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  • 1960-06-20
  • GLR 187-190
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Customary law?-Stool land?-Direct grant by family in possession?-Grant of land for recreational purposes?-Proceeds to be shared?-Nature of grantees' interest?-Whether a mere licence determinable at will or a right in "town land?" similar to that of abusa or abumim (abetsem) tenancy of agricultural land?-Land?-Essential requirements of sale of land under customary law.


In 1952 the defendants applied to the Akwapim stool for a grant of land for development into a football field. As the Oyoko family was in possession, the stool approached the family in accordance with customary law and the [p.188] family made a direct grant of a piece of the land to the defendants, under an agreement whereby the defendants were to develop the land and share the proceeds accruing from the land with the family. The defendants converted the land into a football field and paid annually to the family a third share of the "gate money."In 1956, a member of the Oyoko family without the consent and concurrence of the head and principal members of the family purported to sell the land to one Opanyin Kwadjo Donkor (the plaintiff). After several unsuccessful attempts to dispossess the defendants, the plaintiff in 1957 approached the family at Mamfe and bought, as he thought, the land. The transaction and performance of Guaha custom took place at Mamfe. The Oyoko family thereupon gave the defendants notice to quit. The defendants refused to quit the land and the plaintiff brought this action against them in the Akwapim Native Court "A?" for a declaration of title and recovery of possession of the land. The trial court gave judgment for the defendants and the plaintiff appealed to the Land Court.


APPEAL from a decision of the Akwapim Native Court 'A' on March 24, 1959 in favour of the defendants in an action for a declaration of title to land and recovery of possession.

(His lordship referred to the facts and continued).

The occupant of a stool and the traditional elders of the stool are the repositories of the tradition and customary law of their state; it is therefore expected that they should always act in conformity with the customary law. Again, apart altogether from being an occupant of a stool, Nana Kwadade II, known in his private capacity as Mr. Ofei Awere, was, before his enstoolment, an outstanding legal practitioner with considerable knowledge and experience of the customary law. It is not surprising therefore, that when the defendants, subjects of the stool, approached Nana Kwadade II and his elders for a grant of a portion of the stool land, the Omanhene and his elders i.e. the stool, did not by-pass the family in [p.189] possession of the land to make the grant, but rather, that they in turn applied to the family to make the grant direct to the defendants; this step taken by Nana Kwadade II and his elders is in conformity with the customary law of our land tenure: see Ohimen v. Adjei and Another (2 W.A.L.R. 275) and Wutor v. Gyebi (unreported).

Only one ground of appeal was filed and argued; it is that the judgment is against the weight of evidence. Under this ground it was submitted by counsel as follows:

?"(1) that there was sufficient evidence in proof of the plaintiff?'s title, and consequently the Native Court misdirected itself in refusing to grant the plaintiff the declaration of title he sought even if it could be said that he is not entitled to an order for recovery of possession, and

?"(2) that the defendants are mere licensees without any interests in the land, and could be ejected at will, and therefore the Native Court was wrong in holding that the notice to quit given to them was defective.?"

In my opinion the second point made by counsel is a question of law, not weight of evidence. I am further of the opinion that the first point also involved important principles of customary law.

Taking counsel?'s first submission the question which arises is: did the plaintiff prove title to any land, and if he did, to what land? For his title the plaintiff relies upon sale by customary law. Among the essentials of a sale of land by customary law are:

(1) identification of the area of land sold, and

(2) placing the purchaser in possession of the area sold in the presence of owners of the lands which form boundaries with the land being sold to ensure that no one else?'s land is delivered to the purchaser.

The identification of the land is made by demarcating the boundaries of the land; if it were agricultural land, boundary trees are planted or marks made on existing trees in the presence of the owners of the adjoining land, and if it were building land in a town some stones or sticks (in modern days pillars) are fixed at the corners.

At such identification and delivery the custom known in Akan as Guaha and in Ga Adangbe as Yibaa Foo is performed. Literally that custom means severing the leaf or branch from the tree, and signifies that the vendor has completely divested himself of the whole of his right, title, and interest in the particular piece of land, and vested the same completely in the purchaser: Ntrama v. Attia and Another (1 W.A.L.R. 94).

(His lordship examined the evidence of the sale of land to the plaintiff and continued:)

Upon these facts what piece of land has been identified as the land sold to the plaintiff of which a court can grant declaration of title? The plaintiff says this, his vendors say that. The two of them have never at any time agreed on any particular piece of land as the land to be sold and purchased. [p.190]

This principle of the customary law that in sale of land the parties should be ad idem as to the identity of the subject matter of the transaction and that the Guaha should be cut on the land after its demarcation is quaintly expressed by a Ga proverb which says " Moko yee yelenaa ye su mli " which means yams are not sold while they are in the soil, they should be uprooted and exposed so that the vendor should know what he sells and the purchaser should know what he buys.

Since the transaction between the parties is not in conformity with the customary law of sale of land, the transaction is void; the vendor sold nothing and the purchaser acquired nothing. Consequently the native court arrived at a correct decision when it held that the plaintiff was beguiled to purchase the shadow of this land in dispute and not the substance. But it must be pointed out that the reasons given for the said decision are quite wrong.

A plaintiff in a suit for declaration of title and recovery of possession can only succeed upon the strength of his own case, never upon the weakness of the defence. A defendant may not be able to show any title at all to, or any right or interest in the land. Nevertheless, the plaintiff will fail all the same if he is unable to produce evidence sufficient in law to warrant a declaration in his favour. Therefore, where the plaintiff is unable to establish his title, the court need not consider the case for the defence but will dismiss the plaintiff's case even if the defence shows that the defendant has no right to the land, and even if no evidence was led on behalf of the defence: Adumua-Bossman v. Bannerman (unreported) and Thompson v. Mensah (3 W.A.L.R. 240).

Consequently, the decision that the plaintiff acquired no title to any identifiable piece of land disposes of the whole appeal, and makes it unnecessary for me to deal with the second point on which counsel addressed the court at length. It is enough for me to observe that from the evidence that the licence was granted with customary practice, and particularly from the evidence led both by the co-plaintiff and the first defendant that under the said agreement the defendants were to develop the land at their own expense and to share all proceeds accruing from it with the owners, it appears to me that the licence granted is not a mere licence in the English sense, determinable at will; rather it is a right in town land which is of the same nature as abusa or abumim (abetsem) tenancy of an agricultural land, which cannot be determined upon short notice except where the tenant denies the title of his licensor.

Again if the sale made to the plaintiff in March, 1957 had been valid, the plaintiff conveyed the land with all encumbrances on it; therefore in August, 1957, the plaintiff would be the only person competent to serve notice to quit on tenants of the land, and not the Oyoko family, his vendors. It follows that the notice which Kwabena Asamoah the head of the Oyoko family purported to give the defendants in August, 1957, is not effective.

The appeal is dismissed with costs.


<P>Appeal dismissed.</P>&nbsp;

Plaintiff / Appellant

Koranteng Addow

Defendant / Respondent

In person.


(1) Ohimen v. Adjei and Another 2 W.A.L.R. 275;

(2) Wutor v. Gyebi Land Court, Accra March 5, 1959 unreported.

(3) Ntrama v. Attia and Another 1 W.A.L.R. 94

(4) Adumua-Bossman v. Bannerman W.A.C.A., February 27, 1957; unreported.

(5) Thompson v. Mensah 3 W.A.L.R. 240.

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