IMMOVABLE PROPERTY

ALLODIAL TITLE
GOLIGHTLY V. ASHRIFI

The Okaikor churu family were given the right to farm land at kokomlemle by the Gbese stool and had
been in possession of the land ever sine 1875. In 1942, the Atukpai family claiming to be owners of the
land sold it to purchasers who put up buildings on it. In 1943, the head of the Okaikor family brought an
action claiming inter alia declaration of title. Jackson [Link] ----

1. The plaintiffs and her family are possessory owners subject to the rights of the Ga, Gbese and
Korle stools who are recognized by customary law as being the allodial owners of that land.

2. The word caretaker does not mean one who looks after land for another but simply cannotes one
who has an interest in the land.

3. An outright alienation of or sale of the lands can only be effected with prior consent of the 3
stools, the Ga, Gbese and Korle stools and that publicity is necessary in such transactions, the
publicity being a safeguard provided by customary usage against the clandestine disposal of land
without the knowledge of the necessary parties.

4. The 3 stools cannot however alienate stool land without obtaining the consent and concurrence of
individuals or families who are lawfully in occupation of the land such as subjects of the Gbese
stool who are in occupation or strangers who have been properly granted some interest in the land.

KOTEI v. ASARE

Charles Danso who acquired a piece of land at Laterbiokorshie, Accra from the Alata stool of James town
by a conveyance dated 20th March, 1956 registered the conveyance in 1959.

The grant was made to him in a representative capacity for himself and members of his family. Mr. Danso,
without the knowledge and consent of the principal members of his family conveyed the land by a deed to
the plaintiff. When the plaintiff wnt to the land, she found the defendant in possession. The defendant had
bought the land from a Madam Adorkor who had acquired it from the sempe stool by a conveyance dated
4th October, 1952 and registered in 1958. Both the Alata and sempe stools are substools of the James Town
stool.

HELD –

1. There are 3 substools to the James Town stool: Alata, Sempe and Akumadjey. Amy area of
James Town stoll lands occupied exclusively or predominantly by the subjects or grantees of a
particular substool belongs to that substool.

2. On the evidence especially in relation to lands close to the one in dispute, the disputed land
belongs to the Sempe stool which as opposed to the Alata stool, had a better right to convey it.
Madam Adorkor, the defendant’s vendor, got a better title to the land than the plaintiff’s vendor,
Charles Danso.
 3. Besides, the conveyance to the defendant’s vendor was not only prior in time, but registered
earlier than the conveyance to the plaintiff’s vendor.

4. By virtue of the fact that the land was family property, its transfer by Charles Danso to the
plaintiff without the consent of the principal members of his family, is ineffective ie ineffective is
null and void ab initio.

FIAKLU v. ADJANI AND ANOR

By a conveyance dated 15th February, 1952, the Korle priest granted a portion of Kokomlemle land to S.
who by another conveyance dated 11th November, 1952 purported to transfer his title to the plaintiff. The
latter then went into possession until 1962 when the defendant relying on a deed of conveyance granted by
the same Korle priest but this time assented to by the Gbese and Ga stools commenced building on the
land. The plaintiff sued the defendant for a declaration of title to the land, damager for trespass and an
order for perpetual injunction he lost. On appeal it was held that his title was detective and invalid.

HELD—

Whatever customary practice, in law, the Korle priest is incompetent by himself and without the prior
consent of the Gbese and the Ga stools, to make valid absolute grants of Kokomlemle lands. Consequently,
in the absence of the requisite content, the conveyance executed by the Korle priest in favour of S. which
was the plaintiff’s root of title, passed no title whatsoever to him and was void ab initio.

GHASSOB AND GHASSOUB v. SASRAKU

The plaintiff respondent, a family company alleged that by customary law, a portion of stool land in
Ashanti was sold absolutely to the plaintiff family by the Chem-paw stool and that such sale was with the
knowledge and consent of the paramount stool of Kokofu as early as 1927. In 1956, the defendants-
appellants entered upon the plaintiffs land to fell trees in pursuance of a timber felling agreement between
them and the Kokofu stool in October 1953. The plaintiff family instituted this action, inter alia, for
declaration of title.

ISSUES—

- Whether stool land in Ashanti is saleable at all.

- If it is, whether the land in dispute has been sold to the plaintiff family with the knowledge and
consent of the co-defendant, the paramount stool.

HELD—

1. Ashanti land is saleable

2. The plaintiff family was in possession of the said land under an absolute sale by guaha from the
stool of Chempaw with the knowledge and consent of the paramount stool of the kokofu state.

3. Evidence showed that the plaintiff company had been in undisturbed possession for over 20 years,
that they had kept the boundaries cut and the boundary marks clear, and that they had paid neither
tribute nor tolls nor rent. It was known that the former Omanhene of Kokofu and the Odiduro of
Chempaw had collaborated in selling lands. Thus, the sale was with the knowledge and consent of
the paramount stool. In these circumstances, it was reasonable and permissible.
NGMATI v. ADETSIA AND ORS

The plaintiff and head of family, Albert Kojo Ngmati alleged that some 200 years earlier, the ancestors of
his family had occupied and farmed a portion of land at the foot of Krobo Hill belonging to the Yilo Krobo.
In accordance with customary law, this land became their property. The nine (9) defendants who were
Mingos (not Krobos) a few years earlier had entered upon the land and cultivated parts of it without the
family’s leave or licence. They averred that they had gone to live there about 50 years ago with the
permission of the Konor (Paramount chief) of Manya Krobo, the caretaker of Manya Krobo stool lands in
the Akuse area. They had been paying annual tolls to the Manya Krobo stool for farms they had made on
the land.

HELD—

Though in claims rising out of alleged trespass, it is most desirable that a plan should be put in, it is not
indispensable provided the oral evidence gives a clear picture of the land in question.

