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KOTEY v. ODOI


  • New
  • 1962-05-14
  • HIGH COURT
  • 1 GLR 347-349
  • Print

JIAGGE, J.


Summary

Customary law?-Stool land?-Right of stool subject to alienate stool land in his possession without consent of stool.

Headnotes

The plaintiff claimed title to a piece of land at Bubiashie, Accra, through the Nikoi Olai family of which he is a member. The defendant claimed the same piece of land by virtue of a grant made to him by the Asere stool. The Nikoi Olai family are subjects of the Asere stool.

Judgement

Action for declaration of title to land and ancillary reliefs.

This is a claim for declaration of title to land, specific damages for the destruction of a building on this land and recovery of possession.

The land in dispute is marked on exhibit 4. It has on it a broken wall, a water pipe, and is on a road leading from Bubiashie in the south. Mukose lands are shown on exhibit 4 as lying north of the area in dispute and the boundary of Mukose land is marked green on exhibit 4. South of the green line that marks Mukose land is the wireless acquisition area. To the east of the area in dispute on exhibit 4 is shown a gravel pit and the road to Bubiashie leads south of the gravel pit.

The plaintiff's claim is that the grant of the land was made to him by the Nikoi Olai family. The defendant claimed that the same land was granted to her by the Asere Mantse. The issue, therefore, is whether or not the land in dispute forms part of unoccupied Asere stool land or is land in the possession of the Nikoi Olai family.

There is evidence of P.W.2, unchallenged, that the area south-west of the land in dispute was acquired compulsorily during the war by the army; that the army built huts on the land, and when they left, the huts were taken over by members of the Nikoi Olai family whose farms were said to have been on this land and had been destroyed when the area was acquired by the army.

Exhibit C is the judgment and proceedings in the land acquisition case No. 10/47,1 the acquisition of the wireless station aforesaid north of the area in dispute. There were nine claimants in that case and the Nikoi Olai family was the fifth claimant. Jackson, J. In his judgment held:

"It is common ground that the Aseres were not the aboriginal inhabitants and that they came as a result of defeat in tribal warfare from a place near Nsawam called Ayawaso. The evidence tends to support the story told by the 5th claimant that the village of Mukose was founded by some of the earliest settlers said to have been the descendants of a man whose name was said to be Nikoi Olai who died before the people reached this part of the country where the name Asere became attached to this community, and where they lived as subjects of a stool brought from their original home . . . The circumstances attending the arrival of the Aseres indicate that each family settled upon land near Accra with the permission of the aboriginal inhabitants, and that the family of which fifth claimant is now head, settled at the village of Mukose . . . Mukose fell into ruins and except for farms which were still maintained . . . no attempt to maintain a residence there was attempted other than by the erection of small huts used when the land was farmed. These huts were ultimately destroyed when the land was requisitioned by the army under the Emergency Regulations and those people whose property had been injured received compensation and later were given army huts in replacement of their old ones when the army surrendered their rights of occupation upon the termination of the war".

These findings of Jackson, J. therefore supported the evidence of P.W.2 about the army occupation of the land and the army huts left for members of the Nikoi Olai family. Jackson, J. found that the Nikoi Olai family "were the parties in possession of some seven-eighths" of the area of land acquired for the wireless station. This means that the Nikoi Olai family was found in possession of the area north and west of the area in dispute.

Exhibits E and F are letters from the Accra Municipal Council for quarrying rights at Bubiashie where the council paid the Nikoi Olai family for quarrying gravel. There is evidence that the quarry referred to in exhibits E and F was the one shown to the east of the area in dispute in exhibit 4. The Nikoi Olai family is therefore shown to be in possession [p.349] of lands north, east and west of the area in dispute. Bubiashie was held to be the area where the Nikoi Olai family got its water supply. It would seem therefore that the land in dispute is surrounded by Nikoi Olai family land. I am satisfied that the land in dispute is part of the area in possession of the Nikoi Olai family.

Jackson, J., in his judgement in the wireless acquisition case made it clear, however, that he regarded the Nikoi Olai family as subjects of the Asere stool and that as subjects of the Asere stool they possess rights of farming in the area subject only to such rights as may have been granted to strangers for farming by the Asere Mantse or are possessed by other subjects of the Asere stool. The Privy Council in Nii Amon Kotei v. Asere Stool2 considering the judgement of Jackson, J. on the point held:

"Jackson, J. seems to have thought it was a right of farming with no right to alienate except with the consent of the paramount stool. Hence his declaration that 'as subjects of the Asere Stool they possess farming rights in the area'. In this he no doubt had in mind the evidence which he had heard earlier in 1951 in cases about the Kokomlemle lands. But their Lordships would point out that the findings in the Kokomlemle cases depended entirely on the evidence in those cases: and must not be taken to be determinations of law which are of general application. Their Lordships have been referred to a series of decisions in the Land Court in recent years, affirmed on occasions by the Court of Appeal from which it appears that the usufructuary right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow subject without obtaining the consent of the paramount stool: for the fellow subject will perform the customary services. He can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it will descend to his family as family land except in so far as he disposed of it by will, which in some circumstances he lawfully may do. The law on the subject is developing so rapidly that their Lordships think it wrong to limit the right of the plaintiffs in the way that Jackson, J. did."

The judgment of Jackson, J. was then varied "so as to grant to the plaintiffs a declaration that they possess such rights in the area edged in green on the plan exhibit 1, as are conferred by law on a subject of a stool who is in possession". The plaintiff was a member of the Nikoi Olai family and was granted the land in dispute by this family who was in possession. The plaintiff, therefore, has legal title and will receive the declaration of title he seeks. There is evidence that the defendant and others were found on the land in dispute near the plaintiff's building soon after the fall of the said building. It is, however, not clear whether the building collapsed because of structural defects or whether it had been pulled down. I am not satisfied that it was pulled down by the defendant. The defendant, however, according to the evidence which I accept collected the building materials from the broken building to a nearby house. This act I consider is trespass to the plaintiff's property. The evidence in support of the specific damages claimed for the plaintiff's building that had collapsed is unsatisfactory.

The plaintiff will have the declaration of title he seeks and recovery of possession of both the land in dispute and the building materials carried away by the defendant. I award no damages for trespass; costs 80 guineas, inclusive.

Decision


Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

T.A. Nelson-Cofie

Referals

Nii Amon Kotei v. Asere Stool [1961] G.L.R. 492, P.C.
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