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ADDAI v. BONSU


  • appeal
  • 1961-05-29
  • SUPREME COURT
  • GLR 273-277
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Customary law?-Land?-Sale of usufructuary interest with knowledge and consent of overlord?-Whether caretaker for and on behalf of overlord can object to sale?-Deed of conveyance purported to transfer fee simple?-Whether vendor?'s usufructuary interest passed or no interest at all.

Headnotes

The plaintiff had bought a cocoa farm from one Hamidu Yadiga. Yadiga had inherited a usufructuary interest in the said farm from his maternal brother, and his interest therein had been confirmed by a judgment of the local court. The Hiawuhene, as overlord, gave his consent to the sale to the plaintiff by Yadiga. The Kenyasi stool, in its capacity as caretaker of the land for the Hiawu stool, objected to the sale and refused to accept the plaintiff 's title. It was to the Kenyasi stool that Yadiga paid yearly tribute.The plaintiff instituted these proceedings against the defendant, the Kenyasihene, claiming, inter alia, declaration of title. He relied upon a deed of conveyance executed by Yadiga, which however, did not refer to Yadiga's usufructuary interest, but purported to convey a fee simple interest in the disputed cocoa farm. The trial court found for the plaintiff and dismissed the Kenyasihene's counterclaim for declaration of title, but this decision was reversed [p.274] by Land Court, Scott J., holding that since the plaintiff sought declaration of title based on the deed of conveyance which purported to convey a fee simple, of which his vendor, Yadiga was not seized, he had failed to prove his root of title. The plaintiff appealed to the Supreme Court.

Judgement

APPEAL from a judgment of Scott, J. in the Land Court, Sunyani, delivered on the 22nd June, 1960 (unreported) which reversed the majority decision of the Asantehene?'s ?"A1?" Court at Kumasi, given in the plaintiff?'s favour on the 10th May, 1958, in an action for declaration of title to land.

JUDGMENT OF VAN LARE J.S.C.

He delivered the judgment of the court. The plaintiff bought the cocoa farm, the subject-matter in dispute in this case, from one Hamidu Yadiga, the successor of one Salifu Moshie, who was during his lifetime the chief or headman of the Zongo community at Kenyasi. Salifu Moshie, the predecessor of Hamidu Yadiga, obtained a grant of a piece of Kenyasi stool land upon which he cultivated this cocoa farm being at Kenyasi No. 1, on land commonly known and called "Afrikyire?" otherwise known as "Abukoroso?".

It will appear that, as might be expected, some members of the Zongo community voluntarily assisted in the cultivation of the farm for their headman but for all practical purposes it was known to be the self-acquired property of the headman, Salifu Moshie, who during his lifetime enjoyed it as such and paid yearly tributes to the defendant stool. After the death of Salifu Moshie the Zongo community elected one Tahiri Moshie to the headship of the Zongo community of Kenyasi and it is not in dispute that Hamidu Yadiga, Salifu's maternal brother, succeeded Salifu as to his self-acquired property.

In order to test whether the cocoa farm in dispute in this case and another farm at Maaso believed to have been cultivated by the Zongo community for the late Salifu Moshie were or were not attached to the office of the headship of the Zongo community of Kenyasi, the new headman, Tahiri Moshie, instituted an action against Hamidu Yadiga and [p.275] some others claiming a declaration of title that as headman of the Zongo community of Kenyasi he was the owner of the two farms concerned, including the one in dispute in this case. The matter went before the Ahafo Native Court which delivered its judgment on the 16 May, 1955, whereby it was decreed that the farm, subject-matter in this case, be divided into two equal parts, Tahiri Moshie was to take one half and Hamidu Yadiga the other half. Thus by the judgment of the court, Hamidu Yadiga became entitled to an estate in the disputed farm, and which estate he could properly alienate.

It does appear that Hamidu Yadiga on the 15th May, 1955, that is on the eve of the judgment of the Ahafo Native Court which declared his said estate, by deed of conveyance sold and conveyed his interest in the disputed farm to the plaintiff in this case. We think notwithstanding the nature of the interest which Hamidu purported to have conveyed to the plaintiff he could not in law convey more than the estate of which he was in fact possessed. The conveyance from Yadiga to the plaintiff, exhibit B, upon which the plaintiff relies for his title, purports to convey a ?"fee simple?" but there is no doubt that Yadiga did not have that kind of interest in the farm and he could not therefore convey a fee simple to the plaintiff. The estate which Yadiga inherited from his late brother Salifu and which the Ahafo Native Court decreed in his favour, cannot be different from that which his deceased brother Salifu had in the disputed farm, and that interest is undeniably a usufructuary right or possessory title. Title in this country may be used in the sense of usufructuary right if there is no denial that the other party is in possession of the land with leave and licence and paying tribute. That was the position of Salifu Moshie in relation to the disputed farm and his successor Hamidu Yadiga could not be in any better position. Yadiga could only sell to the plaintiff and the plaintiff therefore bought a usufructuary right only and not a fee simple in possession as the deed of conveyance purports to show.

The plaintiff, since his purchase, entered into possession apparently of the whole farm without any challenge from the Zongo headman, Tahiri Mohsie who is entitled to one half of the disputed farm; but this is not a case between the plaintiff and Tahiri Moshie. On the other hand the defendant representing the Kenyasi stool challenged the plaintiff?'s interest in the farm by entering and driving away the plaintiff?'s labourers and plucked crops therefrom; whereupon the plaintiff instituted this action in which he claims declaration of title, injunction and damages.