2. The plaintiff was not been stopped in his conduct, because he had not been shown to acquiesce in
the defendants exercising rights of ownership of his land in a manner adverse to his title.

3.
That a stool can acquire title only through its subjects, and as no Manya Krobo subject had
claimed the land as his ancestral property, the Manya Krobo stool could not resist the evidence of
a Yilo Krobo subject whose ancestors’ original cultivation of that land had been established.
KWAMI v. QUAYNOR

In 1897, the elders of the Osu Alata Quarter made a grant of land to William Addo Quaynor who remained
in undisputed possession of it until his death in 1933. After his death, some of his sons erected buildings
on part of the land. In March 1933, the Osu Mantse purported to grant some of that land orally to Nii Noye
Kwami. On the 4th March 1957, the Mantse confirmed by deed of conveyance this oral grant. The
defendant sent men with building sand to the land granted him. They were estopped by Emmanuel
Winfred addo Quaynor one of the sons and successors of the decased. In October, 1957, the plaintif sued
for declaration of title, damages for trespass and an injunction in the Land Court, Accra. Judgement was
given to the defendant and the plaintiff appealed. His counsel argued that Ollennu J. before trying the case
had knowledge of the facts of the Alata Quarter stool lands, its extent and claims of further extenstion.
This foreknowledge of the facts influenced his judgement and infringed the principle that “It is necessary,
not only that justice be done, but that it manifestly seem to be done”.

HELD—

1. That the Osu Mantse is the proper authority to grant Osu stool lands, ie land which is not the land
of the Quarter stool, nor “outskirt” land of a quarter;

2. That the head and elders of a Quarter stiool constitute the proper authority to grant a Quarter land;

3. That where unalienated “outskirt” land is in the charge of the head and elders of a Quarter, the
final decision whether or not to make a grant of such land rests with the Osu Mantse;

4. That although the osu Mantse may reject their advise, he cannot himself make a valid grant of
such land without prior consullation with them;

5. That the trial judge having found that the land in this case was a developing area or outskirt land,
contiguous to the Alata Quarter and forming part of it he was correct in holding that the grant by
the Quarter stool in 1897 was good and that that by the Osu stool in 1933 was bad.
 6. That before the decision of a judge can be impugned on the ground of possibility of bias, there
must be substantial ground in support of such possibility-bare possibility and mere suspicion are
not enough.

7. Ollennu J’s foreknowledge of the law relating to the Alata stool lands did not amount to
substantial possibility of bias, since the parties were not these parties, nor the land this land, nor
was he previously aware of the facts of this instant case.

AMATEI v. HAMMOND AND Anor.

A dispute arose between A, a subject of the mankralo stool and H as to the ownership of a building plot on
mankralo stool land at Osu. A therefore brought the instant action for a declaration of title or right of
occupation of the plot against H. In support of his claim, A testified inter alia, that he used to farm on a
portion of the land in dispute. When the area was later carved out into building plots as a result of a lay-out
carried out in the area, he obtained a grant of the disputed land as a gift from Y, who at that time was acting
mankralo and some stool elders. On the other hand, H testified that the disputed plot was part of 2 polots of
land customarily granted him by NA and his elders in 1965. At the time, NA was the mankralo of the Osu
Ashanti Blohum Quarter, Accra. However, as a result of differences between NA and the Gyasetse, the
latter declared him customarily destooled and instituted destoolment proceedings against him before the Ga
State Council that was how Y came to be the acting mankralo.

ISSUES—

1. Whether it was competent for elders of a stool to appoint an acting chief to deal with stool
matters where the substantive chief had not been declared customarily destooled and

2. Whether the customary law principle that a stool subject had an inherent right to occupy any
vacant stool land for farming should not be reviewed in order to reflect changes in modern
farming.

HELD—

1. From the evidence, no charges were formally preferred against the co-defendant whose
destoolment was accepted without question. Preferment of such charges was a customary law
requirement and failure to comply with them should be held to annul any adjudication made
in that regard. Therefore, the declaration made by the Gyasetse destooling the co-defendant
was contrary to the customary law practice of removing a chief, and of no effect. It followed
that the subsequent appointment of Y as acting mankralo was also void.

2. The grant of land made to A, the plaintiff, by Y without the participation of the co-defendant
who had been and still was the Osu Mankralo was void.

3. As between the plaintiff and the defendant, none of them had a valid grant of the disputed
land and they both lacked title. But the plaintiff on the facts of the case was in actual physical
possession of the land. His possession should therefore be protected. He acted in good faith
in his dealing with the disputed land and deserved protection under the Land Develoopment
(Protection of Purchasers) Act, 1960 (Act 2) and the Land Development (Protection of
Purchasers) (Accra Prescribed area) Instrument, 1961 (L. I 118).

4. Traditionally, there existed an inherent right of a stool-subject to occupy any vacant stool land
and that such occupation was deemed to be an implied grant by the stool and whilst inn
 occupation, the subject was entitled to alienate such interest as he acquired in the land and
was also entitled to its protection even against the stool.

5. Some exceptions should be made to reflect the present socio-economic and political changes.
Namely, where a stool subject requires land for farming (whether arable or animal
(husbandry) and engages himself in commercial mechanized farming, he should be required
to make an actual grant in the form of a lease. Also where an outskirt land in possession of a
subject is required for general development of the community such as for building a school,
lavatory, etc. or where as in this case, the area already in occupation of the plaintiff has been
carved into building plots for the use of the general community, and the caplete lay-out of the
area has changed, the subject’s prior occupation should give way subject of course to
preference being given him in the allocation of such plots if he requires one to build or in the
alternative, another suitable area given him in place of the one he lost and his consent should
not be a prerequisite to the stool taking over control of such an outskirt land. Thus, the action
for a declaration of title to or right of occupation to a piece of land granted, by the Osu
Mankralo stool.

