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  • 1961-10-06
  • GLR 559-566
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Customary law?-Pre-enstoolment declaration of private property?-Family property improved by stool occupant during office?-Whether property becomes stool property.


The plaintiff, the Queen-mother of the Odau Division of Akyem Abuakwa and head of the Aduana royal family of Otwereso and Osenase instituted this action for declaration of title to a farm, recovery of possession and mesne profits. She alleged that the original forest was cultivated by members of her family into a farmstead and that her deceased uncle, Nana Obeng Akese developed the farmstead into a cocoa farm during his occupancy of the Osenase stool. The said Nana Obeng Akese abdicated from the stool before he died. During his tenure of office a stool treasury was established and a stool farms officer appointed to take charge of and collect the proceeds from all stool farms, which he paid to the treasury. The farm in dispute was not entrusted to the treasury officer. To the knowledge of the stool elders, Nana Akese treated this farm as his private property. On his abdication, the farm was, to the knowledge of the elders, not included in the inventory of stool properties which he handed over to his successor. The defendant, son to Nana Akese, and the present occupant of the stool claimed the farm as stool property.


ACTION for declaration of title to a cocoa farm made by a former occupant of the Osenase stool on family land.

In this case, the plaintiff claims that she is the Queen-mother of the Odau Division in Akyem Abuakwa, and the head of the Aduana royal family of Otwereso and Osenase. She claims declaration that the land and farm thereon, subject-matter of this suit, is the property of her said family, the royal Aduana family; she also claims an order for recovery of possession of, and mesne profits from the said farm.

She pleaded that the said land was originally cultivated by members of her family, Adwoa Anto, Yaw Baduo and Kwasi Ayebiahene or Ayebiafwe, when it was forest land, and later her uncle, the late Nana Obeng Akese, developed the land into a cocoa farm; she further pleaded that the defendant who is not a member of her said family has wrongfully taken possession of the said farm, and has refused upon demand to surrender it to the family.

The defendant admitted the allegation of the plaintiff that he was in possession of the farm, but denied all the other averments of fact made in the plaintiff's statement of claim. He pleaded that the farm in dispute was cultivated by Nana Obeng Akese while he was on the Osenase stool, and that the people of Osenase helped Nana Akese to make the farm; and further that in any event, the said farm is property of the stool, because the same was cultivated by Nana Obeng Akese while he was the occupant of the Osenase stool, and therefore by customary law it became merged into stool property upon the abdication or demise of the said Nana Akese.

The issues raised upon those pleadings therefore are:

(1) is the plaintiff the head of the Aduana royal family of Otwereso and Osenase;

(2) did Nana Akese cultivate the virgin forest to make the farm in dispute or did he develop a family farmstead into the cocoa farm; [p.561]

(3) if it was a virgin forest which he cultivated was Nana Obeng Akese assisted by the Oman of Osenase to cultivate the farms;

(4) if Nana Obeng Akese was not assisted by the Oman in making the farm, are the circumstances about the making of the farm such that in law the farm should be regarded as having become stool property.

The trial proceeded on these lines until the second witness for the defendant came into the witness-box. From then on the story changed completely. The case put up by the defence from that moment up to the close of their case is that the farm was cultivated by the Oman of Osenase, that Nana Obeng Akese had nothing to do with its cultivation, he never at any time had possession of it, and he never at any time claimed ownership of it.

As a general rule there is no onus on a defendant who has not counterclaimed to prove anything. He is entitled to plead any facts or take any line of defence which may enable him to defeat the case for the plaintiff so long as he does not practise fraud upon, or attempt deliberately to mislead the court. At the same time a court will not look favourably at a last minute change which is in direct conflict with a defence which has been maintained during the major part of the trial, particularly when the new line is resorted to after the close of the plaintiff's case. This does not however in any way lighten the onus which rests upon the plaintiff to establish his case, unless the change amounts to an admission of liability. Therefore the evidence tendered by the plaintiff must be examined carefully to determine whether or not she has established her case.

