November 28, 1958.

OBLEE v. ARMAH AND AFFIPONG (1958) 3 WALR 484 (High Court, Eastern Judicial Division,
Divisional Court Ollennu J

Evidence-Hearsay-Traditional evidence-Evidence not admissible as being traditional if direct evidence

Land-Stool land-Native law and custom-Manner in which a stool-subject can take possession of and
acquire an interest in stool land-Special position of outskirt la.nd ..

Land-Stool land-Native law and custom-Rights of subject over land held by him of his stool-Whether any
restriction in user of land acquired for farming purposes.

Land-Possessory title-Position of occupant of land compulsorily acquired under Accra Town (Lands)
Ordinance, c. 87 of 1951.

In this action for a declaration of title, to land, the parties were subject-members of the same stool. The
plaintiff claimed, and led evidence to show, that a grant of some land had been made to him by the
stool authorities some forty years before the action, and this evidence was not seriously challenged by
the defendants. There was also evidence that the plaintiff had exercised acts of possession over the land
in dispute, by way of farming it and building upon it, for many years. The defendants sought to set up
grants made in their favour subsequent in time to the grant to the plaintiff: they also alleged, in effect,
that it is a customary incident of a grant of land made by a stool to a subject that the land so granted
may be used for farming purposes only and that by building on the land in dispute the plaintiff had
suffered forfeiture, the land reverting to the stool-grantor.

The plaintiff did not give evidence in person: his principal witness was his son who not only gave
evidence from his own direct knowledge of the facts but also attempted to give hearsay evidence on
matters on which the plaintiff could have given direct evidence.

The land in dispute, which was Accra outskirt land, was part of an area which had at one time been
compulsorily acquired under the Accra Town (Lands) Ordinance of 1951 and had subsequently been
released. The grant to the plaintiff had been prior in time to the compulsory acquisition: the grants to
the defendants had been made subsequent to the compulsory acquisition but prior to the release.

Held, (i) the hearsay evidence of the plaintiff's son could not be admitted as being traditional evidence
while direct evidence of the same facts could have been adduced.

[EDITORIAL NOTE. The exact scope of the rule that permits the admission of traditional evidence as an
exception to the hearsay rule has yet to be defined. Possibly it is no wider than the accepted exception
which allows evidence of general reputation.]

(ii) A stool-subject, requiring stool land for his use and occupation, does not, generally speaking, require
express permission from his stool to occupy vacant stool land. Demarcation by the stool of an area of
land required by a stool-subject may however be necessary, where other land in the vicinity is already in
occupation, in order that the boundaries of the respective occupiers shall be satisfactorily defined.
(iii) The rights exercised by a stool-subject over land in his occupation are not limited by the purpose for
which he has acquired the land or for which it was demarcated in his favour. Thus where a stool-subject
occupies or is granted land for farming purposes he is not thereafter restricted to farming in his use of
the land.

(iv) The general rule that a stool-subject does not require the consent of his stool, when seeking to
occupy vacant stool land, gives way where the land is outskirt land of an urban area and is ripe for
development. In order to ensure that such land is properly administered in the interests of all the
subjects of the stool a stool- subject may only take possession of such land upon express grant by the
stool. The incidents attaching to land so granted do not, however, differ from those attaching to land
taken into possession where consent of the stool is not required.

(v) A grant by a stool of stool land in the possession of a stool-subject witnout the consent and
concurrence of such subject is a nullity.

(vi) Although the land concerned had been compulsorily acquired by statutory authority, thereby vesting
in the government, which had not, at the time of commencement of the suit, divested itself of the land,
the plaintiff, who was in possession and who had never claimed compensation for the land, was entitled
to maintain his action against all save the government.

Danquah v. Wuta Ofei and Bonne (1956) 2 W.A.L.R. 185 followed.

The West African Law Reports

Cases referred to :
(1) Asher v. Whitlock (1865) L.R. 1 Q.B. 1. (2) Sandar v. Parbati (1889) 5 T.L.R. 683. (3) Danquah v. Wuta-
Ofei and Bonne (1956) 2 \V.A.L.R. 185.

ACTION for a declaration of title to, damages for trespass to, and an injunction in respect of an area of
stool land claimed to be occupied by the plaintiff as a stoo~ subject.

Moore fur the plaintiff. Amoo-Lamptey for the defendant. Heward-Mills for the co-defendant .