HAMMOND v. ODOI A ND ANOR

In 1965, the plaintiff noticed that the defendant had started building operations or a plot of land at Kotobabi
in Accra which he alleged belonged to him. In his statement of claim, he averred that the land was
conveyed to him under a customary grant by the Nii. We family, the owners of the defendants in their
defence stated the land in 1949. that in accordance with the Supreme Court’s holding in Akwei v. Awuletey
that Osu rural lands, including the land in dispute belonged to the Osu stool and in compliance with a
publication in the local papers by the Osu Mantse Nii Dowuona IV they had the land indorsed by the latter
([Link]) in 1962. The deed was then registered in 1965. The plaintiff in his reply deposed that in response
to a similar publication, in 1964 by Nii Dowuona V he had had his original grant in 1949 confirmed in
1964.

HELD—

NYAASEMHWE v. AFIBIYESAN

The plaintiff inherited land in dispute from an Uncle and allowed B. the predecessor of the defendant to
farm on the land. On the death B. the defendant as successor continued to farm on the lands. The plaintiff
complained to the chief who found for him during an arbitration. But the defendant didn’t abide by the
results so the plaintiff sued the defendant for declation and damages for trespass.

HELD—

On appeal it was held that in the absence of a counterclaim by the defendant for a declaration of their
usufructuary interest, the plaintiff was entitled to a declaration in his favour in respect of his allocial title to
the disputed land and his reversionary rights as such allocial owner. However since he was not in exlusive
possession of the land usufructuary interest in the farm was now vested in possession of the defendants (his
successors). The action for damages for trespass consequently misconceived and should be dismissed.

BAIDOO v. OSEI AND OWUSU

The plaintiff, as a stool subject claimed to have acquired usufructuary rights/a determinable estate by being
the first to bring it under cultivation from virgin forest. The first defendant, a stool stranger acquire the
land through the 2nd defendant who made a grant to him in 1932 of the land. Subsequently, the stool
confirmed his lease in 1948. The second defendant was a stool subject who claimed to have acquired the
determirable estate in the same way as the plaintiff. The issue was essentially one of fact – between the
plaintiff and the second defendant, who had acquired the land first.

HELD—

1. Where a stool subject cultivates hitherto uncultivated stool land into cultivation and use, he
thereby acquires usufructuary rights by implied grant from the stool. This grant cannot be
alienated by the stool with out the consent express or implied of the subject.

2. The determinable estate acquired by the stool subject is alienable without the necessary for
consent by the stool so long as the alienation carries with it the obligation to recognize the
superior title of the stool and to perform the customary service due to the stool.

3. Where a subject-grantor conveys a determinable estate to a stool stronger, the right of the
stool to demand performance of customary services due from the stool stranger (where such
services have not been expressly or impliedly waived or commuted by agreement), may be
lost to the stool by the operation of the equitable doctrine of estoppel by acquience.

4. Evidence disclosed that the acts of ownership by the defendants had been intermittent and had
not been acquiesced to by the plaintiff. Thus, there was no question of estoppel operating
against the plaintiff.

JAMES TOWN (ALATA) STOOL AND Anor.v. SEMPE STOOL AND Anor

The James Town Stool has under it 3 quarters, namely Alata, Akumajay and Sempe. The issue was which
of the 2 – the Alata plots and Sempe Defendants stools – had allodial title to all quarter the lands
collectively known as the James Town Stool lands. Neither stool proved satisfactorily its claims to original
acquisition. However it was established by each stool that certain parts of the land in dispute were in the
occupation and use of their respective subjects. The trial judge, in relying on the test laid down in Akue v.
Ababio held that the claim by each stool must be proved as to which of them had the predominance of its
subjects on the land; each stool therefore would be the owner of the land so occupied.

HELD—

1. On appeal it was held that the history of James Town showed clearly that it was constituted
by the 3 forementioned quarters and that their property was vested in the James Town Mantse.
Each quarter could only claim ownership to an area which was in its exclusive possession. It
would therefore be wrong for any one of the 3 stools to claim for itself the allodial title to All
James Town Stool lands. The trial judge had used the right test in arriving at his conclusion.

SAAKA v. DAHALI (Nature of Subjects Interest in Skin Land).

S, a native of Dagomba, acquired a plot of land in Tamale customarily from the chief of tamale. He erected
a building on it in 1920. Subsequently, he allowed a number of tenants to live in the house, one of whom
was Y.S, died in 1948 by which time Y, was living with D, her daughter in his house. He was survived by
the plaintiff, his daughter and sole successor. In 1979, the plaintiff who had been living in Takoradi
returned to Tamale. After a disagreement concerning the house, the plaintiff instituted an action for, inter
alia, declaration to and recovery of possession of the house from the defendant the grand daughter of Y
who had also moved in to the house.

HELD—
 1. Long possession per se did not avail the possessor against a claimant, if the claimant could
show that he drived title from the true owner or was himself the true owner. Mother Y, and
daughter D held interests as licensees and under customary law, subject to the provisions of
the limitation decree 1975 (NRCD 54) licensees did not by virtue of their long use per se
acquire an interest in the property which would entitle them to deprive the owner or his
successor, the plaintiff, of their ownership.

2. On the evidence, the stool lands (Northern Territories) Instrument 1963 (EI 109), passed
under the Administration lands Act 1962 (Act 123) 5 7 cane into force 43 years after the land
had been allotted and the buildings erected. And as the fundamental rule applicable to all
statutes and statutory instruments was that prima facie they were prospective or unless by
necessary implication they had retrospective operation, they did not extinguish rights and
obligations which had already crystalised. Therefore, it couldnot affect rights S had acquired
in the skin land before its promulgation.

3. Since on the evidence, D had obtained the lease of the plot in her own name by swearing
falsely that she was the next of kin of S. she was in the position of a constructive trustee who
had obtained a lease in breach of trust in his or her own name. On application of the rule of
constructive trust, (based on public policy), the def could not profit from her legal ownership
in the circumstance.

