NKWANTABISAH III vs. BONSU [1997-98] 1 GLR 892

CASES REFERRED TO

(1) Banahene v Hima [1963] 1 GLR 323, SC.

(2) Akyem Abuakwa Stool v Adansi Stool (1957) 3 WALR 171; sub norn Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95; [1957] 3 WLR 830; [1957] 3 All ER 559, PC; affirming (1952) 14 WACA 149.

(3) Kotei v Asere Stool [1961] GLR 492, PC.

(4) Robertson v Akramah II (Consolidated) [1973] 1 GLR 445, CA.

(5) Atta Panyin v Asani II; Atta Panyin v Assuman (Consolidated) [1977] 1 GLR 83.

(6) Budu v Ceasar [1957] GLR 410.

(7) Osu Mantse (Claimants); In re Public Land (Leasehold) Ordinance [1959] GLR 163.

(8) Ohimen v Adjei (1957) 2 WALR 275.

(9) Thompson v Mensah (1957) 3 WALR 240, CA.

(10) Ghassoub and Ghassoub v Sasraku [1961] GLR 496, PC.

(11) Ayisi v Asibey III [1964] GLR 695.

(12) Adjowei v Yiadom III [1973] 2 GLR 90, CA.

(13) Abban v Sago (1883) Sar FCL 156.

[p.896] of [1997-98] 1 GLR 892

(14) Gyeabour II v Ababio [1991] 2GLR 416, CA.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff, the Adontenhene of Ashanti, from the decision of the trial court dismissing his action against the defendant, the chief of Ahwiaa, for inter alia, a declaration that it was wrongful and unlawful for the defendant to allocate, grant or alienate any portion of Ahwiaa land without the prior knowledge and consent of the plaintiff. The facts are sufficiently stated in the judgment of Benin JA.

COUNSEL

WA N Bossman (with him Obeng Manu) for the plaintiff-appellant.

Totoe for the defendant-respondent.

JUDGMENT OF BENIN JA

Benin JA delivered the first judgment at the invitation of Lamptey JA. The endorsement on the plaintiff’s writ of summons sought these reliefs against the defendant:

“(1) A declaration that the 1916 judgment of the Chief Commissioner of Ashanti (Central Province) in a suit dated 26 March 1908 between Chief Kwame Frimpong v Chief Kwaku Duah and Kwame Adabor is binding on the defendant herein the Ahwiaahene and all who claim through Atipin stool.

(2) A declaration that it is wrongful and unlawful for the defendant to allocate, grant or alienate any portion of Ahwiaa land which is the plaintiff’s stool land to other persons without the prior knowledge or consent of the plaintiff.

(3) An order for account to be taken between the defendant and the plaintiff in respect of all allocations or grants made by the defendant of the plaintiff’s said stool land at Ahwiaa. Or in the alternative general damages for conversion.

(4) An order restraining the defendant, his assigns and representatives from granting, allocating or whatever alienating the plaintiff’s said stool land without the prior knowledge and consent of the plaintiff.”

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The plaintiff’s case as pleaded is as follows: The plaintiff is the Adontenhene of Ashanti and sued in that capacity for and on behalf of the Adonten stool. The defendant is the Ahwiaahene and the action is thus brought against him in that capacity and against the Ahwiaa stool in the Atipin “fekuo” of Kumasi. The plaintiff averred that about 1908 his predecessor, Chief Frimpong, instituted an action against Chief Kwaku Duah and Chief Kwame Adabor also representing the Ahwiaa stool for a declaration of ownership of the village of Ahwiaa and £300 damages. The plaintiff’s predecessor won that action and there was no appeal. The plaintiff averred in paragraph (8) that:

“(8) by reason of the said judgment the defendant’s stool and the Atipin stool and all those who claim thereunder are estopped per rem judicatam from denying or in any manner whatsoever challenging the plaintiff stool’s title to the Ahwiaa land.”

All the foregoing averments were admitted by the defendant in his statement of defence.

It was the plaintiff’s case further that the said judgment notwithstanding, the defendant has been allocating and granting portions of the said Ahwiaa land to non-Ahwiaa citizens thereby alienating those portions of the said land without the prior knowledge or consent of the plaintiff, an act which it described as wrongful and unlawful. Hence the reliefs endorsed on the writ.

In response to the plaintiff’s averments, the defendant pleaded also that the said judgment declared the possessory title of the defendant’s stool in the said land. And moreover, the terms upon which the defendant’s stool was to occupy the land were spelt out in the judgment. He also pleaded estoppel against the plaintiff. The defendant admitted having allocated portions of Ahwiaa stool land to other persons but said this was limited to only those portions adjudged in their favour by the 1916 judgment.