OLLENNU J. The plaintiff claims a declaration of title, damages for trespass, and an injunction in respect
of a piece of land situate at Korle Gonno, James Town, Accra. By an order of the court made on
November 23, 1956, upon an application of the plaintiff, the codefendant was joined as a party to the
suit. All the three parties to the suit are subjects of the James Town Stool, and it is common ground
between them that the land in dispute is a

portion of the James Town Stool lands. Each of the parties bases his or her title to the area he or she
claims upon a grant from the stool.

In paragraph 2 of his reply to the defendant's statement of defence, the plaintiff pleaded that the land
was granted to him in or about 1939 for" building and dwelling purposes" by Nii Okpe, Dsasetse and
Acting Mantse, and other accredited elders of the stool, and that the said grantors gave him a certificate
on it. He pleaded in paragraph 3 of his reply that he gave this certificate to Nii Kofi Akrashie II, then
James Town Mantse, who wrongfully detained it and has refused to return it to him.
The defendant pleaded in paragraphs 2 and 3 of his statement of defence as follows:

" (2) These lands (i.e., James Town lands) are not sold to subjects of the stool but are granted to the
subjects of the stool to build thereon upon payment of customary drink to the occupant of the stool and
his elders .

• , (3) Further the subject of the stool can make cassava, corn or ground-nuts farms thereon without
permission from the stool as such."

In paragraph 5 of his statement of defence he admitted committing the acts which the plaintiff alleged
constitute the trespass; whilst in paragraph 6 thereof he admitted that the plaintiff was in possession of
the land on the date he (the defendant) placed the sand and stone on the land; but he pleaded in
paragraph 4 that his entry upon the land was in exercise of his right as Owner thereof by reason of a
deed of gift in respect of the land and executed in his favour on October 28, 1954, by Nii Rofi Akrashie II.

In paragraph 1 of her statement of defence the co-defendant accepted and agreed with the averments
in paragraphs 2 and 3 of the defendant's statement of defence set out above. She pleaded in paragraph
2 of her statement of defence that the land she claims was granted to her in accordance with native
custom in 1944 by Nii Ahuma Rojo II; that the said Mantse thereupon gave her a certificate on the grant.
She pleaded in paragraph 3 that Nii Rofi Akrashie II, successor to Nii Ahuma Rojo II, by a deed of gift
dated December 24, 1955, confirmed the grant according to custom which Nii Ahuma Rojo II had made
to her.

As will appear later on, each of the parties, particularly the plaintiff and the co-defendant, led evidence
on his or her behalf which in some material respects is different from the original grant he or she had
pleaded.

The plaintiff himself did not appear at the trial, but evidence was given on his behalf by his son, who said
that his father was old and ill and could not attend court.

Hearing of the case commenced before van Lare J., as he then was, in 1956, but was not concluded
when the learned judge was raised to the Appeal Court and ceased to exercise original jurisdiction.
Hearing therefore was commenced de novo before me. On January 24, 1956, when the case was before
the aforesaid learned judge, two documents were admitted in evidence by consent, namely, a plan of
the area in dispute, tendered on behalf of the plaintiff, and a deed of gift dated October 28, 1954, with
site plan attached thereto, tendered on behalf of the defendant.

From the records of the court those documents were taken possession of by one Mr. Sackey, then court
exhibits clerk, who for certain reasons is no longer in the service of the courts. All efforts to trace these
exhibits have failed. The court was therefore obliged to admit some oral evidence of the contents of the
defendant's documents, even though nothing in this case turns upon the contents of these documents.
As regards the plan, another plan made upon order of the court was admitted in evidence. On that plan
the respective areas claimed by the parties are distinctly delineated.

The evidence led on behalf of the plaintiff is that the area of land he claims, 200' x 200', was originally
granted to the plaintiff some 45 years ago by the late Nii Rojo Ababio II, then James Town Mantse; that
the grant was made to him for building and occupation; and that the said Mantse gave the plaintiff a
certificate evidencing the grant. That soon after the earthquake of 1939 the plaintiff handed this
instrument to Nii Okpe, Dsasetse, then acting Mantse of James Town; that the said Acting Mantse and
his elders lost the certificate, and therefore issued

another to the plaintiff, which document, the witness said, was subsequently seized by Nii Kofi Akrashie
II. The witness said that his father was placed in possession upon the grant and has been in occupation
ever since, and has been farming it; he planted coconut, palm and mango trees on the land, some of
which trees are still in existence.

The evidence that Nii Kojo Ababio II and his elders granted land in the area to the plaintiff over 40 years
ago, was admitted by the defendant. The defendant, however, contended in his evidence that the grant
the stool made to the plaintiff was for farming purposes only, and that it covered two building plots,
that is the northern half of the land he now claims, and not the whole of that land.

