ASHIEMOA v BANI AND ANOTHER

[1959] GLR 130

Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA

Date: 20TH MARCH, 1959.
Before: OLLENNU J.

Trespass—Declaration of Title—Land developing into outskirt land—Restriction on Stool’s right of

interference with subject’s land—Ascertainment of native customary law—Proper order where
defendant has wrongfully built on plaintiff’s land.

HEADNOTES
Ashiemoa’s ancestors had been in possession of certain land for 100 years or so. They had cultivated
it, and had even felled palm trees. Ashiemoa had successfully resisted attempts by the Chief of
Kpandu to interfere with his family’s possession and occupation, and had successfully prosecuted and
defended suits in regard to the land.

[p.131] of [1959] GLR 130

In course of time the land became outskirt land to the nearest town. The Chief asserted that by native
custom this development deprived Ashiemoa of his right to the land, and vested the land in the Stool.
Notwithstanding Ashiemoa’s warnings, the Chief entered on the land, and erected buildings thereon.
Ashiemoa sued in the Native Court for a declaration of title, and for damages in trespass. He
recovered judgment, and on an appeal by the unsuccessful Chief to the Kpandu District Native Appeal
Court that judgment was upheld.
The Chief appealed further to the High Court (Lands Division). (Accra L.A. 177/1959).
Held:
(1) that the Court of first instance was right in rejecting the alleged custom by which a landowner
was divested of his title when his land became outskirt land;
(2) that such a custom would be contrary to natural justice, equity and good conscience
(3) that the trial-Court ought to have granted the plaintiff an order for recovery of possession;
(4) that the Native Appeal Court ought not to have made an order authorising 1st defendant to
continue to occupy the land provided he recognised plaintiff’s title.
Anane v. Mensah (p. 50 of this volume) applied as to proper method of ascertainment of native
customary law. Ohimen v. Agyei and anor. (2 W.A.L.R. 275) applied as to a subject’s right to
maintain an action for declaration of title as against the Stool, and as to the limitations on a Stool’s
rights in dealing with the subject’s land. Tettey v. Tettey (judgment in W.A.C.A. on 11th January,
1949) applied to quash as bad the order of the Court below that the defendant should retain possession
of the plaintiff’s land on which he (defendant) had wrongfully erected a building.

COUNSEL
F.K .Apaloo for the Appellants.
Osei Tutu for the Respondent.

JUDGMENT OF OLLENNU J.
(His lordship dealt with, and dismissed, a preliminary objection to the appeal, and continued:--)
Now the issue which was tried by the Native Court involved: (1) a question of fact, and (2) a question
of law, i.e. native custom.
The plaintiff claimed title to the land on the grounds that it was granted to his ancestor many years
ago, that the latter and his successors up to date had been in undisturbed possession of the land,
exercising full acts of ownership, including the felling of palm trees.

[p.132] of [1959] GLR 130

In support of his case the plaintiff led evidence that, in addition to their possession and occupation, his
family had successfully resisted any attempt made by the co-defendant, the Chief of Kpandu, and
other persons, to interfere with their ownership, possession and occupation of the land. One such
resistance evidenced was that, while the plaintiff was away from home, the co-defendant’s stool
purported to grant a portion of the land to the Evangelical Presbyterian Church, but as soon as the
plaintiff returned home and discovered this, he immediately took steps, and ejected the Church from
the land. The plaintiff also produced evidence of suits he has successfully prosecuted and defended in
respect of the land. These facts, namely possession and occupation of the land, and the exercise of
ownership by the plaintiff’s family up to date, were admitted by the co-defendant and his witnesses.
Further, the felling of palm trees in that part of the country is a right vested solely in the owner of the
land.
The co-defendant’s defence admits that the plaintiff and his ancestors have occupied the land for a
hundred years or more. The defence avers, however, that since the land has now become outskirt land
to the town, by native custom it has ceased to be the property of a subject, individual or family, and
has become absolutely vested in the stool for all purposes, namely, full title - ownership, coupled with
possession and occupation. The only interest left to the plaintiff’s family in the land is the right to
remove growing things, or structures on the land. The second defence witness went farther, and said
that the custom (that the rights of the subject in stool land ceased the moment the town extended to
that land, and it became outskirts land vested in the stool) was created by a bye-law made by the stool.
No such bye-law was produced to the Native trial-Court, and none was produced to the Native Appeal
Court.
Upon the admission of the defendant and his witnesses that the plaintiff and his predecessors have
been in undisturbed possession, and upon the plaintiff’s proof of his occupation of the land, and of his
exercising rights of ownership, the Native trial-Court held on the facts that the plaintiff is the owner of
the land. They rejected the native custom, and the alleged bye-law, relied upon by the co-defendant.
There is no native custom which deprives a subject of his ownership, possession and occupation of
stool land which he has acquired by cultivation. Here I will quote a passage from a judgment
delivered by the Court of Appeal on the 2nd February, 1959 in the case of Anane v. Mensah [See p.
50 of this volume.] Their lordships said:-
“Native customary law is peculiarly within the knowledge of the