In his reply, the plaintiff denied that any possessory title was given to the defendant by the judgment. That what was adjudged in the defendant’s favour was the right to occupy the village and the surrounding farms then in their possession. But as a stool nothing was adjudged in favour of the defendant.

[p.898] of [1997-98] 1 GLR 892

At the summons for directions the issues agreed upon for trial were: (i) whether or not by the judgment, the land on which the village of Ahwiaa then stood was declared to belong to the Adonten stool; (ii) whether the defendant is estopped by this judgment from denying the plaintiff’s title to the Ahwiaa land; (iii) whether the defendant has the right to allocate, grant or alienate any portion of the plaintiff’s said land; and (iv) whether the plaintiff is entitled to the reliefs he seeks.

No viva voca evidence was adduced at the trial; both counsel only addressed the court on the 1916 judgment and its implications. That being so I consider it pertinent to set out the entire 1916 judgment here for its full force and effect. It was given by Arthur J Philbrick, Commissioner, Central Province and it reads:

“In this action Chief Frimpong claims a declaration that the village of Ahwiaa close to mile 6 on the Ejura road is on his land.

The ancient history of the people inhabiting this village is not in dispute. They were sold by the Adontinhen to the King of Ashanti together with the three communities living at Dinwhan, Abira and Esuase.

After the sale the people remained in their ancestral village but they were given to a new stool—Etipin—of which Chief Kwaku Duah the defendant is now the representative. The point I have to decide is whether the land on which the villages stool passed with the villages to their new master at the sale.

At that time land had little value and I should have no difficulty in deciding that the land passed with the people but unfortunately there is evidence to show that in the case of at least one of these villages—Dinwhan—tribute for the land has been paid to the Adonten stool.

The defendant in first giving his evidence stated as follows: ‘These four villages were handed over with all their people. They were given to me to make me a Chief. They have always been under me since and have never paid tribute to anyone else.’

[p.899] of [1997-98] 1 GLR 892

When however the defendant was confronted with his evidence given before the P.M. in Bejua v Kujo Broni he had to admit that tribute was paid on the Dinwhan land though he attempted to explain it by saying the tribute was for the use of land outside Dinwhan village but I do not think that Kujo Broni’s evidence which was confirmed in toto by the present defendant can possibly admit that view to be taken by the court. The defendant also admitted at the last hearing that some of the land of Abira did not belong to him but was the property of Chief Toto.

Under these circumstances it is impossible for me to come to any other conclusion than that the property in the land of Ahwiaa did not necessarily pass with the inhabitants from the Adonten stool to that of Etipin and I have to consider the evidence carefully to find out whether anything has happened since which shows in whose possession the land has been considered to be.

The defendant claims that his people have uninterruptedly occupied the village without paying tribute but then again the Adontinhin has a family living in the village which also has lived there without paying tribute to the defendant. Kofi Sanchere also has people and land in the village which he claimed to have bought from defendant.

The plaintiff made an attempt, as he was bound to do to prove that he collected tribute regularly but it did not succeed.

I find that there is nothing to show that the land passed and that therefore it is actually still part of the Adontin stool lands.

Therefore the plaintiff succeeds in his action but I find also that defendant’s people by long uninterrupted residence have established their right to occupy the village and the surrounding farm now in their possession without disturbance and without tax or contribution of any sort with the exception that a portion of any bush meat killed or any wild product of the soil collected on this land should go to the Adontinhin to mark his ownership.

No oath fees will accrue to the Adontinhin unless his oath is sworn.

[p.900] of [1997-98] 1 GLR 892

The plaintiff will recover £30 costs from the defendants.”

Both counsel made their submissions on the basis of this judgment.

Counsel for the plaintiff submitted (i) that the land was adjudged to belong to the Adonten stool; (ii) that no interest in the land was given to the stool of Ahwiaa; and (iii) that it is the people of Ahwiaa who were given right of occupancy to perform certain rights to the Adonten stool. For his part, counsel for the defendant submitted that the judgment found the defendant’s possessory interest in the land. That as between the allodial owner and the Usufructuary owner, it is the latter who has the right of alienation object to a right of recognition of the allodial ownership.

The trial court first decided what interest the defendant’s people acquired in the land. The learned trial judge held that since they were subjects of the Adonten stool and were in occupation of he Ahwiaa lands before they were sold to the Asantehene, and that they paid no tolls of any sort, “then to all intents and purposes, they have acquired a title which is lesser only than that of the allodial owner.” The learned trial judge also held that “after the sale, they went away with whatever interest they acquired in the land which interest enured to the benefit of their new master since they were not asked to relinquish same.” She rejected the submission that “it was the people and not the stool who acquired the possessory rights.”