AKWEI AND ORS v. AWULETEY AND ORS

The plaintiff a subject of Osu brought this action for declaration of title to a piece of land farming part of a
larger area knwown as the “Maamobi-Kotobabi-Dzorwulu” lands which again were part of the Osu stool
rural lands. The Osu Mantse claimed a declaration that the land in dispute was part of the Osu Stool lands
and that the plaintiff by virtue of the deed of gift had acquired a good title. The Osu Mankralo claimed that
the ladn in dispute belonged to the Osu mankralo stool and in his statement of defence averred that the
“Maamobi-Kotobabi-Dzorwulu” lands had been settle ujpon exclusively by the people of the Ashanti
Blohum quarter under the Osu Mankralo stool and that any grant of a piece of those lands required his
consent and those of his elders.

HELD—

1. The Osu Mantse is the proper person entitled to sue and be sued in respect of lands title to which
is vested in the Osu stool.

2. The Osu Mantse is the proper authority to grant Osu stool lands, subject to the qualification that he
cannot make a valid grant of quarter and outskirt lands attached to a quarter without prior
consultation with the head and elders of the quarter involved.

3. The land in dispute was Osu stool rural land of the Ashanti Blohum quarter which the Osu Mantse
together with his elders and the quarter headmen could both grant.

OBLEE v. ARMAH AND AFFIPONG

In this action for a declaration of title to land, the parties were subject-members of the same stool. The land
in dispute which was Accra outskirt land, was part of an area which had at one time been compulsorily
acquired under the Accra Town (lands) Ordinance of 1951 and had subsequently been released. The grant
to the plaintiff had been made by the stool authorities some 40 years before the action and he had since
exercised acts of possession-farming and building – for many years. The grant to the defs had been
subsequent in time to the grant of the plaintiff. It had also been made after the compulsory acquisition but
prior to its release. The defs further alleged that it was a customary incident of a grant of land made by a
stool to a subject that the land so granted may be used for farming only and that by building on the land, the
plaintiff had suffered forfeiture, the land reverting to the stool-grantor.

HELD—

1. A stool subject in need of land does not generally speaking, require express permission from
his stool to occupy vacant stool land. HOWEVER, on occasion, demarcation by the stool of
an area of land required by a stool-subject may be necessary, where other land in the vicinity
is already in occupation, in order that the boundaries of the respective occupiers shall be
satisfactorily defined.

2. Where a stool subject is granted land for farming, he is not thereafter restricted to farming in
his use of the land.

3. The general rule that a stool-subject does not require the consent of his stool, when seeking to
occupy vacant stool land gives way when the land in question is outskirt land of an urban area
which is ready for development. To ensure that such land is properly administered in the
interest of all stool-subjects, a subject of the stool may only take possession of such land upon
express grant by the stool. In spite of this, the incidents attached to land so granted do not
differ from those in respect of land taken into possession where consent of the stool is not
required.

4. A grant by a stool of stool land in the possession of a stool-subject without the consent and
concurrence of such subject is a nullity.

5. Although the land concerned had been compulsorily acquired by statutory authority, at the
time of the commencement of the suit, the had not yet divested itself of the land and the
plaintiff, who was in possession and who had never claimed compensation for the land, was
entitled to maintain his action against all else save the government. Therefore, the deed of
conveyance which transferred the usufructuary title of the 2nd def to the 1st def, which was
later transferred to the plaintiff was valid.

THE USUFRUCT

TOTAL OIL PRODUCTS LTD v. OBENG AND MANU

The land, the subject matter of this suit is a portion of the Tafo stool lands under the Akim Abuakwa
paramount stool. The 1st def, a stool-stranger purchased the land from the 2nd def a subject of the Akim
Abuakwa stool. The 2nd def then demised the land to the plaintiff-co. for a term of years and placed them
in possession. Before the execution of the lease, the plaintiff co- paid money to the 1 st def as rents in
advance. This money was then used to pay the 2nd def the purchase price of the land and the buildings
thereon. The plaintiff co. alleged that they were ejected from the land by the Tafo stool and upon the 1 st
def’s failure to take steps to put them back in possession, they had to take a lease of the same land from the
Tafo stool.

HELD—

1. A stool-subject forfeits his usufructuary title to stool land in his possession if he denies the title of
the stool.
 2. The only way a subject can deny the title of his stool is where he claims that the land he occupies
belongs to a stool other than the one to which he is a subject, and that he holds the land as a
grantee of that other stool. The 2nd def has not made any such claim. Thus he cannot be said to
have ever forfeited his title to the land.

3. A lease by a stool subject of land in his possession does not constitute an alienation of his
usufructuary title in the land. He does not therefore require the consent of the stool. As a
stranger-tranferee is in the same position as a subject-transferor, the grant by the 1st def to the
plaintiff co. did not require the consent of the stool. It is valid in spite of the absence of such
consent.

4. The grant by the Tafo stool to the plaintiffs is null and void because the stool purported to grant
the land without the consent of the possessor.

5. A fee simple estate is unknown in customary land law. But a conveyance which purports to
convey the fee simple in land is not thereby void. It has the effect of transferring the highest estate
or interest which the transferor has in the land.

BUDU II v. CAESAR AND ORS.

In October 1955, the plaintiff, Nana Kofi Budu by writ of summons issued in the Native Court “B” of
Akwamu against Francis M.K. Caesar commenced proceedings claiming declaration of title to an area of
land 2 square miles in extent, damages for trespass to the said land and injunction. He was joined by three
(3) other defendants as persons likely to be affected by any decision in respect of the land claimed by Nana
Budu. After a number of appeals and transfers, it was held that:

HELD—

1. After stool land has been alienated, the stools concurrence in the resale of the land is not
essential to a valid alienation to a 3rd party by the purchaser from the stool.

