 1962….

(7) The defendants say that plaintiff has not offered to pay arrears of tribute as alleged or any tribute at all … The defendants say that the plaintiff has been and is still encouraging the tenants on the land to refuse to accept the defendants as landlords.

(8) The defendants say that the plaintiff has let certain portions of the land to strangers without the knowledge and consent of the defendants.

(9) The defendants say that the plaintiff has sold certain portions of the land to strangers without the knowledge and consent of the defendants.

(10) They further say that after Adumua-Bossman J.’s judgment in 1961 the plaintiff has denied the title of the defendants.

The defendants, therefore, counterclaim for:

(a) Possession of the said land.

(b) A declaration or order that all the tenants should attorn tenants to defendants.

(c) Perpetual injunction restraining the plaintiff by himself, his privies, servants and agents from interfering with the defendants right, use and possession of the said land.”

The plaintiff in his reply denies every allegation contained in the defence and the counterclaim. After a careful perusal of the pleadings I formed the opinion that any issue arising therefrom would depend on whether or not the plaintiff had denied the title of the defendants after the said judgment in 1961.

In the course of the trial the defendants sought leave to make two amendments: (a) By adding to the end of para. (6) of the statement of defence the following: “and by the judgment of Mr. Justice Bossman [p.171] of [1971] 1 GLR 166 dated 1 June 1961; and that the matter is res judicata by the said judgment” and (b) By adding to paragraph (13): “An account of all moneys received by plaintiff from strangers on the said land.” On 17 March 1961, it became clear that the plaintiff was not refusing to pay and the defendants were also not refusing to accept the annual tribute. It was therefore ordered that the tributes agreed upon by the parties from 1943 to date be paid by the plaintiff to the defendants.

It shall be necessary to give first consideration to the counterclaim contained in suit No. 21/63: “(a) Possession of the land in dispute.

(b) A declaration or order that all the tenants should attorn tenant to the defendants.

(c) Perpetual injunction restraining the plaintiff by himself, his privies, his servants and agents from interfering with defendants’ rights, use and possession of the said land.”

In support of these claims the first defendant deposed that his ancestors gave the Bedum lands to the plaintiff’s ancestors for the use of Bedum people, but parts of the land have been given to strangers without the consent and concurrence of the defendants. He asked the strangers on Bedum lands to attorn tenants but the plaintiff would not allow the strangers to negotiate. The defendants’ counsel tendered through the plaintiff exhibits A, Al-9 agreement papers all dated 1 September 1947; exhibits B, Bl-12 also all dated 2 September 1937; and exhibit D an indenture dated 4 June 1958. It is so clear from these exhibits that all the assignments to the stranger farmers occurred long before Adumua-Bossman J.’s judgment.

To succeed in the counterclaim the defendants must produce evidence that the plaintiff has denied the title of the defendants since the date of the judgment by Adumua-Bossman J. No such evidence has been forthcoming. To allow the counterclaim is to re-open one of the issues that was before Adumua-Bossman J. in 1969 and which was ably considered and decided upon by the court. In my view the defendants are estopped by the judgment of Adumua-Bossman J., dated 1 June 1961, from re-litigating the very issue as to possession and perpetual injunction.

There is another aspect of the counterclaim which needs consideration. The defendants are seeking by way of counterclaim: “An account of all moneys received by plaintiff from strangers on the said land.” By the Administration of Lands Act, 1962 (Act 123), “Stool land” is defined in section 31 to include: “land controlled by any person for the benefit of the subjects or members of a Stool, clan, company or community as the case may be … and accordingly ‘Stool’ means the person exercising such control.” By this definition the land in dispute is obviously stool land and it is affected by section 8 (1) of the Act. [p.172] of [1971] 1 GLR 166

Section 17 provides:

“(1) All revenue from lands subject to this Act shall be collected by the Minister and for that purpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of any power of delegation conferred by this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy.

(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act.”

The counterclaim contravenes the provisions of section 17 (1) of Act 123. Neither counsel directed his mind to the provisions of the Act, but it is clear from those provisions that the only person who can sue for account of all moneys whether tributes or rents or purchase price, is the minister responsible for stool lands. No evidence was adduced by the defendants during the hearing to the effect that the minister has so delegated any power to them to sue and be sued in respect of Bedum lands. That part of the counterclaim offends against section 17 (1) of Act 123 and on that alone I shall dismiss the counterclaim for accounts by the defendants.

