Ohimen v.

Adjei and Another

2 WALR 275, 1957
Supreme Court of Ghana, Central Judicial Division,
Land Court, Cape Coast (Ollennu J.)
March 14, 1957
[277]

Cases referred to :
(1) Kuma v. Kuma (1936) 5 W.A.C. 4.
(2) Fiscian v. Nelson and Baksmaty (1946) 12 W.A.C.A. 21.
(3) Abbey and Another v. Ollenu (1954) 14 W.A.C.A. 567.
(4) Lokko v. Konklofi (1908) Renner, Vol. 1, Pt. 2, 454.
(5) Golightly and Another v. Ashrifi and Others (1955) 14 W.A.C.A. 676.

Appeal from a decision of the Swedru Native Court “B” on September

4, 1956, giving judgment for the defendant stool in an action by a plaintiff,
on behalf of his family, against the stool to which the family belonged, for a
declaration of title to land, an injunction and damages for trespass.
[278] Ollennu J. The plaintiff in this case, suing as head of the Nana
Danquah branch of the Asona family of Agona Swedru, sued the first and second
defendants respectively as head of the Asona Stool Family and as occupant of
the Asona Stool of Agona Swedru. The claim is for a declaration of title, an
injunction and damages for trespass. There was no counterclaim.
In their judgment delivered on September 4, 1958, the Native Court made
certain specific findings of fact; they also held it to be established law and
custom that undisturbed possession of land for fifteen years would have vested
ownership of the land in the person in such possession. They dismissed the
plaintiff’s claim. The findings of fact made by the court are: that the land in
dispute is the property of the Asona Stool, which is occupied by the second
defendant; that the plaintiff’s family are members of the stool family and have
usufructuary rights over the said land, but are not owners in fee simple; that
the dispute is res judicata by reason of certain judgments of the Agona State
Council, given in a stool dispute; and that the plaintiff has slept on his rights
(inf any). The Native court thereupon made an order for an injunction against
the plaintiff.
Four grounds of appeal were filed originally and two additional ones were
filed subsequently.
The are as follows:

1. Because the Native Court misdirected itself as to the law in holding that
the judgments of the Agona State council operated as res judicata, these
judgments are being res inter alios acta.

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 2. Because the native court was wrong in holding that the plaintiffs’ family
enjoyed only usufructuary rights as members of the same family as the
defendants.
3. Because the judgment of the Native Court was against the weight of the
evidence.
4. Because the Native Court was wrong in holding as it did that the defen-
dants had been in undisturbed possession for upwards of fifteen years.
The grounds subsequently added were that the Native trial Court misdi-
rected itself by holding that “the plaintiff acted ultra vires since he has no
locus standi,” and that the trial Native Court was wrong in law in making the
following order:
“Order for injunction entered herein restraining the plaintiff, his
servants, labourers, workmen or privies from interfering with the
Anarfo land.”
Mr. Dua Sekyi, counsel for the defendants, conceded that the order for in-
junction made in favor of the defendants is wrong since they [279] did not file
any counterclaim, and that the judgments and orders of the Agona State coun-
cil, delivered in matters of constitutional nature, cannot operate as res judicata
in a land suit. He could not therefore resist the attacks upon the judgment
made in the original grounds and in the additional grounds against these two
points.
The Native court’s statement of law and custom that undisturbed occupation
of land for fifteen years vested the person in such possession with title to the
land is of course a misdirection. There is no prescriptive right in this country;
undisturbed possession of land by a stranger for however long a time cannot
ripen into ownership. See the case of Kuma v. Kuma (1). It may, however, work
the other way and operate as an estoppel against an owner who has been guilty of
laches amounting to fraud. where the true owner sits by and allows a stranger to
occupy his land, spend money or energy in improving it in the honest belief that
it belongs to him, equity will not permit the true owner afterwards to recover
possession of the land. See the cases of Fiscian v. Nelson and Baksmaty— (2),
and Abbey and Another v. Ollenu (3). The correct position is that the true
owner loses his right to assert his title and to recover possession of the land;
not that the stranger acquires title to it, though in actual fact he does thereby
acquire title to the land.
There is evidence on the record which amply supports both findings of the
Native court that title – call it fee simple title – in the land is vested in the stool
of the second defendant, and also that the plaintiff’s family, as subjects of the
stool, have acquired usufructuary rights over the said land. Those two findings
together raise some very important principles of native custom regarding the
nature of the title or interest which a subject acquires in stool land.
There are four principal methods by which a stool acquires land. They are:
conquest and subsequent settlement thereon and cultivation by subjects of the