Now the evidence led by the plaintiff that she is Queen-mother of the Odau Division of Akyem Abuakwa and the head of the Aduana royal family was not contradicted, nor even challenged in cross-examination. I therefore accept that evidence.

Again not only was the evidence by the plaintiff that the defendant is not a member of her branch of the Aduana family, i.e. the Aduana royal family, not denied, it was in fact corroborated by D.W.2, Opanin Kwabla Poakwa, who said that "when it came to the succession to the stool of Osenase, the elders said they did not want a candidate from the royal family to occupy it, and that they would rather have a son of a chief. So we nominated Anaafi the defendant". That evidence led on behalf of the defendant must therefore be accepted.

The plaintiff led evidence that a stool treasury was introduced in Akyem Abuakwa while Nana Obeng Akese was Odauhene, that all farms belonging to the stool were listed and placed under an officer known as the stool farms officer, who accounted to the stool treasury for the proceeds of those farms; but that the farm in dispute has never been included in the farms so listed as stool property and has never come under the control of the stool farms officer. That important piece of evidence was admitted by the witnesses for the defence. In fact some of the said defence witnesses gave evidence which went further than merely confirming that the farm in dispute has never come under the control of the stool treasury as all stool farms should. [p.562]

By custom an occupant of a stool or the head of a family cannot, while he remains such occupant or head, be called upon to account for stool or family property under his control: Abude v. Onano1 Heyman v. Attipoe.2 But upon his removal from office or upon his abdication he is required to make such accounts as are reasonably necessary, and to hand over all stool or family property which had been in his possession, to persons nominated by the family or by the elders of the stool, or to certain holders of traditional office who by custom are the custodians of the family stool properties when the stool or office of headship is vacant. As a rule the persons to whom the handing-over is made are persons who must know all the family or stool properties which the outgoing chief or head was in possession of.

For that taking-over an inventory is made and signed by both parties, i.e. the party making the handing-over and the parties taking-over. In the case of a family no property which is not family property should be included in the inventory, and in the case of a stool no property held by the outgoing chief which is not stool property should be included in the inventory.

Therefore the agreement by the people taking-over that any particular property known to them to have been in the possession of the ex-chief or ex-head should be excluded from the inventory, is a positive admission by the stool or family that the property so omitted is not stool or family property.

Now D.W.1 ?- ex-chief, in examination said:

"I was enstooled in 1951. At that time there was this cocoa farm at Osenase. It was the property of my late grandfather Nana Obeng Akese. My said grandfather was the occupant of the stool; he later abdicated to enable me to occupy the stool, and at the time of his abdication he told me that the farm belonged to him personally".

And in cross-examination he said:

?"Yes, what I have said is correct, namely, that before Nana Obeng Akese died, i.e upon his abdication, he told me that the farm in dispute was his private property and not stool property?".

D.W.5 ?-Kwasi Opoku also had this to say:

"It is correct that when P.W.2 abdicated an inventory was taken of all the stool or Oman properties in his possession and it is correct that Okyeame Atta and I signed the said inventory upon the authority of the Oman. It is correct that the farm in dispute was not listed in the said inventory as one of the properties of the stool or Oman.

It is correct that all farms which are stool or Oman properties were included in the inventory".

That evidence implies that this farm in dispute has never been included in the list of stool farms either for the purposes of the stool treasury or for handing-over upon his abdication as occupant of the stool; and the reason for that is that it is not stool property. [p.563]

On the issue of the cultivation of the farm, the plaintiff led clear evidence that the virgin forest was cultivated by her ancestors Nana Yao Baduo and another, that the original owners were succeeded by her ancestor Nana Kwasi Ayabiafwe and eventually Nana Akese developed the family farmstead into a cocoa farm. Under cross-examination she explained that the development of the area into a cocoa farm was the joint effort of Nana Obeng Akese and herself. She said: "I was present when Ohene Akese planted the cocoa, and I took part in it. Ohene Akese employed labourers to make the farm and both he and I worked with the labourers to make the farm; he and I contributed to pay the cost of labour". She denied a suggestion made by the defence that the Oman assisted Nana Akese in making the farm,

Similar evidence given by P.W.1, as to the cultivation of the virgin forest and the subsequent conversion of the farm into a cocoa farm by Nana Obeng Akese was not cross-examined upon.

