ASHIEMOA vs. BANI AND ANOTHER [1959]DLHC1991

Date	1959-03-20
Suit No.	-
Citation No.	[1959]DLHC1991

OLLENNU J.

F.K .APALOO FOR THE APPELLANTS.

OSEI TUTU FOR THE RESPONDENT.

[1959]DLHC1991
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ASHIEMOA <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">BANI AND ANOTHER<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 130<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20TH MARCH, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

F.K
.APALOO FOR THE APPELLANTS.<o:p></o:p>

OSEI TUTU
FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>(His
lordship dealt with, and dismissed, a preliminary objection to the appeal, and
continued:--)<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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:-<o:p></o:p>