NII AGO SAI vs. NII KPOBI TETTEY TSURU III [2010]DLSC2569

Date	2010-03-24
Suit No.	CIVIL APPEAL NO. J4/21/2008
Citation No.	[2010]DLSC2569

ATUGUBA JSC (PRESIDING)

ANSAH JSC

OWUSU (MS) JSC

DOTSE JSC

BAFFOE-BONNIE JSC

NENE AMEGATCHER FOR THE APPELLANT

WILLIAM A. ADDO FOR THE RESPONDENT

KIZITO BEYUO FOR THE CO-DEFENDANTS/APPELLANTS

[2010]DLSC2569
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													<main id="main" class="content" style="min-height: 60rem" >NII AGO SAI<o:p></o:p>vs.<o:p></o:p>NII KPOBI TETTEY TSURU
III<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/21/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
24TH MARCH, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>NENE AMEGATCHER FOR THE
APPELLANT<o:p></o:p>WILLIAM A. ADDO FOR THE
RESPONDENT<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">

KIZITO
BEYUO FOR THE CO-DEFENDANTS/APPELLANTS<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;
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ATUGUBA
JSC (PRESIDING), ANSAH JSC, OWUSU (MS) JSC, DOTSE JSC, BAFFOE-BONNIE JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:10.0pt;
mso-add-space:auto;text-align:center;line-height:150%;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>ATUGUBA, JSC:<o:p></o:p>The
sole issue arising in this appeal is who owns the allodial title to Ogbojo
lands in Accra?&nbsp; Is it the Labadi Stool
or the Anahor and Dzirase families of Ogbojo village?<o:p></o:p>In
approaching this question one must bear in mind the intricacies of customary
land tenure in Ghana.&nbsp; The need for
caution in these matters is forcefully stated in holding 2 of the headnote to Bimpong v. Bawuah (1991)2 GLR 20 C.A, as
follows:<o:p></o:p>“(2)&nbsp; In this country, land might for generations be in the occupation of persons who were not
owners but who might have rights of occupation as licensees or customary
tenants or under other conditions known to customary law, the reversion
nevertheless being in the owner.&nbsp; And the owners were willing to allow such
occupation so long as the occupier did not make any adverse claims to the land.&nbsp; Hence, the mere occupation of land for long
periods was not conclusive evidence of ownership; and it was therefore
essential that the specific nature and origin of the tenure of occupiers of
land should be determined in all cases.&nbsp;
In the instant case, the trial judge should consequently have considered
the evidence of occupation with caution and should also have made proper
findings of fact as to the nature of the plaintiff’s interest in the Asakraka
and Ntabaanu portions of the Besease lands, especially in view of the
defendant’s claim that the land was given to his ancestors, which claim the
plaintiff contested.&nbsp; However, apart from stating that the plaintiff had
exercised acts of ownership over the land, the learned trial judge did not make
any findings on the nature and origin of the plaintiff’s possession even though
he made positive findings of fact, supported by the evidence on record, as to
the settlement of the defendant’s family on the land.&nbsp; Furthermore, there was no certainty about the
plaintiff’s title to the land or as to the identity of the portions of the land
he claimed.&nbsp; Thus the most that could be
said of the nature of the plaintiff’s interest in the Asakraka and Ntabaanu
lands was that he was entitled to stay on those portions with the leave and
licence of the defendant’s family, and that they (the plaintiff and his family)
were entitled to live there as long as they recognised the title of the
defendant.” <o:p></o:p>The
appellant claims allodial title to the land by reason of settlement whilst the
respondent claims the same by conquest.&nbsp;
It is trite law that both modes are legitimate customary means of
acquiring such allodial title.<o:p></o:p><o:p>&nbsp;</o:p>It
is notorious that the La stool has acquired certain lands by conquest.&nbsp; See Owusu
v. Manche of Labadi (1933) I WACA 278.&nbsp;
The burden of the appellant’s case is that though the La Stool owns
certain lands by conquest they do not include Obgojo lands.<o:p></o:p>It
is to be noted that the respondent’s claim to the land rests largely on
traditional evidence as to the said conquest which dates as far back as
1690.&nbsp; Reliance is also placed on,
principally, Owusu v. Manche of Labadi, supra.<o:p></o:p><o:p>&nbsp;</o:p>Certain
facts in the case are beyond dispute.&nbsp;
One of them is that the first settlers of Obgojo lands are the Anahor
and Dzirase families.&nbsp; Accordingly the
only question is whether the allodial title was thereby acquired by them.&nbsp; How and in what capacity the land in dispute
was acquired is of course a question of fact in the light of the customary law.<o:p></o:p><o:p>&nbsp;</o:p>There
is no doubt that one of the ways of establishing an allodial title of a stool
is occupation and user of the land in question by its subjects after its
acquisition by the stool.&nbsp; However
occupation and user of land by stool subjects is not necessarily proof of the
stool’s title to the land in question.<o:p></o:p>