The case for the defendant is that at the same time that the grant of the northern half of the land was
made to the plaintiff the said Nii Kojo Ababio II granted the southern half to one Ataa Kwaku, that half
being the portion now claimed by the defendant together with the plot on which stands the unfinished
building commenced by one Appiah the second witness for the plaintiff. The defendant said that some
time round about 1940 Nii Ahuma Kojo II, then in confinement to be enstooled, granted to him the
portion he the defendant cl~ims. He says further that one Ataa Kwami farmed that portion when Ataa
Kwaku became too old to farm it and that the said Ataa Kwami told him that three of the old coconut
trees standing on the land he now claims were planted by the said Ataa Kwaku.

The co-defendant did not either in her pleading or in her evidence admit that the plaintiff received any
grant of land from the stool, or that he ever occupied any land in the area. Her witness Kofi Sackey, who
was an old man and an elder of the James Town Dsase, said he knows about and takes part in all grants
of stool lands at Karle Gonno to subjects of the stool, and was emphatic that no land at Karle Gonno was
ever granted to the plaintiff by Nii Okpe. At the same time the co-defendant did not either in cross-
examination of the plaintiff's witness, or in the evidence led on her behalf dispute the evidence that Nii
Kojo Ababio II granted land to the plaintiff.

In these circumstances I am bound to accept the positive evidence given both on behalf of the plaintiff
and by the defendant that the James Town Stool, acting by Nii Kojo Ababio II and his elders, granted
land in the area to the plaintiff about 40 years ago.

This preliminary issue having been resolved, the only others which call for determination upon the
evidence are

(1) the extent of land which the stool granted to the plaintiff; and, (2) the nature of the interest which
the plaintiff acquired in the land upon that grant.

The first of these is a question of fact, the second is mixed law and fact.

Before dealing with those issues I shall state fully the case for the co-defendant. It is that the portion of
the land which she claims was sold to her some time ago, during the reign of Nii Ahuma Rojo II, by a
relation of hers, one Prince Rofi Akrashie, to whom Nii Raja Ababio II and his elders, including the third
witness for the defence Nii Sackey, had originally granted the said land. She said that Prince Rofi
Akrashie gave her a deed of conveyance of the land which later she took to show to Nii Ahuma Rojo II
for the purpose of verifying Prince Rofi Akrashie's title. She said that some time ago, at the request of Nii
Ahuma Rojo II, she handed the deed of conveyance to him to be used as evidence in a land acquisition
matter. She further said that some time ago she sent a mason to do some work on the land but that the
plaintiff prevented him. Later she sent some people to deposit sand on it, but the plaintiff would not let
them enter. She then reported the matter to Nii Kofi Akrashie II, the Mantse of James Town at the time.
Nii Akrashie II sent for the plaintiff and seized from him a document which the plaintiff produced to the
Mantse at the Mantse's request; the ground of the seizure alleged by the Mantse being that the
document was not a genuine one. She said that on December 24, 1955, i.e., while this suit was pending,
the said Mantse Nii Kofi Akrashie II, gave her a deed of gift of the land.

I shall now deal with the two issues raised in turn. The plaintiff's witness admitted under cross-
examination by learned counsel for the co-defendant that he had no personal knowledge of the grant
which the stool made to his father 45 years ago; I cannot therefore accept his evidence of that grant as
traditional evidence since his father is alive. The witness said, however, that in 1939 he saw the written
instrument which Nii Rojo Ababio II gave his father upon the grant. Furthermore, he said that his father
has occupied the whole area claimed in the writ for a long time, that he and his father planted coconut,
palm, and mango trees over the whole of that area, and that

some of those trees are still in existence on the land. As already indicated, the defendant admitted in
paragraph 6 of his statement of defence that, at the time the land he now claims was granted to him by
Nii Aruma Rojo II the plaintiff was in occupation of that portion and was farming it.

The plan of the land shows seven coconut trees and one palm tree on the area the defendant claims,
and which is hatched purple. I saw those trees myself when the court inspected the land. Six of the
coconut trees and the palm tree are quite old, about thirty-five years old as estimated by the surveyor.
The defendant says he was told by one Ataa Kwami that three of the old coconut trees on that portion
of the land were planted by one Ataa Rwaku. He gave no account as to who planted the remaining three
old coconut trees, the old palm tree and the younger coconut tree.