The plaintiff did not call any evidence in support of his contention that the first and second defendants by themselves and their subjects have been molesting the plaintiff and his subjects and people. He also never supported his claim that the defendants are demanding that the plaintiff and his subjects and those who farm on the land enter into a fresh tenancy agreement with them. The defendants deny molesting the plaintiff and his subjects or any one else, but admit, however, that they have asked all strangers on the land to attorn tenant to the two stools and have sued some of these tenants. By the defendants’ own admission there has been some molestation, though not physical, to strangers on Bedum lands. The question to be determined here is whether the defendants are entitled to demand these strangers attorn tenant to them. It must be reiterated that from the evidence there have not been any more strangers on the land since 1958, that is, before Adumua-Bossman J.’s judgment in 1961. The problem, therefore, centres on the very tenants or strangers who were on the lands before the 1961 judgment. These stranger farmers were on the land when this very court refused to grant possession to the defendants in 1961. If there was any need for the stranger farmers to attorn tenant to the defendants the defendants would have asked for the same in 1961. In my considered view the defendants are estopped from demanding any fresh tenancy agreements from the tenants on the land before Adumua-Bossman J.’s judgment and for this reason alone the plaintiff shall be entitled to an order of injunction restraining the defendants from molesting the old stranger farmers either by way of a court action or otherwise.

[p.173] of [1971] 1 GLR 166

I am, however, to consider whether the plaintiff can after the 1961 judgment grant any new lease or sell any more land to stranger farmers without the consent and concurrence of the defendants who have been adjudged the owners of Bedum lands. In Kotei v. Asere Stool [1961] G.L.R. 492, P.C., Lord Denning delivering the opinion of the Board stated at page 495:

“Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow-subject without obtaining the consent of the paramount stool: for the fellow-subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he lawfully may do.” In Addai v. Bonsu II [1961] G.L.R. 273, S.C., one Yadiga inherited a usufructuary interest in a cocoa farm from his maternal brother; he was paying yearly tribute to the Kenyasi stool, which was a caretaker for the Hiawuhene as overlord. Yadiga sold the cocoa farm to the plaintiff with the consent of the overlord but the Kenyasi stool refused to accept the plaintiff’s title. It was decided by the Supreme Court that despite the use of the words “fee simple” in the deed of conveyance executed by Yadiga the conveyance operated to transfer to the plaintiff whatever interest Yadiga had inherited from his brother, that is, a usufructuary right or possessory title. Again in Baidoo v. Osei (1957) 3 W.A.L.R. 289 it was decided by Ollennu J. (as he then was) that the determinable estate acquired by a stool subject was alienable without the necessity for consent by the stool so long as the alienation carried with it the obligation for the transferee to recognise the superior title of the stool and to perform the customary services due to the stool from the possessor of the land.

Again in Total Oil Products Ltd. v. Obeng [1962] 1 G.L.R. 228, it was decided that a stool subject would forfeit his usufructuary title to stool land in his possession if he denied the title of the stool. The only way in which a subject could be said to have denied the title of his stool was where he claimed that the land he occupied belonged to a stool other than the stool to which he was subject, and that he held the land as a grantee of that stool. It was further decided that a lease by a stool subject of land in his possession did not constitute an alienation of his usufructuary title in the land and the stool subject did not require the consent of the stool.

A string of decided cases in addition to those above cited support this view of mine that so long as the Bedum stool continues to pay the annual tribute and recognises both Ewumaso and Breman-Asikuma stools as its overlord, it can deal with the Bedum land to the extent of [p.174] of [1971] 1 GLR 166 its title. The Bedum stool can lease parts of the Bedum land not only to its subjects but also to strangers, it can even sell to strangers but the sale cannot confer more than the Bedum stool’s determinable interest. See Sasraku v. David [1959] G.L.R. 7, C.A. where it was stated in the headnote (at p. 8) that: “(5) the estate passing on a sale, as between natives, of Stool Lands is not an unqualified ownership, but a possessory right to enjoy the land and the usufruct thereof.” In James v. Oyewale, Court of Appeal, 14 January 1969, unreported, the Court of Appeal confirmed the judgment of Koranteng-Addow J. sitting at Sekondi on 10 March 1966: “I would rather hold that the people of Sefwi Bekwai by the grant made to them acquired a determinable estate or title in the land which is both inheritable and alienable.” This view is equally supported by Ollennu J. (as he then was) in his book Principles of Customary Land Law in Ghana at pp. 54-55 where he states:

“The determinable estate, as already stated, is just a qualification or burden on the absolute or final title. It has co-existence with the absolute ownership. It is the most perfect estate which a subject or member of the family or community may have in communal, tribal or stool land. Its existence is concurrent with the existence of the absolute ownership, which latter is generally dependent upon the occupation or possession by the subject.

