ASUON vs. FAYA [1961]DLHC1982

Date	1961-06-21
Suit No.
Citation No.	[1961]DLHC1982

SOWAH J

K. OFOSU-ASANTE FOR SAMPSON BAIDOO FOR THE PLAINTIFF

I.K. ABBAN FOR R.J. HAYFRON-BENJAMIN FOR THE DEFENDANT

[1961]DLHC1982
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ASUON

[HIGH COURT, CAPE COAST]

[1963] 2 GLR 77

DATE: 21ST JUNE, 1963.

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COUNSEL:&nbsp;&nbsp;

K.
OFOSU-ASANTE FOR SAMPSON BAIDOO FOR THE PLAINTIFF.

I.K.
ABBAN FOR R.J. HAYFRON-BENJAMIN FOR THE DEFENDANT.

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SOWAH J.

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&nbsp;

This action is one of many actions now pending before this court,
sparked off by the enactment of the Administration of Lands Act, 19621 and the
Rents (Stabilization) Act, 19622 as amended by the Rents (Stabilization)
(Amendment) Act, 1963.3

The plaintiff claims that the defendant is a person entrusted with
the management of an old cocoa farm situate and lying at a place called Kwaim.
The defendant denies that he is a manager of any farm belonging to the
plaintiff and claims that the land occupied by him was a grant to his immediate
predecessor on a customary tenancy basis known as abusa tenancy and further
that his landlord is the occupant of the stool of Nkuntanasi, who is also the
head of the Anona clan sometimes referred to as the Anona family. He further
claims the subject-matter of the dispute as stool property within the meaning
of the Administration of Lands Act, 1962.

I will say at once that there is no evidence before me that either
the defendant or his predecessor was made manager of the farm in dispute as pleaded
in his statement of claim. The evidence of both the plaintiff and Kojo Nsiah
shows that the land was given to Kobina Obo to make a cocoa farm thereon though
they also state that there were cocoa trees on the land before it was given to
Obo. The defendant, of course, maintains that the cocoa on the land was made by
his predecessor Kobina Obo. I shall later deal with this aspect of the matter.
I am however satisfied that the defendant or his predecessor was not at any
time entrusted with the management of the cocoa farm in dispute.

To my mind the central issue in this action is whether or not the
land the subject-matter of this suit is clan or stool land within the meaning
of the Administration of Stool Lands Act. By section 31 of the Act, stool land
is defined as follows:

“Stool land” includes land controlled by any person for the
benefit of the subjects or members of a Stool, clan, company or community, as
the case may be and all land in the Upper and Northern Regions other than land
vested in the President and accordingly ‘Stool’ means the person exercising
such control.”

Counsel for the defendant has submitted that the Akan word “ebusua”
meaning family is also the word for clan. In view of this, counsel submits that
there is a certain amount of laxity in the translation of the word “ebusua”
into English.

It does appear that when the word family is used, it does
sometimes mean a family per se and at other times a clan. It is therefore
necessary in this action to distinguish clearly between the words clan and
family. The ordinary family property is not caught by the Act, except that
family property may also be affected by paragraphs (iii) and (v) of section 1
of the Rents (Stabilization) (Amendment) Act, 1963.

Mr. Benjamin has submitted that an ordinary family within the Akan
context comprises all those persons lineally descending from one common female
ancestress. In support of this submission, counsel cited Sarbah on Fanti
Customary laws (2nd ed.) pages 33-35 and Ollennu on Principles of Customary
Land Law in Ghana, p. 140.

Counsel further submitted that another test whether a group of
persons belongs to one family is whether or not the group has a common family
residence. The other incidents of family relationship are not peculiar to a
family per se but could also be incidents of clan relationship; such matters as
contribution towards funeral expenses and a common burial ground.

On the other hand Rattray in his Ashanti Law and Constitution (2nd
Impression) at p. 63 defines a clan as follows: