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  • appeal
  • 1960-12-20
  • GLR 249-253
  • Print



Customary law?-Land?-Farming rights?-Customary reservation of reasonable portion of forest land in front of existing farm for purposes of expansion.


The defendant cultivated a farm about one hundred and forty feet distance from the plaintiff's farm, although there was ample forest land available for farming. The plaintiff brought an action for damages for "obstruction" claiming that he was entitled by customary usage to a reservation of a reasonable portion of the forest land in front of his farm for future expansion. The local court and local appeal court upheld the claim of plaintiff. The defendant appealed to the Land Court.


Appeal against a decision of the Local Court "A" (Appeal Section) of West Akyem Abuakwa dismissing an appeal against the judgment of the Local Court "B" of Kade in favour of the plaintiff in an action for damages for obstruction. The plaintiff claimed that the defendant had made a farm on forest land in front of his (plaintiff's) farm thereby preventing him from making any extension to his existing farm.

(His lordship referred to the evidence and continued).


From the foregoing summary of the evidence of the parties, it will be noted that the plaintiff's complaint against the defendant was that in the first place the said defendant appropriated the piece of forest land in front of his cocoa farm which Kwadjo Pong trespassed on and which he the defendant himself had claimed from Kwadjo Pong for him. That when thereafter he (the plaintiff) had caused some Accra labourers to cultivate the remaining adjoining forest in front of his cocoa farm and planted rice in it and thereby extended his (plaintiff's) cultivation up to the limit of that rice farm, the defendant by his labourer Atta Paning cultivated the forest land immediately in front of his (plaintiff's') cultivation thereby barring or precluding him from further expansion.

The defendant's defence would seem to be summarised in his answers to the court hereinbefore already set out in which he alleged that he commenced his cultivation 200ft from the rice farm in front of plaintiff's cocoa farm, and that the plaintiff's claim was "false in the face of law", i.e. native customary law.

The issue of fact as to how near or far the defendant's cultivation was from the plaintiff's was obviously one to be resolved by an inspection: See Adabla v. Agama and others (6 W. A. C. A. at p. 167) in which the West African Court of Appeal said as follows:?-

?"The question involved was a boundary dispute which, as everyone with experience of land cases in this country knows, could not be decided satisfactorily without either a plan or a view of the land or both.?"

The court accordingly made the necessary inspection. They did not issue a separate inspection report but incorporated their findings in their final judgment and said as follows:?-

?"We found the defendant's new corn plantation in front of plaintiff's forest land and about 140 feet distance from the farm cultivated by plaintiff's said cocoa labourers.?"

The trial court then argued:?-

?"We therefore found [that if] the defendant knew that the whole area was not for plaintiff the 140 feet area he left in front of plaintiff's farm must not have been reserved by him for plaintiff."

They then concluded:?-

?"The plaintiff's claim was therefore upheld as a result of our inspection. Judgment is entered for plaintiff to [be entitled to have a] forfeit of defendant's said new farm.?"

On the face of it, it was a pure question of customary law, as the defendant's counsel has conceded whether the plaintiff was entitled, as an admitted farm owner, to a reservation of a reasonable amount of forest land in front of his cultivation for purposes of future expansion, so that a new comer was not entitled by custom to commence his fresh cultivation close or near to his farm. It would obviously depend on the circumstances of each particular case, having regard to the locality, the situation of the existing farm or the position as to available forest land and other factors, whether the customary law can be applied in each particular case. That tenants or farmers on stool lands acquire a diversity of [p.251] rights and interests, even against the stool occupant, is beyond question. See Kodadja v. Tekpo (Div. Ct. 1929-31, 45) and Ohimen v. Adjei and Another (2 W.A.L.R. 275). The trial court obviously thought the very fact of the reservation by the defendant himself of 140 feet for the plaintiff was cogent and decisive admission on his part that plaintiff was entitled to some reasonable reservation for future expansion as he claimed.

Defendant, expressing dissatisfaction with the judgment of the trial court, appealed to the local appeal court. They heard arguments and then inspected the situation of the disputed farm and in the course of their judgment, said as follows:?-

?"During our inspection we found that the defendant has left a big tract of forest land behind him [and] reserved only 140 feet distance of forest land to plaintiff for future cultivation . . . From our observation we found the defendant was wrong to make a farm so close to the farm of the plaintiff. Defendant ought to have started his farming from the River Dekyire up to meet the plaintiff and not to leave such tract of forest land behind him and make the farm so near to that of plaintiff.?"

This very definite, positive, and strong finding as to customary usage, appearing to be supported by sound common sense, is sought to be impugned on several grounds, and it becomes necessary to examine them.

Grounds 1 and 4 were argued together, the substance of which was that there was an onus on the plaintiff to establish title in order to succeed, and that he adduced no evidence of title and the judgment, according to the alleged admission of the trial court, was based only on the inspection.