This witness gave further evidence that at one time D.W.2 then occupant of the Otwereso stool sued him together with P.W.2 and another claiming a declaration that the farm was Otwereso stool property, but later abandoned the suit, and he, the witness had to refund to the Oman of Osenase all moneys they had contributed to assist him in the litigation. He said that he thereafter, while he was chief of Osenase, occupied the farm as property of his family and never at any time paid proceeds therefrom into the stool treasury.

P.W.2, who has been the linguist to the Osenase stool for over 30 years, also gave an eye-witness account of the original cultivation of the farm, and its subsequent conversion into a cocoa farm. Among other things he deposed that Nana Ayebiafwe was in charge and control of the farm when the said Nana Ayebiafwe installed Nana Obeng Akese on the stool, and continued in possession until his death, that upon his death his successor one Kwabina Gyasi took charge and control of the farm although Nana Obeng Akese was occupying the stool all that time, and that it was not until Kwabina Gyasi had died that the farm came into possession and control of Nana Obeng Akese. This witness further said that upon the abdication of P.W. 1 in March, 1959, the farm was entrusted to him, the witness, and D.W.5 to take care of, and to hand it over to the successor of P.W.1 on the stool if he should be from the plaintiff's family, otherwise to surrender it to the family. The witness denied a suggestion in cross-examination that the Osenase people joined Nana Obeng Akese to make the farm.

We might at this stage look at the defence. D.W.1 as earlier pointed out, corroborated the plaintiff's evidence that the farm is ancestral property of the plaintiff. D.W.2 was the first witness in the case who alleged that the farm was made by the Oman of Osenase not by Nana Akese with the assistance of the Oman. It turned out that he was not speaking from his own knowledge, and further that his memory is very defective. He insisted that although he was born in 1907, he is 63 years old now. When all are agreed that Nana Obeng Akese abdicated in 1951 and died in 1952, he alone maintains that Nana Akese abdicated between 1956 [p.564] and 1957. Again all are agreed, including D.W.1 himself, that when he, D.W.1, discontinued his claim against P.W.1 for the farm, the farm went into the possession of P.W.1, but this witness alone maintained that the farm has never left the possession of D.W.1 and has never gone into the possession of P.W.1.

The next witness D.W.3 also deposed that the farm was made exclusively by the Oman of Osenase, and that he himself took part in making it. According to him he has been a linguist for 35 years, and that farm was made after he had been linguist for twenty years, i.e. it was made only fifteen years ago, whereas the concensus of opinion is that the farm in dispute is a very old farm. What is more startling still about the evidence of this witness is that according to him, Ohene Akese has never had possession and control of the farm, and that as soon as the farm was made, the Oman entrusted it to Okyeame Atta and Kwasi Poku as caretakers. His evidence therefore contradicts the facts pleaded by the defence that Nana Akese was in possession of the farm. It also contradicts the evidence given by the majority of the witnesses, including the said Okyeame Atta P.W.2 and Kwesi Poku, that it was only upon the abdication of P.W.1 two years ago, that the two of them became caretakers of the farm.

D.W.4 who also claims that he took part in making the farm has a different version. His evidence is that when the Oman made the farm, they placed it under the care of the Mankralo. In cross-examination he stated as follows: "If evidence has been led in this case that Nana Obeng Akese was in possession and charge of this farm at any time, I say that evidence is false".

And the last witness for the defence D.W.5 who also claims that he took part in cultivating the farm, also denied that Nana Akese had never had control of the farm, he maintains that he is the caretaker of the farm up to date, while defendant's case as pleaded in paragraph 5 of his statement of defence is: "That at all material times from the commencement of this action the subject-matter has been in continuous possession of the occupant of the Osenase stool." By the occupant of the Osenase stool he meant himself.

From their demeanour, the content of their evidence, and everything about D.W.2, D.W.3, D.W.4, and D.W.5, it is abundantly clear that they are most untruthful witnesses. I reject the evidence given by each of them.