So long as the subject acknowledges his loyalty to the stool or tribe, his determinable title to the portion of stool land he occupies prevails against the whole word, even against the stool, community or tribe.” And see Thompson v. Mensah (1957) 3 W.A.L.R. 240, C.A. In Bentsi-Enchill’s Ghana Land Law at p. 11 7 it is stated:

“Furthermore, it is necessary to observe that whoever purchases land within a certain polity necessarily places himself under the jurisdiction of that polity in respect of the land purchased. The welcome given to stranger settlers on community land in the past was based in large part on the expectation and assurance of the assistance obtainable from them in times of emergency, such as war. Strangers not obliging in this way would cease to be welcome. Strangers could not therefore escape from making some sort of contribution to the community on whose territory they had now come to settle. The services rendered formerly, however, varied from place to place; and, in modern times, have ceased to be significant in many areas, at least for the generality of the populace, except in the form of stool levies or taxation for various communal purposes. Now that the jurisdiction of the old indigenous states is being ousted by the new machinery of local and central government with its new machinery of taxation, it has become less necessary to presume the existence of any unexpressed restrictions or reservations in grants to strangers.” [p.175] of [1971] 1 GLR 166

These views of Ollennu and Bentsi-Enchill supported by the numerous cases referred to above fortify and indeed sanctify the possessory title in the Bedum stool. Had the Bedum stool even denied the title to Bedum land by the Ewumaso and Breman-Asikuma stools, a fact that was not supported by any evidence, it would not automatically forfeit the right of the Bedum stool and its people to the land unless and until proceedings had been initiated.

From the proper interpretation of Adumua-Bossman J.’s judgment and my decision in land suit No. 21/63 I do not see how the action in land suit No. 10/1966 can be maintained. Kwame Essumang, the defendant in this suit is a stranger farmer who derived his title from the Bedum stool. He was on the land prior to the commencement of the action before Adumua-Bossman J. which declared a possessory title in the Bedum stool. Since the Adumua-Bossman decision in 1961 estops the Ewumaso and the Breman-Asikuma stools from denying the possessory rights of the Bedum stool, the judgment in the Asikuma-Ajumako-Enyan Local Court on 29 March 1962, ordering the defendant to approach the plaintiffs for the purposes of entering into a tenancy agreement and the subsequent appeal No. 16/62 before Charles J. on 18 December 1962 are null and void. I should have thought that if the plaintiffs in this suit had any claim to compel the defendant to attorn tenant, they would have done so during the trial before Adumua-Bossman J. The position since 1961 has not altered with respect to Bedum stool land. The Bedum stool had in 1962 and still has possessory title in the land in dispute. The plaintiffs herein, therefore, were estopped per rem judicatam from taking the action in the local court: See Sappor v. Narnor (1949) D.C. (Land) ‘48-’51, 197.

In the circumstances I shall dismiss the plaintiffs’ claim in this suit and give judgment for the defendant. I may at this stage make some observations. It is indeed difficult to understand the attitude of the parties to suit No. 21/63 and particularly of the Ewumaso stool in view of Act 123. Section 17 of the Act has already been referred to in this judgment. Section 18 provides:

“All sums collected by or transferred to the Minister under this Act, shall, subject to the provisions of this Act, be paid into a Stool Lands Account.”

Section 19 (1) also provides:

“Out of the moneys standing to the credit of the Stool Lands Account there shall, subject to subsection (2) of this section be paid to the local authorities in whose areas the lands are situated from which those moneys are derived such amounts as the Minister may by order determine.”

I take judicial notice of the fact that Breman-Asikuma, Ewumaso and Bedum are all within the Breman Asikuma Traditional council and the Breman Asikuma Local Council. There are also branches of the Stool Land Secretariat established all over the appropriate regions which collect [p.176] of [1971] 1 GLR 166 all royalties, revenues, rents, tributes and other payment for the improvement and enjoyment of both traditional and local councils. It is my strong recommendation that advantage be taken under this Act to enable litigation, now ruining one of the prosperous cocoa growing areas in the country to come to an end.

The interim injunction placed on the land in dispute on 11 March 1963 is hereby revoked and all moneys collected by the receiver and manager shall be released forthwith to the plaintiff in suit No. 21/63. Whatever happens to the amount is between the plaintiff and the Stool Land Secretariat. I take this view because already the arrears of tributes have been paid to the defendants. The costs for the plaintiff in suit No. 21/63 are fixed at 300 guineas for counsel; other costs to be taxed. Costs for the defendant in suit No. 10/66 shall be 100 guineas for counsel; other costs to be taxed.

DECISION

Judgment for the plaintiff in suit No. 21/63 and for the defendant in suit No. 10/66. B.T.A.