2. By customary law, a subject of the stool is entitled, either by express or implied grant from
the stool to occupy any vacant portion of the stool land. Upon occupation, he becomes the
owner of the possessory title and the land descends (after his death intestate) to his family.
All that is due from him to the stool are the usual customary services, but no tolls or tribute.

3. The description of land in a Certificate of Purchase is not always conclusive

4. The defendants were not estopped by failing to declare ownership in compliance with a
resolution of the Akwamu State Council, for there was no evidence that the resolution in
question was ever given the force of law under sec. 30 (2) or sec. 31(2) of the Native
Authority (Colony) Ordinance, or was there evidence of publication it.

BRUCE v. QUARNOR and Ors

This case related to disputed lands at West Korle Gonno, Chemunaa, Accra belonging to the James Town
stool lands. The plaintiff, the Rev. Ernest Bruce, claimed the lands in virtue of a grant made to him in
accordance with customary law over 30 years previously by the stool of James Town. Plaintiff pleaded that
he went into occupation immediately and was still in such occupation when the 3 defendants entered upon
portions of the land. He further pleaded that in 1956, he had obtained a Deed of Conveyance from the then
occupant of the James Town stool. The 1st defendant, claimed the right to occupy a portion of the land by
reason of a grant made to her by her uncle Joseph Danso and also because of a Deed of Gift executed in her
favour in September, 1954 confirming the grant made by her uncle. The 2nd and 3rd defendants also
claimed rights by grants from the James Town Stool to occupy portions of the land on which they were
alleged to have trespassed on.

HELD—

1. By native custom, grant of land implies an undertaking by the grantor to ensure good title to the
grantee. Therefore it is the grantors’ duty to litigate in order to prove that the title he purported to
grant is valid.

2. Once land has been granted it cannot be taken away from the grantee and another piece given to
him without his consent. A subsequent purported grantees’ entry on the land would be a trespass.

3. Conveyance of land made in accordance with customary law is effective as from the moment it is
made. A deed subsequently executed by the grantor for the grantee may add to, but cannot
subtract from the effect if the grant already made by customary law.

4. A stool subject is entitled by customary law to occupy any vanct portion of the stool’s land either
upon actual or implied grant. Plaintiff was farming the land prior to 1923 and his possession and
occupation of the land as a stool-subject constituted good little, whether or not it was in virtue of
an actual grant.

NORQUAYE-TETTEH v. MALM (Consolidated)

In January 1926, Nii Abose Okai, the caretaker of the Abose Okai lands on behalf of the Akumadjaye stool
granted a portion of those lands to Henerike C. Malm who in turn conveyed it to his daughters, Anna and
Louisa by deed of gift dated 7th December, 1957. By deeds of conveyance in June and July 1957
respectively, the Mantse of Akumadjaye, acting on behalf of the Akumadjaye stool granted the lands in
dispute to the plaintiffs, who were brothers. The latter erected a borbed wire fonce round their combined
plots.

HELD—

1. That by customary law, the existence of economic trees (such as the mango) on stool land is
prima facie evidence of possession of the land by a subject or a grantee, and the stool cannot
make a valid grant of land on which tree such as those exist.

2. that one of the requirements of customary law relating to a grant of land is that the grant
should be given wide publicity in the locality; neighbouring owners should be invited to be
present at the demarcation.

3. that each of the plaintiffs having failed to prove that the portion of land which he claimed was
vacant at the time of its purported conveyance to him, the claim of each must fail.

(consolidated)
ATTA PANNIN AND Anor v. NANA ASANI II

Some 300 years ago, the appellant stool permitted the respondent stool and its subjects to occupy the
Bedlum land, its stool land subject to the payment of annual tributes and the performance of customary
service. In 1961, Adunua-Bassman J. (as he then was) held that the appellants were overlords of the
respondent stool. However, he conferred possessory title of the land in the respondent stool. In the first of
these consolidated cases the respondents (of the 1961 suit) sought a declaration that subject to it paying
annual tribute to the appellants, its subjects were entitled to live on the land. The appellants claimed that
without their knowledge or consent, the respondent had either sold or leased the land to strangers.
Therefore, they were counterclaiming, inter alia for possession and account for all moneys received by the
respondent from strangers on the land. In answer, the respondent claimed the 1961 judgement as res
judicata. Ion the second suit a stranger-farmer driving title from the respondent stool was ordered by
Charles J in 1962 to attorn tenants to the appellants but he had refused to comply with the judgement. The
trial judge in his judgement found for the respondent stool. The issues were the nature of the grant made to
the respondent’s ancestors, and the effect of the 1961 and 1962 judgements.

HELD—

1. Long possession and occupation of the land by the respondent stool and its subjects, subject to
the pay ment of annual tributes to the appellants as over-lords of the land conferred a
usufructuary title on the respondent and not a mere occupational title. The respondent stool
was therefore entitled to alienate the land to its tenants and strangers without the consent of
the overlords subject to the obligation to provide commucable customary services. So, a
subsequent refusal to provide the services old invoke customary sanctions.

2. The plea of res judicata was applicable not only to the substantial issue but all issues that
impinged on the issue.

MANSU v. ABBOYE AND Anor.

The plaintiff-appellant (hereafter called the plaintiff) by his writ sought a declaration of title to his
family’s land at Yarbiw in the Western Region. He pleaded that his ancestors had reduced the virgin
forest into cultivation and had been in uninterrupted occupation of it until the trespass complained of.

HELD—

1. Some of the main incidents of the usufructuary interest are that the usufructuary has exclusive
possession and enjoyment of his land. He cannot be capriciously divested of that interest by the
stool, neither can his land be alienated to any other person by without prior consent and
concurrence of the usufructuary. Thus the usufructuary interest is potentially perpetual. So that
apart from the statutory powers for expropriation or acquisition as provided the State Lands Act,
1962 (Amendment) Decree, 1968 (N.L.C.D 234), the interest of the usufructuary can be
determined only by his consent, abandonment or upon failure of his successors.

2. All there conditions are absent in the instant case. There had never been any compulsory
acquisition of any land. Therefore the plaintiff had not at any time lost his usufructuary title to the
disputed land. He still was the usufructuary owner of it.

ADJEI v. GRUMAH

The plaintiff, a stranger-farmer, who was chairman of the Min Town Board on application and after
payment of the requisite customary fees was granted a brack of virgin forest to cultivate by the Minhene in
consideration of his services to the town. He planted cocoa trees on part of the land. He alleged that the
defendant had destroyed 100 of the trees. The latter in his defence contended that he had purchased the
land in dispute from the Minhene. There had been no cocoa trees to destroy as the land had been virgin
forest. The Minhene in giving evidence for the defendant claimed that the land which he and his elders had
sold to the defendant was virgin forest within the larger area they had earlier granted to A. Furthermore, he
asserted that for about 20 years after the plaintiff acquired the land, he had cultivated only a small portion.
And that in accordance with a local custom, the stool had the right to re-enter a stool land which had not
been acquired by purchase whenever there was failure to develop it within a reasonable time after the land
had been acquired. Thus was in keeping had done by selling the land to the defendant. Judgement was
given for the plaintiff and on appeal it was.

HELD—

1. that re-entry of virgin forest stool land was distinguishable from forfeiture of said land from a
subject in occupation. Forfeiture is regarded as an extreme punishment for misconduct or
denial of allegiance to the stool. Before the latter occurred the chief and his elders might at
their discretion may hold an inquiry to offer the occupier an opportunity to state his case. Re-
entry, on the other hand, was a realistic customary approach to the development of land: it
ensured development within a reasonable period after the grant of land.

2. In the present case, the stranger-farmer had been treated as a subject of the stool so he must be
presumed to know what the local custom of re-entry of stool land was. Although notice of re-
entry of virgin stool land might be desirable, failure to do so could not defeat the customary
right of the stool to re-enter and re-allocate virgin forest land where there has been a default in
its development. It is unreasonable to allow large tracts of land to lie idle while stool subjects
and others were seeking land to develop, or cultivate.

3. The principle of customary law that a subject of the stool acquired a

determinable/usufructuary title in the stool land being occupied by him did not apply to a
virgin forest on which he expended no labour. The principle was an equitable one rooted in
actual possession. If created a burden on the absolute title of the stool and vested the subject
in occupation with possessory title that prevailed even against the stool itself. The very nature
of that possessory title precluded any extension of the principle to cover areas of virgin forest
land not reduced to actual possession.

ONANO v. MENSAH AND Ors.

The co-defendant-appellant was the head of one of the quarters of La. He granted portions of La stool land
to the defendants-appellants who constructed buildings on them. The La-Mantse the plaintiff-respondent)
and his councilors requested the defendant-appellants to explain how they acquired the land, which they
refused to do. The La-Mantse sued for damages for trespass and an injunction. The trial Native Court gave
judgement for the La Mantse on the ground that he should have been informed when the land was being
granted by the head of the quarter. On appeal the native desire was upheld for the reason that to ensure
uniformity of action in relation to stool lands, to establish good records in all dealings and to prevent
unnecessary litigation, it is absolutely essential that the stool-occupant and his councillors should be
informed of all dealings in and grants of the stool lands.
BUOR v. BEKOE AND Aor

The plaintiff, seeking to redeem a plot of stool land from the 3rd defendant claimed that the land had been
pleadged to him by his predecessor who had held for a determinable estate and had pledged for 1 st
defendant. The 3rd defendant asserted that the original transaction had been outright sale between the
plaintiff’s predece and the 2nd defendant from whom the 3rd defendant had bought the land. Judgement was
given for the plaintiff and on appeal it was held that

HELD—

ATTAH.V. ESSON

The defendant family were landlords of a large piece of land on which the plaintiff family had cultivated a
large number of palm trees. The defendants entered the land and felled many of the trees. The plaintiff
family sued for damages for trespass and perpetual injunction. Councel for the defendants contended that
the defendants were entitled (according to customary law, to enter the land at any time and enjoy the fruits,
whether or not the palm trees were already on the land before the tenancy or were planted after the creation
of the tenancy by the tenants. Judgement was given in favour of the plaintiff family and was held on
appeal:

HELD—

1. Having regard to the unreasonableness of the principle under which the defendants acted and
how outdated it had become, the general damages awarded against the defendants was proper.

2. The customary law rule that except by special arrangement, the landlord was entitled to enjoy
the fruits of economic trees such as palm or kola trees which already existed on the land had
not today been shown to be unreasonable and must therefore be accepted as still governing the
relationship of customary landlord and tenant.

3. The plaintiff’s family in their capacity as tenants in perpetuity might justifiably be described
as the owners of the usufructuary title, and thereby entitled to enjoy the fruits of economic
trees ALREADY on the land.

MENSAH v. GHANA COMMERCIAL BANK

This was an action to a declaration of title between the plaintiff and the 2nd defendant of Teshie stool land.
The plaintiff claimed that the land in dispute had been the self acquired property of her late husband which
had been conveyed to him by deed of gift in 1954 by the occupant of the Teshie stool. The plaintiff’s
husband had charged the property to the 1st def bank to secure a loan. The plaintiff had discharged the
balance of the mortgage debt. The def, who was a brother of the plaintiff’s late husband denied the validity
of the deed, and asserted that the land had belonged to his late father and was family property. It appeared,
in evidence, that the person excuting the deed of gift as Teshie Mantse had been previously destooled.
None of the signatories to the deed were those whose signatures would have been expected on the deed.
Boundary pillars on the land were those of the 2nd def’s late father.

