MENSAH vs. BLOW [1967]DLCA1515

Date	1967-06-12
Suit No.
Citation No.	[1967]DLCA1515

OLLENNU JA

APALOO JA

LASSEY J.A.

T. D. BRODIE-MENDS FOR THE APPELLANT

I. K. ABBAN FOR THE RESPONDENT

[1967]DLCA1515
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs. <o:p></o:p>BLOW <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 424<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:
12 JUNE 1967.<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">

T. D. BRODIE-MENDS FOR THE APPELLANT<o:p></o:p>

I. K. ABBAN 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, APALOO AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.A.<o:p></o:p>This is
an appeal from a decision of the High Court, Cape Coast, given in its appellate
jurisdiction dated 26 February 1964 (unreported), setting aside a judgment
dated 30 December 1960, given in favour of the plaintiff-appellant (hereafter
called the appellant) by the magistrate of the Local Court of Komenda, in which
he upheld the claim of the appellant to ownership and possession of a small
piece of farm land known as “Kotokuom” situate at Bisease in the Central Region
of Ghana, and directing that judgment be entered rather in favour of the
defendant-respondent (hereafter called the respondent) Ekua Blow for possession
of the said piece of farmstead.<o:p></o:p><o:p>&nbsp;</o:p>The main
question arising on this appeal is whether a licensee, who has been permitted
according to custom to occupy and use a piece of another person’s ancestral
land and who in fact has enjoyed an unfettered occupation and use of portions
of that land, could rely on such leave and licence as a defence to a claim by
the true owner or lessor or his descendants to exercise their natural rights of
ownership or possession over portions of such an ancestral land not actually
farmed upon or specifically reduced into effective use or occupation by the
licensee at custom. In other words, according to customary practice, can an
owner of land over which he has permitted a licensee to live and farm exercise
his undoubted right of ownership or use of portions of this land
contemporaneously with the right of the licensee to live on and use those
portions of such ancestral land which have not been specially allocated to or
appropriated to actual use by the tenant or licensee, or is the original
grantor or his descendants’ right to possession or to occupy and use this land
excluded entirely because of the subsistence of the license?<o:p></o:p><o:p>&nbsp;</o:p>At the
date of the proceedings in the Local Court at Komenda, the appellant’s claim
being one of damages for trespass, and the defence being that the land on which
the disputed farmstead was cultivated was a portion of the respondent’s
ancestral land, ownership or title was thereby indirectly put in issue, and the
court should be satisfied that the appellant had discharged the onus which lay
on him of demonstrating beyond reasonable doubt that the title to the disputed
land or farmstead was in him or his family.<o:p></o:p><o:p>&nbsp;</o:p>What is
in dispute between the appellant and the respondent was which of them is
presently entitled to possession of that part of the land on which lies the
disputed farmstead. There was no dispute between the parties as to the identity
of the farmstead being claimed by the appellant; equally it was not seriously
disputed that the said farmstead is situate on a portion of land appurtenant to
the land on which the respondent and her family have been living and are in
occupation. The fact that the respondent’s ancestors had occupied and used
portions of land on which the disputed farmstead was made was admitted at the
trial by the appellant; but he further explained that prior to the trespass
complained of by him, the respondent or her ancestor did not enjoy exclusive
possession of the whole of the area of which the farmstead in dispute formed
part because their long occupation of a portion of the entire land which the
appellant claimed to be his ancestral land was with the permission of his
ancestors.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial the appellant’s case in a skeleton form was that the land on which the
disputed farm is situate was his family’s property and he called evidence to
substantiate his family’s title to the whole of the land and also to show how
the respondent came to be on the land. The trial magistrate believed and
accepted the evidence of the appellant’s witness, Kwamina Esiampong, a farmer
living at Bisease, who testified to the effect that over 50 years ago two
elderly men in the respondent’s line of descent accompanied by some women sought
permission from the appellant’s ancestor one Kwesi Kunto to live on the
appellant’s family land. The evidence showed that the respondent’s ancestor
hailed from the Wassaw area where they migrated from.<o:p></o:p>According
to the appellant’s third witness the respondent’s ancestor’s request to be
permitted to stay with the appellant’s ancestors was favourably considered by
the elders at a m</main>