From these holdings and the conclusion reached by the trial court, it is clear that the learned trial judge upheld the defendant’s position that the usufructuary title to the land was vested in the Ahwiaa stool. She said:

“where the usufructuary owner alienates land in his possession, he does so without the prior knowledge and consent of the allodial owner. He cannot all the same grant any greater interest than he has in the land himself. The grant is always subject to the recognition of the allodial ownership; hence in Ashanti, the Asantehene’s concurrence.”

She concluded by saying that:

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“land is sold for valuable monetary consideration and it seems to me that it is absurd now to talk of bush meat and wild products. Consequently, to mark the Adontenhene’s title in the Ahwiaa lands, part of moneys accruing from lands sold by the Ahwiaa stool must be given to him. This is normally a token sum and the parties are to agree upon what they consider to be the token sum having regard to the present circumstances …

Accordingly, the plaintiff’s claim so far as reliefs (2) and (4) go is dismissed and relief (3) is allowed in part together with relief (1).”

Against that judgment, the plaintiff has appealed. The grounds of appeal contained in the notice of appeal filed on 12 February 1993 and the supplementary grounds of appeal filed on 1 April 1996 which were allowed to be argued together are:

First, having allowed the plaintiff’s claim as set out in relief (1) of the writ of summons and also resolved issue (1)(ii) of the issues set down for trial on the ground that the defendant “cannot approbate and reprobate”, it was wrong for the learned trial judge to dismiss the plaintiff’s claim as stated in reliefs (2) and (4).

Secondly, the learned trial judge’s view that “to mark the Adontenhene’s title in the Ahwiaa lands part of the moneys accruing from lands sold by the Ahwiaa stool must be given to him” is contradictory in terms, vague, imprecise and capable of shooting out fresh litigation. It must accordingly be set aside.

Thirdly, the judgment of the Commissioner Central Province, Arthur J Philbrick says in part: “I find that there is nothing to show that the land passed and that therefore it is actually still part of the Adonten Stool lands.

Therefore the plaintiff succeeds in this action but I find also that the defendant’s people by long uninterrupted residence have established their right to occupy the village and the surrounding farm now in their possession without disturbance and without tax or contribution of any sort with the exception that a portion of any bush meat killed or any

[p.902] of [1997-98] 1 GLR 892 wild product of the soil collected on this land should go to the Adontinhin to mark his ownership.”

From this judgment it is clear that the right to occupy or possess the village and the farm surrounding it was given to the people of the defendants but not the defendants themselves. Consequently, the learned trial judge was wrong in conferring on the defendant-respondent the right to alienate or sell the plaintiff’s land.

Fourthly, the people having ceased to be subjects of the Adonten stool and having become subjects of the Atipin and Ahwiaa stools after their sale (transfer), they also ceased to have a usufructuary interest on equal terms with the Adonten stool subjects in the land. The interest they have in the land is what the judgment gave to them and no more. The learned judge below erred in ignoring the judgment in this regard.

Fifthly, vis-à-vis the Adonten stool, neither the Atipin stool nor the Ahwiaa stool was given any right or privilege by the judgment of Arthur J Philbrick. The two stools lost the contest for ownership of the Ahwiaa land. Consequently, the learned trial judge erred in giving to the Ahwiaa stool the unknown right to sell the adjudged Adonten stool land and give the Adonten stool part of the moneys accruing therefrom. Equally wrong is the recommendation to the parties “to agree upon what they consider to be a token sum having regard to the present circumstances to mark the Adontenhene’s title.” With all due respect this is incongruous.

Sixthly, the confession of the learned trial judge in the following words: “I am not very sure whether the people of Ahwiaa are now technically strangers to the Adonten stool” makes it evident that it was from the said unsure premise that such sweeping terms as “whatever interest the people acquired in the Ahwiaa lands … they were allowed to hold on to these rights … “ etc etc which they transferred to their new master, when they were sold were made. These untenable statements reveal a patent misunderstanding, or lack of appreciation, of the import and effect of the judgment of Arthur J Philbrick. Accordingly the entire judgment of the court below is unsatisfactory and as such must be set aside.

Seventhly, had the learned trial judge appreciated the meaning and import of the part of Arthur J Philbrick’s judgment which

[p.903] of [1997-98] 1 GLR 892 states: “No oath fees will accrue to the Adontinhin unless his oath is sworn” she would have realised that the people were not allowed to transfer rights which they acquired while they were Adonten subjects to their new master when they were sold as the learned trial judge erroneously held. The rights they were given were those specifically set out by the judgment and nothing more.

This case is not the familiar type in the sense that the people of Ahwiaa following their transfer to the Atipin stool, became subjects of the said Atipin stool and ceased to be the subjects of the Adonten stool. Under normal circumstances subjects of a stool occupy land owned by that stool and acquire the usufructuary title thereby. If people occupy land belonging to other stools they are prima facie regarded as strangers of that stool and different incidents of occupation apply, they do not acquire the usufructuary title. In this case, the people of Ahwiaa acquired the usufructuary title before their transfer to the Atipin stool, but that act of transfer did not go with the land as found by the 1916 judgment. Yet, they remained on the land, they have their own stool called the Ahwiaa stool which in turn is under the Atipin stool, yet neither the Ahwiaa nor the Atipin stool owned this land occupied by the people of Ahwiaa. The 1916 judgment declared ownership of the land in the Adonten stool, the same judgment asserted the possessory title of the people under the Ahwiaa stool in this land subject only to the performance of the customary services like giving portion of bush meat and wild produce from the land to the Adonten stool. Indeed, the judge was right in saying that the rendering of these services was to acknowledge the title of the Adonten stool to the land for that is the customary law. In his book Akan Laws and Customs (1928), p 222 Dr J B Danquah wrote this important passage:

“A person killing big game on a stool land, whether on the stool land of his own town or on another Chief’s Stool land, has to hand over, by way of toll, the leg of the game so killed, to the owner of the stool land, and the chief has to send a share to the paramount stool in acknowledgement of its ultimate ownership. That is to say, any stool receiving tax or toll on a land has a prima facie right to such land. This is widely believed to be strong evidence of title because it is

[p.904] of [1997-98] 1 GLR 892 inconceivable that hunters and other strangers coming to a land in another part of hesic(4) state should regularly yield the stool’s portion to a chief who was not generally reported to be the owner of the land.”

The further relevance of this passage is that the subject does not perform the customary service direct to the paramount stool but does so through the substool occupant who often is the odikro.

Indeed, without substools there will be no paramountcies and without subjects there will be no substools. Thus when in the 1916 judgment it was said that the people of Ahwiaa had possessory title by way of uninterrupted occupation, it did not exclude the stool of Ahwiaa, nor was it expected that the people of Ahwiaa would individually go to the paramount stool or sub-paramount stool (as the judge below called it) of Adonten to perform the customary services; they would act only through their own stool at Ahwiaa. Stools represent the sovereignty of the people and held land to the benefit of the people, so when land is said to belong to the people it means stool land in the occupation of individual subjects and families and it is the stool which is the rightful person with capacity to deal with such land. The plaintiff’s ancestor recognised this fact that was why in 1908 he sued the occupants of the Atipin and Ahwiaa stools and recovered the judgment in 1916; he did not sue the people of Ahwiaa, the subjects of the Ahwiaa and Atipin stools. Thus any reference in that judgment to land occupied by the Ahwiaa people must, in my view, refer to Ahwiaa substool lands in possession of the subjects of the Ahwiaa substool. I use Ahwiaa substool because it was a stool under the Adonten paramountcy or sub-paramountcy before it came under the Atipin stool but still as a substool. Indeed, the judgment found that the “defendant’s people” have possessory rights over the land.

That the stool is the appropriate representative of the people or sometimes called oman did not escape the attention of the Supreme Court in the case of Banahene v Hima [1963] 1 GLR 323, SC. Even though the facts in that case are not on all fours with the instant case the principle stated at 327 is pertinent. It was there said by Akufo-Addo JSC (as he then was) that properties owned by the oman of Kwamang are vested in the odikro of Kwamang who is the legal or natural representative of the stool of

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Kwaman. He went on: “To say that the Oman of Kwamang owns property is only another way of saying that the stool of Kwamang owns that property.”

Thus when the court in the 1916 judgment accepted the defendant’s evidence that their people had settled for several years uninterruptedly on this land without paying tribute, it was only affirming that the land belonged to the people of Ahwiaa represented by their stools the Ahwiaa and Atipin stools. Any other interpretation that seeks to draw a clear distinction between the people of Ahwiaa and the Ahwiaa stool over ownership of the Ahwiaa land would be wrong, and would be defeating the essence of the 1908 litigation namely, title to stool land which involved the three stools over this land. That judgment created estoppel against the three stools and their subjects for no “people of Ahwiaa” can get up to challenge the title of the plaintiff to the Ahwiaa land; the plaintiff would be the first to resist that on account of estoppel per this 1916 judgment even though the “people of Ahwiaa” technically were not parties to that suit: see Ofori Atta II v Nana Abu Bonsra II (1957] 3 All ER 559. In my view therefore, the submission made by counsel for the plaintiff both here and in the court below that no interest in the land was declared in favour of the stool of Ahwiaa but only in the people of Ahwiaa is a perfect non sequitur and untenable both on the facts and as determined in the 1916 judgment and in customary law which regards the stool occupant as the trustee of the land for the clans, tribes, families who are subjects to the stool, as well as the individual stool subjects. The stool is said to be owner of the land but it is in so far as it represents the sovereignty of the people. With this background, I proceed to examine the various grounds of appeal argued by counsel for the plaintiff, namely grounds (1), (3), (4), (5), and (7) as set out above.