HELD—

1. If a stool-subject, to whom a grant of a determinable or other estate has been made in a

customary manner by the authorities of a quarter so desires he may request to be supplied
with a deed of authentification of his grant. Such a deed will be executed by the stool-holder,
supported by the appropriate stool authorities. In the Teshie area, appropriate authorities are
the Mankralo, Ayiku Wulomo and Shikitele (but without prejudice to the other office-holders
who may be authorized to join in the execution of a deed).

2. Such a deed, authenticating a prior grant made by customary procedure by a quarter, will be
voidable as being made without authority, if the stool authorities have not obtained the
concurrence of the authorities of the quarter concerned.

3. A conveyance of stool or family land which is not executed by the stool occupant or family
head, as the case may be, is void aa initio.

4. Although the 2nd def knew of the existence of the grant of 1954, knowledge without more
does not constitute acquiescence. There had been no holding out of the plaintiff as owner of
the land by the 2nd def and the family and the latter were therefore not estopped from denying
the plaintiff’s title.
 5. On the evidence, the land had belonged to the 2nd def’s father and, in the absence of evidence
to the contrary, had become family property on his death. The house appeared also to have
been build by the plaintiff’s husband WITH family, as opposed to self acquired money and
thus would also be considered family property. But as the plaintiff’s husband had raised
money for his own purposes on the security of the property, this was really a debt due from
his estate and not his family.

6. By the custom of Teshie, customary grants of land are made to stool-subjects by the
authorities of the quarter within which the land concerned is confined. The duty of the
authorities to account for the portion of customary services and returns made by a stool
subject to the stool.

DONKOR v. ASARE AND ORS.

In 1952, the defs applied to the Akwapim stool for a grant of land for development into a football field. As
the Oyoko family was in possession of the said land, the stool approached the family in accordance with
customary law and the family made a direct grant to them, under an agreement that the defs were to
develop the land and share the proceeds accruing from the land with the family. The defs then paid
annually, one third of the “gate-money” to the family. In 1956, a member of the Oyoko family without the
consent and concurrence of the head and principal members of the family purported to sell the land to
Opanyin Kwadjo Donkor (the plaintiff). Having unsuccessfully attempted to dispossess the defs, the
plaintiff in 1957 approached the family at Mamfe to buy the land. The Oyoko family gave the defs notice
to quit. The latter refused to and the plaintiff brought the action in the Akwapim Native Court “A”.

HELD—

The essential requirements of a sale of land under customary law include identification of the area sold,
placing the purchaser in possession in the presence of adjoining land owners and the performance on the
land of the Guaha custom. As the plaintiff had failed to prove these matters, the trial court should have
dismissed the case without considering the defence.

The agreement between the Oyoko family and the defendants gave the defendants a right in town land of
the same nature as abusa or abumim (abetsem) tenancy of agricultural land, which cannot be determined on
short notice except where a tenant denies the title of the grantor.

The notice to quit given by the family after the “sale” of the land to the plaintiff was bad.

SASRAKU v. DAVID AND ORS.

The plaintiff, as head and representative of a family company sued claiming an injunction to prevent the
defendants, the Naja David Sawmill Co. from trespassing on 3 pieces of land belonging to the plaintiff-co.
by felling timber. The plaintiff-co had joined togther to purchase land from the Chempaw stool which
serves the paramount stool of Kokofu. They alleged that the purchase of the land was by Guaha; that the
performance of this native custom was evidenced by documents which by themselves were void as
concessions under the concessions ordinance. Never theless, these documents were evidence of a
transaction by Native Custom. The Chempaw stool did not dispute that the sales took place. The def
sawmill co. relied on a felling agreement granted to them by Paramount stool Kokofu (as co-def). The
latter alleged that land was (a) not alienable by sale in Ashanti and (b) that if there had been any sale by the
Chempaw stool, it was a sale made without the knowledge and consent of the Paramount stool. The trial
judge held that

1. (and was saleable in Ashanti, particularly in the Divisions or states where the Asantehene did
not claim lands qua Kumasi lands.
2. The plaintiffs were in possession of the said land as owners by right of purchase under an
absolute sale by Guaha from the Chempaw Stool with the knowledge and consent of the
Paramount stool. After 2 appeals, it was held by the Privy Council that the above holdings of
the trial judge were correct. It was further held that:

1. the estate passing on a sale, as between natives of Stool Lands is not an unqualified
ownership, but a possesory right to enjoy the land and the usufruct thereof.

2. what the trial-Judge meant by a declaration of title was that as long as the plaintiff-family did
not become extinct, or desert the land, they were entitled to remain on the land and to have the
same protection as if they were in fact owners.

AWUAH v. ADUTUTU

The plaintiff obtained a grant of forest land from the 1st def as caretaker on behalf of the latter’s stool
for cultivation. The plaintiff paid ¢220 to the 1st def and received a receipt for the money. The
plaintiff then entered into possession and cultivated a considerable portion of the land granted, leaving
a small area for future cultivation. The plaintiff later gave that area to someone else to cultivate on
“abunu” tenancy. When the latter had cleared the land, the 1 st def entered the land cultivated a portion
of the land and gave the remaining bit to the 2nd def with the explanation that the plaintiff had gone
beyond the limits of the land granted him. Consequently, he, the 1 st def was entitled to reclaim the
disputed portion and do as he like with it. Thus an attempt was made to settle the matter and a
curveyor was hired to make a plan of the land. The plaintiff and the 1st def were to each pay half of the
surveyors fees. Failing to agree on the surveyor’s plan, the plaintiff brought an action in the District
Court Grade I Goaso, in Brong Ahafo for a declaration of title to land, damages for trespass and an
order for perpetual injunction.

HELD—

1. The plaintiff had not exceeded the land originally granted to him. The plaintiff in his evidence
gave the names of his boundary owners and very one of the eight (8) names agreed with those
on the plan of the surveyor.

2. Per Abban JSC—The usufructuary title is a specie of ownership co-existent and simultaneous
with the stool’s absolute ownership.

