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ASSEH v. ANTO


  • appeal
  • 1961-02-20
  • SUPREME COURT
  • GLR 103-108
  • Print

KORSAH, C. J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Customary law?-Land?-Usufructuary interest?-Whether transferable?-Distinction between title simpliciter and possessory title?-Gift inter vivos?-Whether maxim quicquid plantatur solo solo cedit known to customary law.Membership of family?-Slaves Emancipation Ordinance, Cap. 108 (1951 Rev.) S.2.

Headnotes

The late Opanyin Yena cultivated eleven cocoa farms on the land of the Barfo family, with their permission. Before his death, he had given two of the said farms to Apreku. Apreku?'s successor had successfully brought an action of declaration of title to the two farms in the Ajumako Native Court ?"B?" of Odoben, which was confirmed by the Land Court (Ollennu, J.). On appeal to the Supreme Court it was argued that:-(1) Opanyin Yena had elected to become a member of the Barfo family and therefore on his death, his farms on Barfo family land became the property of the Barfo family;(2) that during his lifetime, Opanyin Yena could not without the consent of the Barfo family make a gift of any of his farms on their land to any one not a member of the family;(3) that if any such gift were made to Apreku, it was limited to Apreku?'s lifetime; and(4) that Apreku?'s claim to be the successor of Opanyin Yena is based on the fact that Opanyin Yena was a slave of Abokyi, the pre-[p.104] decessor of Apreku and such claim is both repugnant to natural justice and also against the law of Ghana.

Judgement

JUDGMENT OF KORSAH C.J.

This is an appeal, by special leave, from the judgment of the Land Court which confirmed the judgment of the Ajumako Native Court ?"B?" of Odoben in a suit wherein the plaintiff?'s claim was: (1) for declaration of title to two cocoa farms situate at Bremaku on the Odoben Stool land, (2) an account of proceeds thereof; and (3) perpetual injunction.

The plaintiff's case is that the two cocoa farms were cultivated by his relative Opanyin Yena who during his lifetime parted with the farms as gifts to the plaintiff?'s predecessor Kweku Apreku; that Apreku took possession of the farms, reaped and enjoyed the proceeds thereof during the lifetime of Opanyin Yena; that Kweku Apreku survived Opanyin Yena, and continued to reap and enjoy the proceeds of the said farms until Apreku died; that he, plaintiff, as the successor of Apreku is therefore entitled to the said cocoa farms.

The defendant does not dispute the following facts: (a) that the two cocoa farms were cultivated by Opanyin Yena, (b) that Opanyin Yena [p.105] parted with them to Kweku Apreku, (c) that Apreku survived Opanyin Yena, and continued to reap and enjoy the proceeds of the said cocoa farms until he died, and (d) that the plaintiff is the successor of Apreku. But the defendant contends that the said gift was limited to the life of the said Kweku Apreku, the plaintiff's predecessor, consequently, the said farms reverted to one Mr. Assimah as successor of the late Opanyin Yena by virtue of the instrument which was tendered in evidence at the trial, marked exhibit A, probate of which was granted on the 23rd September, 19601, as the last will and testament of Kweku Opanyin Yena.

In the judgment delivered by the native trial court on the 13th December, 1956, it will be observed that after discussing the evidence with meticulous care, it was held:

"the court is satisfied that the two cocoa farms were given to Apreku by way of gift forever by late Opanyin Yena during his lifetime which means that Apreku, his heirs, executors, administrators, successors etc. are entitled to make use of this gift forever. And that is the reason why Apreku made use of this gift till he died. Also the Court is satisfied that Opanyin Yena cultivated about eleven cocoa farms more or less and out of these eleven only two were given to Apreku. Following the evidence adduced by plaintiff and his witnesses the court believe the evidence of the foregoing on the part of plaintiff and his witnesses in all respect. Also the court is of opinion that defendant's pretentious claim of ownership of the two only cocoa farms given to Apreku by way of gift is against natural justice."

On appeal to the Land Court, Ollennu J., in dismissing the appeal said: "The native court reviewed the evidence led by both sides with meticulous care, and accepted the plaintiff?'s case. Their findings are amply supported by the evidence before them?".

Counsel for the appellant introduced four new grounds of appeal. [His lordship read the grounds which are set out in the headnote and continued:] It will be seen that these grounds introduce issues which were not canvassed either at the trial or on the appeal before the Land Court. We, however, allowed counsel to argue them because of the allegations which counsel contended might reasonably affect the legal status of Opanyin Yena with the consequential effect upon his estate.

By the first ground, it is contended that Opanyin Yena was originally a slave of the Abokyi family of Akim Swedru, but had become a member of the Barfo family of Odoben because he voluntarily elected to stay with the latter family at Odoben and cultivated the farms on the land belonging to that family. This argument overlooks the fact that assuming Opanyin Yena to have been originally a slave of the Abokyi family, he became a free person by virtue of the Slaves Emancipation Ordinance2, and under the proviso to section 2 thereof which reads:

"All persons who after the 5th day of November of the year one thousand eight hundred and seventy-four shall have been or shall be born within the limits to which this Ordinance applies, who under the native laws of the protected territories, are or may be liable to be holden, or but for this Ordinance would or might be, or would or might be liable to be holden in slavery are, and shall be, and are hereby declared free persons to all intents and purposes: Provided that except [p.106] in so far as is inconsistent with this Ordinance and with the Slave-dealing Abolition Ordinance, nothing herein contained shall be construed to diminish or derogate from the rights and obligations of parents and of children, or from other rights and obligations, not being repugnant to the law of England, arising out of the family and tribal relations customarily used and observed in the protected territories."