He argued grounds (1) and (3) together. He submitted that having allowed relief (1) endorsed on the writ, it was wrong for the trial court to refuse reliefs (2) and (4). He said once there was a clear declaration that the land is part of the Adonten stool lands, whosoever deals with it must do so with the knowledge and consent of the plaintiff. The defendant’s people were only given possessory right to the land. That bush meat and wild products are not part of the land, so apart from right of occupancy no

[p.906] of [1997-98] 1 GLR 892 more right was given. It was wrong for the court to treat all the land occupants, namely the people of Ahwiaa and the citizens of Adonten as having usufructuary rights. This is because after their transfer, the people of Ahwiaa ceased to enjoy the usufructuary ownership but only possessory rights. Thus it was wrong to apply principles on usufructarysic(5) ownership to this case. It is wrong to say that the rights the people of Ahwiaa acquired whilst under the Adonten stool were transferred to their new master. It was only the subjects of the Adonten stool living at Ahwiaa who could enjoy the usufruct whether they lived there before or after the sale. But subjects of Ahwiaa or Atipin living at Ahwiaa who lived there after the sale could not enjoy the usufruct because they were no longer citizens or natives of Adonten.

Grounds (4) and (5) were also argued together. He referred to the portion of the judgment that restates the customary law position in relation to the allodial owner vis-a-vis the usufructtuarysic(6) owner with regard to alienation of land. Briefly put, it is that it is the usufructuary owner who has the right to alienate land to the extent of the interest he holds in it, subject, however, to the recognition of the allodial ownership. Counsel submitted that this principle does not apply to strangers in occupation like the people of Ahwiaa after their transfer. He also submitted that the fact that the court directed the parties to meet to agree on what token sum the defendant is to pay the plaintiff for alienation of the land is likely to bring about another litigation. Since the court admits ownership is vested in the Adonten stool it is contradictory in terms to grant the right to sell to the Ahwiaa stool. On ground (7) counsel submitted that no rights in the land were transferred to their new master whensic(7) the people of Ahwiaa were.

For his part counsel for the defendant argues that since the 1916 judgment adjudged the Ahwiaa people to have possessory rights over the land they were the rightful people to alienate it, without reference to the paramount title holder. He cited these cases in support: Kotei v Asere Stool [1961] GLR 492, PC; Robertson v Nii Akramah II (Consolidated) [1973] 1 GLR 445 at 454, CA; and Atta Panyin v Nana Asani II; Atta Panyin v Essuman (Consolidated) [1977] 1 GLR 83. That the people of Ahwiaa are represented by their stool.

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The fact that the possessory rights of the Ahwiaa people were adjudged in their favour in the 1916 decision is never in doubt; a fact conceded by counsel for the plaintiff. What he seriously contended was that the incidents of possessory title ownership are entirely dissimilar to those of usufructuary ownership. Whereas a usufructuary owner can alienate the land, the possessory title owner cannot. I think this is clearly misconceived and I believe it is this misconception on the part of counsel for the appellant that has sought to complicate an otherwise very simple and straightforward case.

At customary law there is no distinction between a subject who has the usufructuary title and one who has possessory title; it is the same thing. It is the right of possession which is given the legal connotation usufruct. A subject who possesses vacant stool land has the possessory title otherwise called the usufructarysic(8) title or determinable title. Ollennu in his book, Principles of Customary Law Land in Ghana at p 9-11 uses these words interchangeably to mean the same thing. For instance at page 10 he writes:

“The determinable or usufructuary title is the right of the individual subject of the stool or member of the family, to the enjoyment and even to a right of transmitting his individual enjoyment”

(The emphasis is mine.) In the very next paragraph the learned author writes: “Another form of usufructuary or possessory title is the subject’s right in land … “ (The emphasis is mine.)

Apart from this text writer’s position, various decisions handed down from the courts do not distinguish between usufruct and possessory title. A few instances will be given here. In the case of Budu II v Caesar [1959] GLR 410 at 426 Ollennu J (as he then was) rightly expressed the custom to be this: “By customary law, a subject of a stool is entitled, either by express or implied grant from the stool, to occupy any vacant portion of the stool land; the occupant of such portion of the land becomes the owner of the possessory title in it … A subject who so occupies stool land is not liable to pay any

[p.908] of [1997-98] 1 GLR 892 tolls or tribute of any kind to the stool; all that is due from him to the stool are the usual customary services.”

That involved Akwamu stool lands. And in the case intituled: In Re Public lands (Leasehold) Ordinance and In re Land Acquired at Accra for Public Works Department Workshop; Osu Mantse (Claimants) [1959] GLR 163, it was held that a subject has an inherent right to occupy any vacant portion of the stool land, and such occupation is presumed to be upon a grant by the stool that the subject who has acquired such a possessory title is entitled by custom to alienate it. The point to be noted here is that the title acquired by subjects of portions of stool land is said to be the possessory title and that the right to alienate it is vested in the subject.

On the other hand in a case like Nii Amon Kotei v Asere Stool (supra) the Privy Council described the title acquired by the Nikoi Olai family who belonged to the Asere stool as the usufructuary title and with it a right to alienate same so long as it did not prejudice the right of the Asere stool to its customary services. This was followed by the Court of Appeal in Robertson v Nii Akramah (Consolidated) (supra). See also Ohimen v Adjei (1957) 2 WALR.275; and Thompson v Mensah (1957) 3 WALR 240, CA. In my view therefore when the 1916 judgment declared that the possessory title to the Ahwiaa land was vested in the “defendants’ people” the defendants therein being the occupants of the Atipin and Ahwiaa stools, the court meant nothing more than to say they had previously acquired the usufructuary or determinable title to the land as citizens of Adonten and this carried with it no tolls or taxes except the rendering of the usual customary services.

All the text writers and decided authorities agree that it is the owner of the possessory or usufructuary or determinable title to land who has the right of alienation. The learned writer Casely-Hayford in his book Gold Coast Native Institutions at p 45 wrote that the power to ratify and confirm grants of land made by substools is vested in the paramount stools and continued that:

“ … though he may not himself grant that which is given, such ratification is not even absolutely essential to make the

[p.909] of [1997-98] 1 GLR 892 transaction valid, though as being evidence of good faith such ratification or confirmation is resorted to and is indeed becoming quite common in modern grants.”

And in Danquah’s book (supra) at p 214 he writes that:

“to obtain an unimpeachable title to stool land in Akim Abuakwa it is necessary first to acquire an option over the land from the Chief of the town or village owning the stool by which such land is mediately held, and then obtain the sanction and approval of the Paramount Chief.”

See also the cases I cited above.

Let me be a bit more relevant by referring to decided cases in relation to the custom and practice in Ashanti. In Ghassoub and Ghassoub v Sasraku [1961] GLR 496, PC a sale of land by the Chempaw stool, a substool under the Kokofu paramount stool was upheld. But it was found that the sale was with the knowledge and consent of the Kokofu stool. In the case of Ayisi v Asibey III [1964] GLR 695 the sale of land by sub-stools was upheld. And a sale of land by the odikro of Asankare (a sub-chief under a paramountcy) without reference to the paramount stool was upheld in Adjowei v Yiadom III [1973] 2 GLR 90 CA.

Indeed, all these customary laws and practices have their legitimacy in the customary law that there is no land belonging to a paramount or head-stool which is not attached to a sub-stool in Ashanti. Thus the Adonten stool as the paramount or sub-paramount stool cannot lay a claim to alienate this land without reference to the sub-stool.

The other point seriously canvassed by counsel for the appellant was that the people of Ahwiaa became strangers to the Adonten stool following their transfer to Atipin. By that act they lost their usufructuary title to the land. Indeed, this argument leaves a vacuum in the land ownership in the sense that if the Awhiaa stool and its people are not owners of the usufructuary title then nobody owns it. But that is contrary to the customary law and practice. At any rate, the judgment did not say so and it creates res judicata. Be that as it may, by customary practice even in the olden days of acquisition of land by conquest, the

[p.910] of [1997-98] 1 GLR 892 usufruct was never lost, the people who inherited a conquered area only paid allegiance to their new overlord but still remained on the land as possessory title owners, that title was not lost, Ollennu in his book (supra) at p 27 put it this way:

“Individuals and individual families may abandon their right in their respective portions, but such abandonment would not affect the title which it has entitled the quarter, the sub-stool and the head stool or head skin to acquire. The title of the quarter or sub-stool or sub-skin once acquired is never lost except upon migration from the area.”

