FANYIE AND OTHERS vs. LAMPTEY [1988]DLCA738

Date	1988-02-04
Suit No.
Citation No.	[1988]DLCA738

AMUA-SEKYI J.S.C.

AMPIAH JA

ESSIEM J.A.

E. B. ODURO FOR THE APPELLANTS.

E. V. A. ADJETEY FOR THE RESPONDENT.

[1988]DLCA738
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													<main id="main" class="content" style="min-height: 60rem" >FANYIE AND OTHERS <o:p></o:p>vs. <o:p></o:p>LAMPTEY <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 269<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
4 FEBRUARY 1988<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">

E. B. ODURO FOR THE APPELLANTS. <o:p></o:p>

E. V. A. ADJETEY 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">

AMUA-SEKYI J.S.C., AMPIAH AND ESSIEM
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.S.C.<o:p></o:p>The
plaintiff, Kobina Fanyie, and two others sued the defendant, Odartey Lamptey,
also known as Ataa Nkpa, for a declaration that they are abusa tenants and for
an order compelling the defendant to enter into a written agreement to that
effect. There was no dispute that the land which the defendant gave out to the
plaintiffs was forest land or that they expended their own energy and resources
on it to reduce it to arable land and to plant cocoa thereon. If custom was to
be observed, then the tenancy would be abusa; but it was the case for the
defendant that the plaintiffs agreed to hold the land as abunu tenants. Okunor
J. who tried the case in the High Court Cape Coast, was of the opinion that the
burden of proof was on the plaintiffs and that they had failed to discharge it.
He dismissed their action.<o:p></o:p><o:p>&nbsp;</o:p>Two
questions arise on this appeal. First, whether the burden of proof was on the
plaintiffs or on the defendant; secondly, whether an agreement of the kind
claimed by the defendant is enforceable.<o:p></o:p><o:p>&nbsp;</o:p>Apart
from sowing tenancy which is of a rather transient character, customary law
recognises two farming tenancies of a more or less permanent nature, namely
abunu and abusa. For the distinction between them I cannot do better that to
quote from Ollennu, Principles of Customary Land Law in Ghana (1st ed.) at 81
where he writes:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Abusa
... is the system whereby an owner of uncultivated land grants it to another
person (usually a stranger) to cultivate, and to share the produce of that farm
with the owner in the ratio of 1:3. Abunu or abehem on the other hand, is the
system by which either (a) a person who has already cultivated his farm
afterwards hands it over to another person, whether a stranger or not, to plant
and maintain it, and to share the proceeds into moieties, or (b) where the
owner of the land gives financial assistance to the tenant to make the farm on
the landlord’s land.”<o:p></o:p><o:p>&nbsp;</o:p>And in
Akofi v. Wiresi and Abagya (1957) 2 W.A.L.R. 257 at 259, W.A.C.A. we find the
following passage:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
Native trial Court observed that under the abusa system the tenant pays all
expenses in connection with working the property, the landowner not
contributing towards the cost of labour, while under the ebuenu or one-half
system, the cost of making the farm is, in the first instance, borne by the
landlord and the farmer-tenant is then placed in charge of the farm to maintain
and improve it. ‘As the tenant does not contribute to the cost of making the
farm, he gets only one-half of the farm.’ “<o:p></o:p><o:p>&nbsp;</o:p>From
these definitions it can be seen that a plaintiff who alleges that he is an
abusa tenant has the burden of persuasion with regard to the following facts:
that the land was uncultivated, that is a forest, and that he made the farm
with his own funds and labour.<o:p></o:p><o:p>&nbsp;</o:p>In this
case, however, the plaintiffs were relieved of this burden by admissions made
by the defendant on the pleadings and in his evidence. First, as to the
pleadings, in paragraph 4 of the statement of claim the plaintiffs averred
that, “The plaintiffs have ever since the acquisition broken down the virgin
forest on their respective lands and planted cocoa trees thereon.” This was
answered in paragraph 10 of the defence where it was pleaded that, “Paragraph 4
is admitted, but the agreement was to have abunu tenancy.” And, i</main>