As a member of the Abokyi family of Akim Swedru, Opanyin Yena was thereafter entitled to all the rights and benefits of his membership and could not without notice to the family and by deliberate public act cease to be a member of that family. I can find no evidence on record which supports the contention now advanced in this court, that Opanyin Yena ever contemplated severing himself from membership of his original family at Akim Swedru; on the contrary, his continued association with the members of that family and the gift of the two cocoa farms to Kweku Apreku, the head of that family, clearly negatived the suggestion that he had severed his connection with that family. In my view, exhibit A, the document by which Opanyin Yena purported to dispose of his self-acquired property, namely the cocoa farms he had cultivated at Odoben, does not by customary law support the view propounded by the appellant that he thereby severed his connection with the Abokyi family of Akim Swedru.

The second and third grounds of appeal introduce a novel proposition unsupported either by the evidence on record or by any legal authority. Throughout the proceedings even members of the Barfo family who gave evidence did not contend that such a gift would be void nor did they say that it was without their knowledge; Mr. Assimah, head of that family who gave evidence for the defendant recognised the gift, but qualified it by saying it was limited to the life of Kweku Apreku, the plaintiff?'s predecessor, but did not contend at the trial that the gift was either void or even voidable. If such a contention were tenable, it would certainly have been canvassed in the native court at the trial.

There is ample authority for the view that the legal maxim quicquid plantatur solo solo cedit is not applicable to land held under native tenure. Once permission of the owner has been obtained to build a house or to farm on family land the house or farm remains the property of the licensee and his heirs and successors until the house is demolished or destroyed, when the land would revert to the owners.

In Attopee v. Nancy3 the plaintiff gave the defendants land on which to build a house. A house having been built, the plaintiff claimed the land back. Held: the plaintiff must either pay the cost of the house or accept payment for the land. In Boun v. Steele4 the plaintiff bought land on which was a house erected by permission of the vendor. Held: that the plaintiff had no right to the house. In Amma v. Nelson5 the plaintiffs built houses on land which apparently belonged to another member of the family, and remained in undisturbed occupation for years, Held: that by Ga custom they had acquired the right to occupy their houses as long as they kept them up. In Lyall v. Dougan6 it was held that where the [p.107] house belonged to a judgment debtor, but not the land on which it stood, execution could issue against the house only. In Roberts v. Awortchie7 execution having issued against the defendant who had a house on company (Asafo) land and the land having been attached, it was held that the land could not be attached but that the house materials could.

There are the innumerable instances of farmers pledging and in some cases executing mortgages on their farms for loans for many years, but in no case has it been held that such pledge or mortgage necessarily conveyed title to the land on which the farm is cultivated, except where the parties clearly indicate such intention, and the landlord or owner of land gives his consent by executing the deed declaring such intention.

It is therefore obvious that in the absence of clear evidence to the contrary, the permission which was granted to Opanyin Yena to cultivate cocoa farms on Barfo land must be presumed to exclude title to the land as it is the practice and in accordance with native tenure and customary law. It must also be presumed that the right interest and title of Opanyin Yena in the said farms would in the absence of clear evidence to the contrary enure to the benefit of his heirs and successors if he died without parting with the said farms. On the other hand, where there is such clear evidence, as in this case, proving that he transferred his right interest and title in the two farms to Kweku Apreku without limitation during his own lifetime, then the said Kweku Apreku having stepped into the shoes of Opanyin Yena, such a gift inter vivos cannot be defeated by exhibit A which can take effect only in respect of property the testator possessed at the time of his death. Consequently on the death of Kweku Apreku such interest and title to the two cocoa farms which he had would pass to his heirs and successors.

Lastly, the contention of the appellant that plaintiff?'s claim is based on slavery cannot be sustained. It was not an issue before the native court nor was it canvassed during any stage of the proceedings prior to the 7th November, 1960, when the supplementary grounds of appeal were filed.

For these reasons this appeal should be dismissed.

JUDGEMENT OF VAN LARE J.S.C.

I agree with the judgment that my lord the Chief Justice has just read. It is common ground that the late Opanyin Yena obtained permission of the real owner of the land on which the disputed farms were cultivated and there is no denial that he was in possession of the farms with leave and licence, that is to say without paying tribute. He became an owner of a self-acquired interest or estate in respect of the farms and was possessed of title that may be used in the sense of usufructuary right - a very usual form of native title which is a qualification or burden on the final or absolute title of the owner of the land. Such interest according to the authorities is transferable so long as title of the allodial owner is recognised. This is the interest I consider to be the matter in controversy between the parties.

There is a concurrent finding of fact by the courts below, with which finding there is no ground for interfering, that the late Opanyin Yena had [p.108] transferred this interest of his, during his lifetime, to Kweku Apreku whose successor is the plaintiff in the case. The plaintiff was therefore entitled in my view to judgment, but as there is some nicety between title simpliciter and possessory title as I have indicated, and in view of the claim being a simple declaration of title, in dismissing the appeal I would, however, clarify the position by saying that the true position is that the plaintiff-respondent has a possessory title to the two farms in dispute and so long as he or his descendants do not abandon the farms they are entitled to as much security as if they are owners provided they recognise the title of the real owners of the land.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I also agree that the appeal should be dismissed and the position of the respondent clarified as indicated by my lord van Lare.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

E. Akufo-Addo

Defendant / Respondent

Dr. Danquah

Referals

1) Attopee v. Nancy (1853) Sar. F.C.L. 149; Grif. Dig. 92

(2) Boun v. Steele (1893) Sar. F.L.R. 77

(3) Amma v. Nelson (1911) D. & F.11-16,2; Grif. Dig. 93

(4) Lyall v. Dougan (1890) Sar. F.L.R. 56; Grif. Dig. 93

(5) Roberts v. Awortchie (1884) Sar. F. C. L. 149; Grif Dig. 93

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