Indeed, this is the true custom and that justifies the 1916 judgment which upheld the Ahwiaa chief’s people’s possessory title to the land even though the court was made aware of the fact that the people had been sold to a new overlord without the land. In short the title they had acquired in the land could not be taken away from them by anybody else.

Let me be a bit more specific, ie on the position of slaves. We have to go into history of slavery a weesic(9) bit. On 17 December 1874, a proclamation was issued by the British Colonial Government forbidding slavery and dealing in slaves, and declaring that all children born after 7 November 1874 were free. As a result, the Emancipation Ordinance, 1874 (No 2 of 1874) was passed and that was applicable to the Gold Coast as a statute of general application. Section 3 of that Ordinance provided that nothing in it shall diminish or derogate “from the right and obligations not being repugnant to the law of England, arising out of the family and tribal relations.” In my view, what this law did was to save any duties, rights and privileges enjoyed by slaves who thenceforth were emancipated, so long as those duties, rights and privileges were not repugnant to English law. And the claim to own the usufructuary title in land was known to English law though not in the form that is practised here. But certainly ownership has been known and practised among the English since civilization there was known.

It is my considered view therefore that at the time the Adonten stool transferred the defendant’s people to the Asantehene who in turn transferred them to the Atipin stool, they were no

[p.911] of [1997-98] 1 GLR 892 longer slaves. And even if they were, by their transfer they were emancipated and by that act, whatever rights and interests they had acquired in the land remained with them.

A relevant case in point is that of Abban v Sago (1883) Sar FCL 156 where Quaye Jones Ag J said: “I find that the land in question is the property of the plaintiff, and that defendant and his ancestors occupied as slaves in the first place, and since the abolition of slavery, on an implied contract of fulfilling the services and bearing the responsibilities which would have devolved on them as slaves. This being so, so long as defendant fulfilled these services and bore these responsibilities, the plaintiff would not have been entitled to recover the land in dispute. But the defendant having refused to continue to perform such services and bear such responsibilities ceases to have any interest in the land, and plaintiff is entitled to recover the same.”

This decision sufficiently sums up the law, both statutory and customary, in relation to emancipated slaves’ occupation of land. Thus, it is my view that the usufructuary or possessory title which the defendant’s people acquired prior to their transfer was not lost so long as they chose to retain the land, and to perform the customary services as ordered by the court.

Counsel’s other argument was that no right was declared in the Ahwiaa stool. I have already explained why this argument is fallacious. Besides that, the Ashanti Confederacy Council decided in 1938 that “All land in Ashanti is the property of the stools of the various chiefs.” This restatement of the custom of Ashanti was considered by this court in the case of Gyabour II v Ababio [1991] 2 GLR 416, CA. The court also considered that individuals enjoy only surface rights but the land itself is vested in the stool. In my conclusion, the land of Ahwiaa was rightly declared to belong to the people of Ahwiaa represented by the Ahwiaa stool. And it is the stool of Ahwiaa therefore which has the right to alienate the land without the prior knowledge or consent or both of the Adonten stool. The appeal should be dismissed for the foregoing reasons. But whilst dismissing the appeal, I will set aside that

[p.912] of [1997-98] 1 GLR 892 portion of the judgment appealed from whereby the trial court asked the parties to come together to agree on what token sum to pay to the plaintiff from proceeds from alienation of land by the defendant. That was not an issue arising out of the pleadings. What portion if any should be paid to the Adonten stool, can be taken up later.

Assuming the plaintiff’s position is right, which is denied, that is, that only a right of occupancy was given to the people of Ahwiaa, yet it does not entitle the plaintiff to alienate those lands on which the village then stood and on which their farms were. For the clear implication by the judgment would be that once they got the land by express or implied grant from the Adonten stool, the principle that a grantor cannot derogate from his grant would apply. And even a tenant in possession can grant away his interest in the land without reference to his overlord so long as the necessary tributes or customary services continue to be performed and in recognition of the grantor’s title. But the position in this case goes beyond a mere right of occupancy, it was a possessory title they had acquired by “long uninterrupted residence”, a sure way for a citizen to acquire the usufructuary title.

I accordingly dismiss the appeal subject only to the variation already spoken of.

JUDGMENT OF ESSILFIE-BONZIEsic(10) JA.