Again, when I inspected the land I saw hedges planted along the whole length of the eastern, northern
and western boundaries of the land claimed by the plaintiff, which are edged pink on the plan. The
evidence which the plaintiff's witness gave subsequently that those hedges were planted by him and his
father was not disputed. The only point made about those hedges by the defence was the suggestion,
made in cross- examination by learned counsel for the co-defendant, that the plaintiff and his son
planted those hedges some time between the years 1939 and 1957, during which period the
government had acquired the area. There is the further evidence given by the witness Appiah that when
he went upon the land some time in 1953 and started building operations thereon the plaintiff
straightway warned him that the land was his. This evidence and the admission on the pleadings fully
corroborate the evidence led on behalf of the plaintiff that he has been for a long time in possession of
the whole area he now claims and has been exercising acts of ownership over it.

On the other hand no admissible evidence was led by the defendant to refute the evidence led for the
plaintiff on this issue. The evidence in chief of the co-defendant shows that the only .two attempts she
made to exercise acts of ownership over this land were resisted by the plaintiff. He stopped her mason
from doing any work on the land, and would not let her labourers deposit her sand on .the land. These
acts of the plaintiff are assertions of his title to and possession of the area claimed by the co-defendant,
which is shown edged yellow on the plan. There are as many as ten coconut trees, one palm tree and
one mango tree on that portion of the land, each of them quite old .. The only evidence led as to how
those trees came into existence is the evidence led on behalf of the plaintiff that they were planted by
him and his son.

With due respect to the blind old lady, the fourth defence witness, I must say that I cannot place any
reliance upon her evidence that the area claimed by the co-defendant was granted to her cousin, one
Kofi Akrashie, and that the said Kofi Akrashie farmed it until he sold it to the co-defendant. The reasons
for rejecting her evidence are many, I shall only state a few of them. She alleged that her husband, the
third defence witness, was one of the elders of the stool who went and demarcated the land to the said
Kofi Akrashie, and that her knowledge as to occupation of the land by Rofi Akrashie was acquired by
seeing Kofi Akrashie farming on it when she and her said husband together passed near the land to and
from their own farm. In those circumstances the best person to know that land had been granted to Kofi
Akrashie, and the area of that land granted to Kofi Akrashie, is the husband. It is significant that not a
word was breathed by him in his evidence about a grant of this land to Kofi Akrashie.

Again while the evidence shows that the plaintiff has been occupying land in the area for a long time,
she, the blind lady who professes to know the area quite well, says she has never heard of the plaintiff
occupying land anywhere near the alleged Kofi Akrashie's land. Finally, whilst the co-defendant says that
the said Kofi Akrashie was her relative, and that it was after he had sold the'land to her, under a deed of
conveyance, that she went and showed the deed to Nii Aruma Kojo II, the witness says that the said Kofi
Akrashie was not in any way related to ,the co-defendant, and that the sale and conveyance of the land
by him to the co-defendant were transacted in the presence of Nii Ahuma Kojo II at the Mantse We. It
seems to me that .this witness must be talking about quite a different piece of land and not the one in
dispute between the plaintiff and the co-defendant.

The next important witness is Appiah, who has an unfinished building on a portion of the land.
According to his evidence the plaintiff raised objection as soon as he entered upon that portion of the
landwhich he said happened in 1953. There is no evidence of his previous entry upon that land. That
objection means that the plaintiff was asserting his title to that portion of the land. When he was
recalled after the court's inspection of the land he said that the two coconut trees and the mango tree
on the land were planted by him. This witness produced a

certificate upon which he relies for his title to the land. This document has certain features which are
too glaring to escape observation. First, it contains no description of the boundaries of the land in
respect of which it was issued. Secondly, the person whose name and mark appears on it as first elder of
the stool to witness it is Kofi Sackey. He was a witness for the defence but even in his evidence-in-chief
he said he only heard that a grant of land had been made to Appiah; that he did not know anything
about that grant; and, that he did not know about any paper given to Appiah on the grant. Lastly, the
figures on the certificate showing the dimensions of the land appear to have been altered from 60' x 60'
to 100' x 80'. 'l'he alteration is very obvious. I gave the witness an opportunity to explain how the
alterations came about. To my surprise he said there are no alterations on the document. I formed the
opinion that he found himself in difficulties upon realising that the court had noticed the alteration, and
as he could not offer satisfactory explanation he decided to deny that which is obvious.

I am not satisfied that Appiah's certificate relates to the land on which he commenced his building, and I
am not satisfied either that land measuring 100' x 80' was ever granted to Appiah by Nii Okpe. On the
other hand I am satisfied that the first time that Appiah went to that portion of the land was in 1953,
and that when he did so enter the plaintiff did not keep quiet-he registered his protest. Appiah says that
the plaintiff offered to accept some drink in order that he, Appiah, might proceed with his building but
he rejected that offer; that is his own affair.