[p.133] of [1959] GLR 130

Native Court, and the opinion of a superior Native Courts on native custom must be preferred to the
opinion of an inferior Native Court, unless it is either contrary to a decision of the Supreme Court or of
the Privy Council on the point, or is repugnant to natural justice, equity and good conscience (Section 87
of Cap. 4).”
Learned Counsel has not been able to produce to me any decision of the Supreme Court or of the
Privy Council which is contrary to the decision of the Native trial-Court, confirmed by the Native
Appeal Court, on the question of native custom which arose for determination in this case. In any
event, in my opinion the alleged native custom which the appellant, that is the co-defendant, relies
upon to deprive the plaintiff of his family land would be repugnant to natural justice, equity, and good
conscience. It was rightly rejected by both the Native trail-Court, and the Native Appeal Court, and I
accept the opinion of these two Native Courts on the alleged custom.
In this Court learned Counsel has submitted that the plaintiff failed to prove the gift as he alleged. The
simple answer to that is that the Native trial-Court, as well as the Native Appeal Court, accepted his
evidence of the gift as true, and entered judgment upon it for him.
Learned Counsel further submitted that the claim made by the plaintiff in this case is a claim to stool
land made by a subject adverse to the title of the stool of which he is the subject. Counsel submitted
that a subject is not entitled to make such a claim against the stool. In support of that submission he
cited the case of Ohimen v. Agyei & anor. (2 W.A.L.R. 275). With due respect to learned Counsel, I
must point out that one of the important points decided in the case cited is that a subject can
successfully maintain an action for the declaration, as against the stool, of the subject’s usufructuary
title to stool land. The case decided further that the stool has no right, without the prior consent and
concurrence of the subject, to alienate or otherwise deal with land over which that subject enjoys, or
has acquired, a usufructuary title.
The cause of action in this suit, as stated by the plaintiff, is the recent persistent attempts of the stool
to interfere with his ownership, possession and occupation of the land, the latest such act of
interference being the purported sale of a portion of the land to the 1st defendant. The plaintiff said
that he called upon the 1st defendant to recognise him as the owner, but upon the instigation of the
stool the defendant refused so to acknowledge the plaintiff, but rather persisted, in spite of all
warnings, to continue in adverse occupation

[p.134] of [1959] GLR 130

of the land, and to erect more buildings thereon. The cause of action in the present suit, therefore, is
similar to that in the case of Ohimen v. Agyei. There the stool, without reference to a subject family
who had acquired possessory title to an area of the stool land, purported to lease a portion of that land
to a stranger for the erection of a cinema. The family thereupon sued the stool for declaration of their
title and for an injunction, and they succeeded against the stool. The case of Ohimen v. Agyei is
against the appellant.
In my opinion, therefore, the Native trial-Court was right in holding that the plaintiff is entitled to the
declaration he seeks. The only error in its judgment was the omission to grant the order for recovery
of possession which the plaintiff claimed; that omission must be supplied. I am also of the opinion
that the Native Appeal Court was quite justified in upholding the judgment of the native trial-Court.
But it, too, erred in its final order, directing that the first defendant, who had wrongly entered upon
the plaintiff’s land and in spite of all warnings had erected a building thereon, should continue to
occupy that land, on the condition that he recognised the title of the plaintiff. In the case of Tettey v.
Tettey, which is similar to this case, the West African Court of Appeal, in their judgment delivered on
the 11th January, 1949 held that an order by the Land Court that a defendant who had erected a
building on a plaintiff’s land should retain possession of the land, was wrong.
For the reasons stated above I dismiss the appeal, but I amend the judgment of the native trial-Court
by including in it an order for recovery of possession. I also amend the judgment of the Native Appeal
Court by deleting therefrom the order that the first defendant should retain possession of the land.

DECISION
Subject to the amendment of the judgments as indicated above, the appeal is dismissed with cost fixed
at £16 12s. 6d. including 10 guineas for Counsel.