I agree that the appeal must be dismissed. It is noted from the judgment of the Chief Commissioner of Ashanti dated 1916, that the commissioner found that the people of Ahwiaa were not sold together with land on with they were living and working, the cummissioner made the finding: “I find that there is nothing to show that the land passed and that therefore it is actually still part of the Adonten stool land.” He went on to give judgment in favour of the plaintiff’s predecessor in title by declaring the village of Ahwiaa as being on Adonten stool. The commissioner further said in his judgment:

“Therefore the plaintiff succeeds in his action but I find also that defendants’ people by long uninterrupted residence have established their right to occupy the village and the surrounding farm now in their possession without disturbance and without tax or contribution of any sort with the

[p.913] of [1997-98] 1 GLR 892 exception that a portion of any bush meat killed or any wild produce of the soil collected on this land should go to the Adontenhene to mark his ownership.”

A careful examination of “the chief commissioner’s judgment of 1916 reveals that the judgment admitted the possessory and usufructuary title of the defendant and the allodial or paramount ownership of the plaintiff. To mark the ownership of the Adontenhene of the Ahwiaa stool lands, the judgment stipulated, “that a portion of any bush meat killed or any wild product of the soil collected in the land should go to the Adontenhene.” It is not disputed that neither the plaintiff’s predecessor in title nor the defendant’s predecessor in title appealed against the judgment of 1916. This is indicative of the belief they had in the rightness of the judgment. I therefore hold that both parties in the instant case are bound by the judgment.

The instant appeal is in effect an invitation to this court to determine what construction or interpretation is to be placed on the chief commissioner’s judgment (supra). As already shown above, the judgment recognised the possessory title of the people of Ahwiaa and the allodial ownership of the Adonten stool. I hold that by the 1916 judgment the people of Ahwiaa acquired possessory title to the Ahwiaa lands. I further hold that the stipulation made in the judgment that “a portion of any bush meat or any wild product of the soil collected on this land should go to the Adontenhene” was intended to impose an obligation on the people of Ahwiaa to provide annual customary services to their overlord, the Adonten stool. In other words, the judgment of 1916 gave the defendant’s predecessor in title possessory title over the Ahwiaa lands subject to an obligation to provide customary services.

The next question that follows is: as between the paramount or allodial owner and the possessory title owner who has the right of alienation? The established principle of customary law is that the owner of the possessory or usufractuary title can alienate or transfer title in land without the prior consent and concurrence of the paramount owner, so long as the alienation carries with it an obligation to recognise the title of the allodial owner and to perform customary services due to the allodial stool when called upon: see page 57 of Ollennu’s Customary Land Law in Ghana. In Atta Payin v Asani II [1977] 1 GLR 83, CA the Court of Appeal held, as stated in the headnote:

“(1) long possession and occupation of the land by the respondent stool and its subjects, subject to the payment of annual tributes to the appellants as the overlords of the land, conferred a usufructuary title on the respondent and not a mere occupational licence. The respondent stool was therefore entitled to alienate the land to its tenants and strangers without the consent of the overlords subject to the obligation to provide commutable customary services.”

It was also argued by counsel for the plaintiff (the appellant in this appeal) that since it was the people of Ahwiaa who acquired the possessory title after the sale, their master, the Ahwiaa stool, the defendant herein, has no claim to any portion of Ahwiaa lands.

Although this view point is attractive, I do not subscribe to it. It is true that the people of Ahwiaa were sold, but they were allowed to retain the lands which they had acquired. In other words, the people in the village of Ahwiaa continued after the sale to live in the same village and enjoy their acquisitions without interference and interruption. Now since the plaintiff instituted the action against the stool of Ahwiaa, the presupposition is that the latter is the representative of the people of Ahwiaa. The stool of Ahwiaa and the people of Ahwiaa are indivisible. The stool or the chief cannot be separated from the people. I hold that the defendant is the legal and natural representative of the people of Ahwiaa. I further hold that the possessory title or usufructuary title acquired by the people enured to the stool of Ahwiaa. The stool is entitled to alienate the land to its tenants and strangers without any reference to the plaintiff. The only obligation on the defendant is to provide customary services to the plaintiff stool. In the light of the foregoing, reliefs (2), (3) and (4) of the plaintiff’s claim fail. As already declared, the appeal is dismissed.

JUDGMENT LAMPTEY JA.

I agree.

DECISION

Appeal dismissed.

LSNA

Endnotes

1 (Popup – Footnote) sic same in original.

2 (Popup – Footnote) sic same in document. 3 (Popup – Footnote) sic same in original.

4 (Popup – Footnote) sic same in original.

5 (Popup – Footnote) sic same in original.

6 (Popup – Footnote) sic same in original.

7 (Popup – Footnote) sic same in original.

8 (Popup – Footnote) sic same in document. 9 (Popup – Footnote) sic same in original.

10 (Popup – Footnote) sic same in original.