On the evidence as a whole I find that the land is the ancestral property of the plaintiff's family, the Aduana royal family, that it was developed into a cocoa farm by Nana Obeng Akese with the assistance of the plaintiff, physical and financial, and that at the time of its said development, Nana Obeng Akese was the Odauhene, i.e. the chief of both Otwereso and Osenase, and that in or about 1951, i.e. upon his abdication, Nana Obeng Akese created separate stools for the two towns, Otwereso and Osenase, but made it quite clear that the farm in dispute is his family property not stool property. I find also that the elders of the original stool never treated the said farm as property of the stool, consequently [p.565] they never had it included in the list of stool farms to be controlled by the stool treasury, and since the creation of the two stools in or about 1951 neither the stool of Otwereso nor the stool of Osenase has regarded it as stool property. Consequently none of them has had it listed for the purposes of the stool treasury and never had it included in the inventory of stool property which should have been handed over upon the abdication of Nana Obeng Akese or upon the abdication of P.W.1. Therefore although Nana Obeng Akese had charge and control of the farm and considerably improved it while he was on the stool the said farm cannot in law be stool property; that is so for the following reasons:

Firstly the land had already become the property of the Aduana royal family before Nana Obeng Akese came into possession of it, therefore only the occupant of the stool who belongs to the Aduana royal family would be entitled to occupy it, and he would do so, not as stool property, but as property of the family. In this respect this case is on all fours with the case of Serwah v. Kesse . 3

Secondly, where a person assisted by a member or members of his family acquires property, that property is not his individual self-acquired property; it is from its inception, property of the family to which he and his partner or partners belong: Mensah v. S.C.O.A. and Boahene4. Therefore if an occupant of a stool, acquires property with the assistance of a member or members of his family the position would be the same, that is the property will be property wearing the character of family property in which he and the person or persons with whom he acquired it has each a life interest and which all of them acting together could alienate inter vivos, but upon the death of any one of them the property becomes full family property and would remain under the control of the survivor of those who acquired it; upon the death of the last of them, it will come under the control of the head of the family or any other person appointed by the family. Since such a property is not the individual self-acquired property of the occupant of the stool it will not become merged in stool property, therefore upon death, deposition or abdication of the occupant to the stool who helped to acquire it, the property would retain its legal status as family property. Therefore it is only an occupant of the stool who is appointed from the family who owns it, who could take charge and control of that property. The successor to the occupant who helped to acquire that property if he does not belong to the family of his said predecessor, would have no right to that property. I have earlier found it proved that the defendant, the present occupant of the Osenase stool, is not a member of the Aduana royal family, i.e. the family of Nana Obeng Akese and the plaintiff, the two persons who developed the farm into its present state.

Thirdly, if an occupant of a stool develops property of his family, i.e. develops a foodstuff farm into a cocoa farm, or improves an existing family house as distinct from farms or buildings belonging to the stool, the property as improved does not change its legal character as family [p.566] property to become stool property. Therefore having already found that the land was a family farm or farmstead when it was developed into a farm, even if the evidence has shown that its development was made by Nana Akese alone while he was on the stool, I would be bound to hold that the improvement made to it did not change its character from family property to that of stool property. In my opinion it would work great injustice to the family, contrary to natural justice and good conscience, to deprive the family of their ownership in such circumstances. The plaintiff has fully discharged the onus upon her, and she is entitled to succeed on her claim.

There will be judgment for the plaintiff for (1) declaration of her family's title to the land and farm as claimed, (2) an order that she should recover possession of the said farm forthwith, and (3) an order that the defendant should account to her for the mesne profits of the said land and farms. She will have her costs fixed at 75 guineas inclusive.


<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

W. Ofori Atta

Defendant / Respondent



(1) Abude v. Onano (1946) 12 W.A.C.A. 102

(2) Heyman v. Attipoe (1958) 3 W.A.L.R. 86

(3) Serwah v. Kesse (1959) Oll. C.L.L. 201; [1960] G.L.R. 227, S.C.

(4) Mensah v. S.C.O.A. & Boahene (1958) 3 W.A.L.R. 336

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