The defendant claiming to be the owner of the land on which the disputed cocoa farm was cultivated denied Hamidu Yadiga?'s interest and in consequence refused to accept the plaintiff?'s title derived from Yadiga. We have already discussed Yadiga?'s interest in the disputed cocoa farm, and we think that the defendant?'s answer is not well-founded. The defendant representing the Kenyasi stool appeared perturbed because the sale to the plaintiff was without his knowledge and consent. It appears however on the evidence that the Kenyasi stool is not the owner of the land but only a supervisor or caretaker for and on behalf of the Hiawu stool. The Hiawuhene gave evidence for the plaintiff and deposed of his [p.276] knowledge and consent of the sale to the plaintiff by Hamidu. It was disclosed that at the date of the sale there was no occupant of the Kenyasi stool but the elders of the Kenyasi stool had been informed. In any case it is difficult to see what right the Kenyasi stool had to object to the plaintiff?'s interest when the Hiawu stool, the overlord, had given its consent. Nevertheless the defendant for the Kenyasi stool also counterclaimed that the Kenyasi stool was the owner of the disputed farm and that the sale to the plaintiff should be declared null and void.

At the trial before the Asantehene?'s ?"A1?" Court, the defendant stool represented that Salifu Moshie, the original grantee, made a tripartite share agreement with the Kenyasi stool and that after Salifu?'s death the disputed farm had been transferred to the Kenyasi stool in fulfilment or satisfaction of its tripartite share agreement with Salifu and by reason of such transfer the Kenyasi stool became the owner of the disputed farm. This did not find favour with the trial court and in a majority decision it was declared that they ?"do not believe the defendant?'s story that this Abukoroso farm was at any time given to the defendant?'s stool, and that it ever became the defendant?'s stool property?". On the evidence we for ourselves are unable to appreciate on what valid ground the defendant stool can object to the plaintiff?'s purchase of the usufructuary right which Hamidu had inherited from the original grantee Salifu as long as the plaintiff does not dispute the allodial ownership of the land on which the cocoa farm stands. The trial court rightly in our view found for the plaintiff on the question of title but awarded no damages; it could not order a perpetual injunction against the defendant from interfering with the usufruct of the land as it had no such jurisdiction; it also properly dismissed the defendant?'s counterclaim.

On appeal to the Land Court at Sunyani the learned judge in his judgment stated that it was conceded by both parties that the farm was originally cultivated by Salifu Moshie from whom the plaintiff?'s vendor derived title. The learned judge was also satisfied that Salifu regularly paid a yearly cocoa tribute in respect of the farm, and he also found that ?"it would appear that the original stranger grantee Salifu merely enjoyed a usufruct in the land which amounted to occupation of stool land under native customary tenure.?" He continued as follows: ?"Salifu?'s interest was consequently a limited one which though capable of being transmitted to his successor, could not even though undisturbed, ripen into absolute ownership.?' Although conceding to arguments on behalf of the plaintiff that what was intended to be conveyed by Hamidu to the plaintiff under and by virtue of the conveyance exhibit B, was ownership of the cocoa farm only as distinct from the allodial ownership of the land which was not the subject-matter in dispute, the learned judge of the Land Court was of opinion that because the plaintiff?'s vendor Yadiga, purported to convey a fee simple which he never had, the plaintiff therefore could not be held to be entitled to any interest in the farm in respect of which he could sue. In this, with respect, we think the learned judge erred. As we have earlier indicated a usufructuary right is a recognized estate which can properly be transferred under customary law.

[p.277]

?"It is a common form of tenure throughout the country for a landowner who has unoccupied virgin or forest land, which he or his people are unable to cultivate, to grant the same to a stranger to work on in return for a fixed share of the crops realized from the land. In such a case the tenant farmer, although he has no ownership in the soil, has a very real interest in the usufruct of the land. The arrangement may be carried on indefinitely, even by the original grantee's successor, so long as the original terms of the holding are observed.?"

per Coussey, P. in Akofi v. Wiresi and Abagya1.

The learned judge of the Land Court relying on the fact that the plaintiff sought declaration of title based on the deed of conveyance which purported to convey a fee simple of which his vendor was not seized, found that the plaintiff had therefore failed to prove his root of title and is not entitled to a declaration of any interest in the disputed farm. We think that the learned judge of the Land Court misled himself by placing undue reliance on the deed of conveyance, exhibit B, because the main issue which the trial court determined was that Hamidu Yadiga, the plaintiff's vendor had a usufructuary right which he inherited from his late brother Salifu Moshie and that it was competent for him to sell that interest which the plaintiff in this case had bought and as the trial court has found that such sale to the plaintiff of an interest in a stool land had received the customary consent of the overlord of the stool concerned, the plaintiff's interest became perfected. All that remained for the learned judge to do was to have defined the real interest which the plaintiff had in the disputed cocoa farm and to declare that as long as the allodial rights of the real owner of the land, that is the defendant stool as caretaker for the Hiawa stool were recognized, the plaintiff is entitled to remain in possession of the disputed farm and have the same protection as if he were in fact the owner so long as he pays the yearly tribute.

Having dismissed as untenable the main ground on which the learned judge of the Land Court based his judgment in reversing the judgment of the Asantehene's "Al" Court, it is unnecessary to deal with any other point. In the result we allow the appeal, and set aside the judgment appealed from, together with the order as to costs and restore the majority decision of the Asantehene's "A" Court. If the costs pursuant to the order of the Land Court be paid, they should be refunded. The plaintiff- appellant is entitled to his costs in this court fixed at G115 9s. and also his costs in the court below to be taxed.

Court below to carry out.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

N. Y. B. Adade

Defendant / Respondent

No appearance

Referals

Akofi v. Wiresi and Abagya (1957) 2 W.A.L.R. 257.

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