I agree there is an onus on the plaintiff to establish his claim, but I am unable to agree that his claim was founded on ownership or title. The substance of his claim was that, as the successor of his uncle who as a resident was entitled to cultivate and farm on stool land and thereby become farm owner, he was entitled by customary usage to a reservation of a reasonable portion of the forest land in front of his farm for purposes of future expansion, and that the defendant in breach of that customary usage, had by his servant or labourer Atta Paning cultivated forest land to which he (plaintiff) was entitled having regard to the situation of his cultivations, and thereby obstructed him (the plaintiff) in his farming activities. The action raises the question purely of farming rights and no question of title whatsoever. As the trial court pointed out the defendant himself by his conduct admitted that plaintiff was entitled to some reservation of forest land, and it was just a question whether or not, having regard to the particular circumstances of the case, the defendant had not by the small portion of forest land reserved by him for plaintiff, as a matter of fact deliberately acted with the object of obstructing plaintiff's expansion in the future. The onus of proof therefore, in my opinion, was abundantly discharged. As to the point about the judgment being based only on the inspection, the trial court did say "plaintiff's claim was upheld as a result of our inspection?"?-but it is impossible to read the whole judgment and say they paid no regard whatsoever to the evidence [p.252] in court. Before coming to the sentence just referred to, they said: "Arguments in the hearing made us to inspect" obviously meaning that the controversial or conflicting evidence or cases of the parties caused them to inspect. In the whole context of the judgment therefore the sentence ?"plaintiff's claim was upheld as a result of our inspection" seems to mean that the court was able to resolve the conflict of evidence in favour of the plaintiff as a result of the inspection. The case of Boakye v. Baabu (2 W.A.L.R.183) cited in the course of counsel's arguments is clearly distinguishable and inapplicable. It seems to me that all that the plaintiff had to establish was that he was a farm owner, and that by custom he was entitled to the reservation of a reasonable amount of forest land in front of his holding as already mentioned, and that the defendant had committed an act amounting to a breach of this customary usage. I am satisfied that although there was only his evidence to establish the case his evidence was sufficient to substantiate all the aforementioned essential matters, so that the onus such as it was, was amply discharged.

Grounds 2 and 3 were next argued. Attacking and impeaching the customary usage which the two local courts applied in the determination of the case, learned counsel in the course of his arguments said as follows:?-

?"If I may state as counsel what I think is the origin of the popular belief that a cultivator is entitled to all the forest land in front of his farm it is this. In the old days when land was plentiful and cheap, in order to avoid disturbances of the peace, it was accepted as a broad general rule that if cultivators enter a virgin land for cultivation it was undesirable that they should cultivate too near each other. But the rule as framed in this case has no foundation whatever and is quite fantastic.?"

On careful examination, however, of the judgment of both local courts, it will be found that in fact neither court did anything more than take the finding of fact in this case that is, that the defendant's new cultivation was 140 feet from the limit of the plaintiff's holding (consisting of his old cocoa farm and his new rice plantation) and then declare that leaving just that area of 140 feet of forest land for plaintiff for future expansion, when there was a large tract of forest land behind, was contrary to custom.

Learned counsel went on to criticise the customary rule as not satisfying certain tests laid down by the superior courts: (a) being one which has existed without interruption from time immemorial; (b) having certainty about it, and (c) being a reasonable custom. To all these criticisms it seems to me, as pointed out by counsel for the respondent, a sufficient and conclusive answer, that both local courts have accepted it as a valid prevailing custom. In Kwasi v. Larbi (13 W.A.C.A. at p. 78) Lord Normand, observed in respect of a certain customary question under debate and pointed out the proper attitude of the Appeal Court in respect of declaration of native customary law or usage as follows:?-

?"These matters are, it is agreed, questions of native customary law. It is therefore embarrassing to find that while Native Court 'B' decided in favour of the respondent this decision was reversed by the Native Appeal Court. Had the two courts agreed their Lordships would have been disposed to accept their ruling as an authoritative [p.253] application of native customary law, which ought not to be overruled except for clear and convincing reasons."

It is quite clear therefore that in this case where both courts have "agreed" that in all the circumstances the defendant has cultivated forest land which by its distance of 140 feet from plaintiff's cultivation or holding was in the contemplation of customary law "too close", there can be no justification for over-ruling either the form of the local courts declaration of the custom or the application of it to the particular facts of the case. But in point of fact it is a well-known custom oft declared by local courts throughout the country and had I the time and energy I would have sought out several cases which have come on appeal to the land court in which the declaration of the custom has been made. The latest case was from the Kwahu Local Court "B", Tanor v. Dapomah ([1960] G.L.R. 241) in which the court declared as follows:?-

?"According to Kwahu custom of cultivating forest land another cultivator on the same land has to leave a fair portion of the forest land adjoining the other farmer's farm or land before starting to cultivate his or her own farm. This custom was ignored and the latter starting right from the former's farm or land contravenes the customary law of Kwahu regarding cultivation.?"

Counsel has ably urged all that there was to be argued and urged in favour of the defendant appellant, but it seems to me the findings of fact and of the resulting position upon the application of the relevant prevailing customary law to the said facts, are too clear, decisive, and positive, to justify any interference by an appellate court.

In the result I dismiss the appeal with costs assessed at 12 2s.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

Ofori Atta

Defendant / Respondent



(1)  Adabla v. Agama and others 6 W.A.C.A. 165;

(2)  Kodadja v. Tekpo Divisional Court 1929-1931, 45;

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

(4)  Boakye v. Baabu 2 W.A.L.R. 183;

(5)  Kwasi v. Larbi 13 W.A.C.A. 76;

(6)  Tanor v. Dapomah [1960] G.L.R. 241.

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