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stool; discovery, by hunters or pioneers of the stool, of unoccupied land and
subsequent settlement thereon and use thereof by the stool and its subjects;
gift to the stool; purchase by the stool. Each of these methods involves either
the sacrifice of lives of subjects or the expenditure of energy or contribution
of money by subjects, and use and occupation of the land by the subjects.
The stool holds the absolute title in the land as trustee for and on behalf of
its subjects, and the subjects are entitled to the beneficial interest or usufruct
thereof and have to serve the stool. Each individual or family is regarded in the
broad sense as the owner of so much of the land as it is able by its industry or by
the industry of its ancestors to reduce into possession and control. The area of
land so reduced into the lawful possession of the individual or family, and over
which he or they exercise a usufructuary right, is usually called his property. It
cannot, save with the express consent of the family or individual, be disposed
of by the stool. the individual or family may assign or dispose of his [280]
interest in the land to another subject of the stool and the land may be sold
in execution of a decree against the individual, or the family, as the case may
be, without the consent of the stool. But he may not dispose the the stool’s
absolute ownership in int to strangers without the consent and concurrence of
the stool.
Where an individual or family in possession abandons any portion of the land
in their possession for upwards of ten years, the stool can grant that particular
portion to any other subject or to a stranger and such grantee will be bound to
perform such services ans pay such sums as may be declared to be performed
or paid annually in accordance with native custom. see Lokko v. Konklofi (4),
Golightly and Another v. Ashrifi and Others (5), and see also Sarba, Fanti
Customary Law, 2nd ed., pp. 66-67.
It would be repugnant to natural justice and good conscience if, while the
Stool can insist upon the services and customary rights due to it from the
subject, it could arbitrarily deprive its subjects of the enjoyment of the portions
of the stool land in their possession. On the other hand, the only title in land
which a subject can claim against a stool is the usufructuary title to the portion
of the stool land in his actual possession. If he proves that, he is entitled to a
declaration of his title to that land.
It has been argued on behalf of the defendants that the defendants have fro
many years made grants of portions of the Anarfo lands, as evidenced by the
documents tendered in the case, without objection form the plaintiff’s family;
the earliest of these transactions was in 1919. But there was no evidence that
the plaintiff’s family were in actual possession of the particular portions of the
land so dealt with by the stool at the time when the stool made the grants
of them. The presumption is that the plaintiff’s’ family had not bee in active
possession of those specific portions for a number of years and therefore that the
family must be deemed to have abandoned them. In such a case native custom,
as I have stated above, empowers the stool to grant the land to others, nd such
grants cannot be regarded as inconsistent with the family’s rights in and over
the portions of the land in their active possession and control.
The point has also been made that members of the plaintiff’s family have

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received compensation from the second defendant’s stool for the demolition of
the houses they occupy on the family land. It was urged that such acceptance
of compensation evidences their consent and concurrence in the disposition of
the land by the stool. had the people who accepted the compensation been
proved to be the head and principal members of the family I would have no
hesitation in accepting the argument, or at least in holding that the acquiesced
in the grant by the stool, even though their acceptance of compensation took
place after the execution of the lease by the defendants. By native custom it
is only the head, acting with the necessary consent, who can bind [281] the
family. It would be chaotic if any member could compromise the portion [sic] 1
of the family by any act which, while benefiting him personally, was detrimental
to the interest of the family as a whole.
It is clear from the evidence on behalf of the defence that the defendants and
their witnesses are aware of the rights of the plaintiff’s family in the land; but the
defendants are insisting on ousting the plaintiff’s family from the land because,
as stated by the defendants’ first witness in his evidence–in–chief, the second
defendant, after consultation with his elders, refused to allow the plaintiffs’
family to continue in possession “ assigning reason that the plaintiff had been
at loggerheads with him since the stool litigation.” Such a vindictive attitude on
the part of the occupants of the stool and his elders towards subjects or members
of the stool family is unfortunate. Where, as in this case, land is required for
development which will be beneficial to the stool and the community generally,
co–operation between the stool and the family to be dispossessed is the best
method of approach, not high–handed action.
As stated above, the only title which a subject has in stool land and for
which he can maintain an action against the stool is the possessory title or
the usufruct of the land. The native court found upon the evidence that the
plaintiff’s family has such a title in the land. Consequently they should upon
their own findings have entered judgment for the plaintiff. they therefore erred
in dismissing his claim.
For the reasons stated I allow this appeal, set aside the judgment of the Na-
tive Court, including the orders for costs and injunction, and substitute therefore
judgment for the plaintiff for a declaration of his ownership according to native
custom of the land in dispute, and a declaration that the lease of the said piece
or parcel of land by the defendants without the consent and concurrence of the
plaintiff is ineffective as against the plaintiff’s family. I am unable to grant
the plaintiff the order for perpetual injunction sought, since it appears from
the Native Courts (Colony) Ordinance and Regulations made thereunder that
a Native court has no jurisdiction to grant the equitable relief of injunction,
other than an interim injunction. As an appeal court I an only grant a relief
which the court of first instance is capable of granting. As to the claim for dam-
ages, no doubt there has been some interference with the plaintiff’s possession
of the family land such as should entitle him to damages. But in the particular
1 Here the word “portion” is crossed out, and “position” entered in, in the original from
which this was copied.

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circumstances of this case it will be discreet not to award any damages.
The plaintiff is to have his costs of this appeal and his costs in the Native
Court to be taxed.

Appeal allowed.
S.G.D.