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DONKOR v. DANSO


  • New
  • 1959-03-25
  • HIGH COURT
  • GLR 147-150
  • Print

OLLENNU J.


Summary

Stool land?-Subject's usufructuary title?-Outskirt land?-Kwahu custom?-Infringement of natural justice, equity and good conscience?-Infringement of decisions of Supreme Court.

Headnotes

Yaw Donkor and his ancestors were subjects of the Kwahu Stool. An ancestor of Yaw Donkor cultivated a portion of the Kwahu Stool land at Awenade, and that portion was in the possession of Yaw Donkor's family. In course of time the land became outskirt land. Without the consent of Yaw Donkor and his family, the Stool granted the land in question to another subject of the Stool.Yaw Donkor commenced proceedings in the Kwahu Local Court (Grade "A") at Nkwatia against Opanin Kwabena Danso, as Odikro of Awenade and representative there of the Kwahu Stool.At the trial, evidence was given by the Secretary of the Kwahu State Council as to Kwahu custom, by which the Stool had the right to re-possess itself of previously aliented land, if and when the land became outskirt land. His evidence was that by Kwahu custom as a town extends or develops, all lands which fall within the outskirts of that town become absolutely vested in the Stool for all purposes. Subjects of the Stool who have cultivated, and have been in occupation of, that land, for whatever period before the town extended to it, forfeit the whole of their right, title and interest whatsoever in that land. The Stool is entitled to grant, or otherwise alienate, that land to any person whatsoever as a tenant, licencee, or purchaser without reference to the subject who occupied it. The subject who has so cultivated, and been in occupation of, the said land is not entitled even to compensation for whatever thing or things he may have on the land, be it growing crops or structures affixed thereto. But, in spite of that deprivation, the subject is at all times compellable to perform the customary services due from him to the Stool.The Kwahu Local Court found the facts as set out above, and accepted the evidence of the State Secretary as to custom. It accordingly dismissed Yaw Donkor's claim.Yaw Donkor appealed to the Land Court, Accra (Land App. No. 151/1958).

Judgement

(His lordship stated the facts, and proceeded):-

The Court of Appeal has laid down the principle which should guide the Supreme Court as to the proper method of ascertaining the native custom applicable to a particular case. In Anane v. Mensah (p. 50 of this volume) their Lordships said:

"Native customary law is peculiarly within the knowledge of the Native Courts, and the opinion of a superior Native Court on native custom must be preferred to the opinion of an inferior Native Court, unless it is either contrary to a decision of the Supreme Court or of the Privy Council on the point, or 'is repugnant to natural justice, equity and good conscience'."

Applying this principle, I proceed to examine the native custom which the Kwahu Local Court 'A' accepted and applied in determining this case, in order that I may decide whether it is a custom which the Supreme Court should countenance.

The evidence led by the State Secretary that a subject is at all times compellable to render customary services to the Stool is very significant in this matter. One of the incidents of the occupation of Stool land is the liability of the occupier to perform customary services to the Stool. Where the person in occupation of the Stool land happens to be a stranger, it is often improper or undesirable that he should be called upon to render the customary services. In such circumstances, therefore, performance of those services is commuted into a contractual tenancy agreement or licence for a composite sum, which might be termed the purchase-price for the land.

In Land Appeal No. 21/1957 (entitled Baidoo v. Osei anor.) I stated and explained this in the judgment delivered by me on the 18th December, 1957, in the following words:

"By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the Stool, so [p.149] long as the alienation carries with it an obligation upon the transferee to recognise the title of the Stool, and to perform the customary services due to the Stool from the subject-occupier. Where the transferee is a stranger, i.e., a non-subject of the Stool, it is usual for the Stool to commute the customary services which so devolve upon the transferee to a tenancy agreement of one form or another, since by native custom it may sometimes be undesirable, indeed sacrilegious, to admit the stranger-transferee to the performance of customary services for the Stool. Thus, in an Akan State, it would be undesirable that a stranger of a tribe whose custom is circumcision should perform rites connected with the Stool. Equally, in a Ga-Adangbe or Ewe State, it would be undesirable that a stranger of a tribe whose custom is non-circumcision should perform customary rites for the Stool. In either case it would mean desecration of the Stool."

If the stranger who by contract pays rent, tolls, tribute, or purchase-price in lieu of the customary services is entitled at all times to retain his possession of the Stool land provided he has paid the purchase-price or continues to pay rent, tolls or tribute, it is revolting to say that the subject, who is compellable at all times to render customary services to the Stool, can be deprived (while he is still willing to serve the Stool loyally) of the whole of his right, title and interest in the Stool land over which he has acquired a usufructuary title. Such a custom, in my opinion, "is repugnant to natural justice, equity and good conscience," and should not be enforced by the Supreme Court.

But apart altogether from the fact that the custom which the Native Court applied in this case "is repugnant to natural justice, equity and good conscience," it is contrary to decisions of this Court, and of the Court of Appeal. These Courts have held that the Stool cannot, without reference to the subject who owns the usufruct in a portion of the Stool land, alienate or otherwise deal with such Stool land. And they have held that in consequence, a subject can successfully maintain an action against the Stool for the declaration of his usufructuary title, or for trespass to his portion of the Stool land, and for recovery of possession of such land from any person to whom the Stool so wrongly grants or alienates it (Ohimen v. Adjei anor. (2 W.A.L.R. 275); Thompson v Mensah (Court of Appeal, Civil Appeal No. 54/57, delivered on the 28th November, 1957); Baidoo v. Osei anor. (Land Court, L.A. No. 21/1957, delivered on 10th December, 1957); Wutor v. Gyebi (Land Court, 9th March, 1959); Ashiemoa v. Bani anor. [p.130 of this volume]. With the exception of the case of Thompson v. Mensah, all the cases cited, particularly Ashiemoa v. Bani, are exactly on all fours with the present case.)

The native custom applied by the Kwahu Local Court 'A' having been shown to be "repugnant to natural justice, equity and good conscience," and also contrary to judgments of the Supreme Court, it cannot be entertained by this Court, and the judgment (which is based solely upon that alleged custom) must be set aside.

Other points of law which were raised by learned Counsel for the respondent (for example, the necessity to have land for the development of a town) having been fully dealt with in the case of Ohimen v. Adjei , need not be further considered in this judgment.

Decision

<P>The appeal is therefore allowed.&nbsp; The judgment of the Native Court is set aside, including their order as to costs.&nbsp; Any costs paid are to be refunded.&nbsp; For the

Plaintiff / Appellant

Ampah-Sarpong

Defendant / Respondent

Koranteng-Addow

Referals

(1)    Anane v. Mensah (p. 50 of this volume);

(2)    Baidoo v. Osei & anor. (unreported);

(3)    Ohimen v. Adjei & anor. (2 W.A.L.R 275);

(4)    Thompson v. Mensah (unreported);

(5)    Wutor v. Gyebi (unreported);

(6)    Ashiemoa v. Bani & anor. (p. 130 of this volume);

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