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  • 1962-10-11
  • 2 GLR 98-101
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Customary law?-Land?-Right of farmer to vacant forest land adjacent to his farm.


The plaintiffs sued for ownership of a piece of forest land which they said they had reserved for further cultivation, but which the defendants had trespassed upon and cultivated. The trial local court, by a majority, found for the plaintiffs. The defendants appealed.


ACTION for recovery of forest land adjoining a cultivated farm.

This is an appeal from the judgment of the Atwima Mponua Local Court delivered on the 30th May, 1960. In that judgment the local court by a majority found for the plaintiffs in their claim to ownership and possession of forest land lying at Nyinahin at a place known as Taahoma.

The plaintiffs' case was that a few years before the action, they both cultivated virgin forest belonging to the Nyinahin stool, of which they are subjects, near a stream called Taahomaa. After planting cocoa and some foodstuffs the plaintiffs said they reserved a piece of the forest for future cultivation. Their complaint is that the defendants trespassed into this forest and cultivated it, thus provoking the present litigation.

The defendants deny the claim, and for their part testified that they were first on the Taahoma land. The first defendant said he first went on the land six years previously and reduced a portion of the forest into possession by cultivating it into a farm. According to the first defendant, while he was in possession, his son Donkor who was the first plaintiff?'s Son-in-law, asked whether it was possible to get vacant forest land for the plaintiffs who were desirous of farming. He said he agreed such forest was available near the track of a caterpillar close to a hill. In due course, Donkor showed them the area and the plaintiffs accordingly made their farm. The first plaintiff herself admits they were shown the land by Donkor. The latter testified in support of the defendants. The first defendant gave evidence that where he cultivated in the first year turned out to be swampy and he shifted to another forest near the caterpillar track so that when the plaintiffs came after him to make their farm he shared a boundary with them by the caterpillar track.

As far as I am able to cull the findings at the locus in quo from the various views of the panel, they, in the main, supported the defendants' version of the facts. The trial local court did not seem to me to show a great deal of appreciation of the facts and it does not surprise me that in the end they were not unanimous in their judgment. Had this case fallen to be decided merely on the facts, I would have felt myself constrained to prefer the view of Kwame Gyawu, the dissenting member. He certainly showed a greater appreciation of the case than the two others who by their number overruled him. Mr. Totoe for the respondents himself appreciates this and has not sought to put any gloss on the judgment of the majority.

Although Mr. Wiredu for the appellants made a good deal of cogent criticism of the judgment of the majority on the facts, his main argument was that as a matter of law, the judgment of the majority was wrong,[p.100] because, to quote ground (2) of the grounds of appeal: "The plaintiffs-respondents failed to satisfy the prerequisites which would have entitled them to maintain action in respect of unclaimed forest land." Basing himself on Korang v. Attal and Sefa v. Dadie,2 counsel contended that on their own showing, the plaintiffs could not be said to have reduced the forest in dispute into their possession. They did no more than reserve it for future cultivation. The defendants who are subjects of the Nyinahin stool are just as entitled as the plaintiffs to cultivate that forest. Mr. Totoe's answer to that submission is that it was grounded on a misconception of the plaintiffs' claim. Counsel says the plaintiffs are not claiming in trespass but have a customary right to possess and are indeed entitled to the land because it was adjacent to a farm they had already reduced into their possession by cultivation. Mr. Wiredu for the appellants countered that argument with the decision of the Court of Appeal in Anane v. Mensah.3 That case decides that any forest land on Nkawie stool land whether or not adjoining an existing farm can be allocated to any subject-farmer provided it is not secondary forest or fallow. There is no question here of the land being granted or allocated to the defendants by the Nyinahin stool but a considerable body of authority of which the cases of Kuma v. Kuma,4 Golightly v. Ashrifi5 and Ohimen v. Adjei6 are typical, establishes that stool subjects are entitled as of right to a grant from the stool of such area of stool land as they can conveniently work. Those cases establish that where no express grant of the land is made to a stool subject, he is deemed to have been granted impliedly such portion of vacant stool land as he occupies. Accordingly, although no express grant or allocation of the land was made to the defendants, they having gone into occupation of it when it had not been reduced into the possession of any other subject within the principle in Korang v. Atta and Sefa v. Dadie, supra and they being subjects of the Nyinahin stool, It seems to me that if the principle in Anane v. Mensah, supra, is applicable to the Nyinahin stool as distinct from the Nkawie stool, then the appellants?' case is made out.

Mr. Totoe has argued that Anane v. Mensah did not attempt to state customary law of general application and must be read as limited to Nkawie. That the principle in Anane v. Mensah cannot apply uniformly to the length and breadth of Ghana is plain enough, since land tenure varies in various parts of the country and the problem which arose in Anane v. Mensah cannot arise in those parts of the country where both this court and the Supreme Court have held that the notion of stool land is non-existent and that all land is owned by families and individuals. But I find it difficult to think that any reason exists why two stools having contiguous lands such as Nkawie and Nyinahin, and owing allegiance to one paramount stool with the same incidents of customary land tenure, should have two different rules of customary law governing the same matter. One cannot shut one's eyes to the desirability of a homogeneous development of the law in two divisions of one state with a common customary ruler. Unless I am constrained by authority to decide otherwise, I must accept the submission of Mr. Wiredu that the customary law [p.101] laid down in Anane v. Mensah cannot be limited only to Nkawie and that it applies at least throughout Ashanti.

Mr. Totoe has also argued that both sides agreed the customary law of Nyinahin and contended in effect that in accepting that to be the position, the trial court were merely giving their seal of approval to what both sides knew to be the custom. I am not troubled by any such argument. The local court did not expressly pronounce on the custom in its somewhat muddled judgment, and even in the very case of Anane v. Mensah the trial native court erroneously pronounced in favour of the custom contended for on behalf of the respondents and thus provoked decisions both of the Asantehene's Court and the Supreme Court to explode it.

I think Mr. Wiredu is right in his contention. I hold that the plaintiffs have failed to show that they were entitled as a matter of law to the reliefs which they sought and their claim ought to have been dismissed. Accordingly, I allow the appeal and set aside the judgment appealed from. For it, I substitute a judgment dismissing the plaintiffs' claim. The appellants will have their costs in this court assessed at 35 guineas and costs in the local court to be taxed.


Plaintiff / Appellant

E. K. Wiredu for the defendants-appellants.

Defendant / Respondent

T. A. Totoe for the plaintiffs respondents.


(1) Korang v. Atta (1958) 3 W.A.L.R. 349

(2) Sefa v. Dadie Supreme Court, December 23, 1960, unreported

(3) Anane v. Mensah [1959] G.L.R. 50, C.A.

(4) Kuma v. Kuma (1938) 5 W.A.C.A. 4

(5) Golightly v. Ashrifi (1955) 14 W.A.C.A. 676

(6) Ohimen v. Adjei (1957) 2 W.A.L.R. 275

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