On the whole I am satisfied that the area of land granted by Nii Kojo Ababio II to the plaintiff is the
whole of the area he now claims, i.e., the area edged pink on the plan; that the plaintiff was placed in
possession of the whole of that area; and that he has remained in possession of it ever since.

And now what interest did the plaintiff get in the land upon its grant to him? The defendant admitted
that when the land was granted to the plaintiff it was demarcated to him by the elders of the stool. That
admission implies a great deal.

By custom, subjects of a stool are not rationed in the amount of land they can occupy and farm. The
only limiting factors on the extent of stool land a subject can acquire by farming are his own capacity to
farm and the extent of land which other subjects have appropriated to their use by their labour.

Again by custom a subject who requires land for farming need not obtain express permission of the
stool to occupy vacant stool land. That fact is admitted by both the defendant and co-defendant in their
pleadings. Bu~ if to avoid a clash with other subjects already occupying land in the area it should
become necessary for the stool to make an express grant of stool land to a subject for farming, all that
the elders would do is to take this subject to the land and show him the boundary from which and the
direction in which he can farm.

It is different in the case of lands adjoining the town which are ready for development for the extension
of the town; .the suburban area which in Christiansborg and other Ga towns are called outskirt lands. In
the case of such lands express permission of the stool is always required, and limits are set to the extent
of land which one subject may occupy, in order to maintain proper administration of the land, and
ensure that each subject who requires land to build gets his fair share. It is in the case of such grants
that the area granted to the subject is demarcated. Demarcation therefore is evidence that a grant is not
solely for farming but for occupation and building purposes.

The evidence that the plaintiff has built on a portion of the land and has been farming on the other
portions is also evidence that the grant was for the purpose of occupation and building, and not solely
for farming.

Even if the grant was only for farming, the subject who so farms the lands becomes the owner of the
usufruct in the land. That interest in the land carries with it the right to build and occupy. The stool is
not entitled to dispose of or deal with that land or any interest in such land in the subject's possession
without the consent and concurrence of the subject usufructuary owner.

Therefore whether the grant of the land to him was express or implied, the plaintiff, by occupying and
farming the land, became the owner of it according to custom, and every grant which the stool purports
to make of any portions of it to the defendant or to the codefendant or to anyone else, without the
prior consent and concurrence of the plaintiff, who holds the usufructuary title in it, is null and void.

One point more. There is some evidence that after the earthquake in 1939 the Government acquired
the land in dispute for purposes of rehousing, and it did not divest itself of the land until last year, 1957.
It was suggested to the plaintiff's witness by learned counsel for the co-defendant that, by reason of
that fact, the plaintiff had no title in the land in respect of which h~ could sue. That suggestion, of
course, is a question of law, upon which I had hoped that learned counsel would address the court. But
neither counsel for the defendant nor for the co-defendant thought fit so to address the court.
However, it being a point of law and it having been referred to in the proceedings, it is the duty of the
court to address its attention to it. Having done so I find two complete answers to it.

First, the plaintiff, having been proved to be in possession, has a title good against the whole world
except the true owner, i.e., the government. See Asher v. Whitlock (1), and Sandar v. Parbati (2).

Secondly, the acquisition operated to divest of his interest any person, apart from the stool, who held
any interest in the stool land at the date of the acquisition. Therefore upon the government
subsequently divesting itself of the title it got by the acquisition, any person with an interest in the land
at the date of the acquisition, who had not claimed and obtained compensation, was restored to his
status as it' existed at the date of the acquisition, whilst all dealings with the land by the stool during the
period that the land remained acquired would be null and void.

Therefore the alleged grants made by the stool between the date of the acquisition (1939) and the date
of divestment (1957), i.e., the grants

to the defendant, the co-defendant and Appiah, were null and void, whilst upon the divestment, the
plaintiff, who had an interest in the land at the date of the acquisition and who had not claimed and
obtained compensation, was restored to his former status, and he can properly maintain this action
even though he instituted the suit prior to the date of the divestment. On this legal point, this case is on
all fours with the case of Danquah v. Wuta Ofei and Bonne (3).

The plaintiff has succeeded in proving his case satisfactorily and is entitled to judgment on his claim.
There will be judgment for the plaintiff against the defendant and the co-defendant for a declaration of
his title to the land.

OLLENNU J.

Judgment for the plaintiff·

S. G. D.