3. The usufructuary is regarded as the owner of the area of land reduced to his possession. He can
alienate volundarily to a fellow subject, or involuntarily to a judgement creditor without the
prior consent of the stool. There is practically no limitation over his right to alienate that
usufructuary title. So long as he recognized the absolute title of the stool, that usufructuary title
could only be determined on an express abandonment or failure of his heirs. The stool cannot
divest the usufructuary of his title by alienating it to another without the consent and
concurrence of the usufructuary.

4. The usufructuary title which a stranger-grantee (like the plaintiff) acquires places the stranger-
grantee in the same position as the stool-subject, except that the title of the former is limited to
a well defined area demarcated to him whereas the stool-subject is not so rationed in the
amount of the forest land he may occupy.

5. The receipt given by the plaintiff to the 1st def was invalid and consequently voidable because
according to section 24 of the Land Registry Act 1962 (Act 122) all documents relating to land
 must be registered in order to have any legal effect at all. If such document is not registered, it
is invalid and so VOIDABLE. It becomes valid only when registered.

YOGUO AND Anor. v. AGYEKUM AND Ors.

TRANSFER OF INTERESTS IN LAND.

The plaintiffs, two children of B, deceased, claimed against the defs, a declaration of title to a house at
Yonso in Ashanti. They alleged that the house was built by their deceased father on land acquired by him
from the Yonso stool and that their father in his life time gifted the house to them for which they gave
aseda in accordance with customary law in the presence of witnesses. The defs, members of the same
family as B pleaded that the house had been buildt jointly by B and his elder brother A, also deceased, on
family land. The defs counter claimed for a declaration that the house was family property.
HELD
The plaintiffs had failed to prove that the land on which the house was built was acquired by the Yonso
stool by not calling any of the stool elders to corroborate their evidence.

By customary law, where a child or ward worked with his father or guardian, he did not become owner
with the father or guardian of the income of their joint Labour; whatever the joint effort, it belonged
exclusively to the father or guardian. Thus, as A and B kept a joint purse, whatever was acquired was
family property and unless partitioned during their lifetime, became full family property on their death so it
was with the house in the instant case – it was family property.
The plaintiffs failed to prove all the essential ingredients of a valid customary gift of the house to them
namely

(a) ceremony of transfer of property in the house to the plaintiffs.

(b) publication to the living and the dead that ownership in the house had as from that
date moved from the donor to the plaintiff.

(c) Pouring of libation and

(d) Aseda indicating acceptance of a gift of land.

OHIMEM v. ADJEI

PRINCIPLES

1. By customary law, a stool has no right to grant land in the occupation of a subject to anyone –
subject or stranger – without the prior consent and concurrence of the subject in possession.
Further, the subject can successfully maintain an action in defence of his determinable estate
in the land against the world at large, including the grantor-stool.

2. Where an individual or family fails to use or otherwise exercise rights of ownership of land
over which he or they have possessed a determinable title for upwards of 10 years, he or they
are deemed to have abandoned the land.

3. A stool subject has a right to occupy and use free of charge any vacant communal land.

4. The stool holds the absolute title in the land as trustee for and on behalf of the subject, and the
subjects are entitled to the beneficial interest or usufruct thereof and have to serve the stool.
 5. The usufructuary MAY NOT dispose of the stool’s absolute ownership in his land to strangers
WITHOUT the consent and concurrence of the stool.

6. The individual or family may assign or dispose of his interest in the land to another subject of
the stool without the consent of the stool.

CUSTOMARY LAW

LICENSES AND TENANCIES

ATTA PANYIN AND Anor v. ASANI II

(In 1943, the stool-occupant prior to the co-plaintiff, the omanhene of Breman – Asikuma, instituted an
action against the Omanhene of Breman – Esiam for declaration of title to the Dedum land. Judgement was
given in favour of the former. During the case, the predescessor of the def representing the Bedum stool,
which is in possession of the disputed land gave for the Breman – Asikuma, confirming that the land was
for them.) In this case, the plaintiff, the Ewumaso stool was a sub-stool of the Breman-Asikuma stool and,
caretaker of the Bedum land. In the late 1950’s the Bedum stool began to allocate portions of the land to
strangers without reference to the plaintiff (the Ewumaso stool) or the co-plaintiff (the Breman-Asikuma
stool), claiming that it was the owner of the land. The plaintiff instituted the present action for declaration
of title for the land, recovery of possession and an injunction. The def, the Omanhene of Breman – Esiam
also claimed for title relying on settlement on the land in their own right from time immemorial, or
alternatively, on a gift of the plaintiff confirmed by a document dated 23rd April 1943. The said document
was executed by the representatives of the plaintiff and the co-plaintiff stools during the 1943 litigation,
and purported to make an absolute gift of the land to the def stool.

HELD—

The document of 1943 is not enough to make a valid customary gift of the land to the def stool. For such a
gift to be valid, it must be made by the chiefs of the plaintiff and co-plaintiff stools in public in the presence
of witnesses with the concurrence of the elders of the respective stools, and must be attended with all the
customary rites and ceremonies incidental to the formal conveyance or transfer of land. However, the
document misled the def stool into believing that it had become the absolute owner by gift. The denial of
the title of the plaintiff is therefore excusable, and does not otherwise render its usufructuary title liable to
forfeiture.

The claim for possession and an injunction is misconceived because, where an owner of land makes a
customary grant to, and thereby confers a possessory or usufructuary title on another, he, the allodial owner
cannot interfere with the possession of the usufructuary owner so long as the latter acknowledges the title
of the former.

The def stool is estopped by conduct from denying the title of the plaintiff, because they (1) gave evidence
for the co-def stool in the prior litigation (2) they stood by while the title to the land was being litigated by
the co-def and the Breman-Esiam stool.

OMANHENE OF SEFWI-WIAWSO v. DONKOR

The def’s father obtained a piece of land for farming from the plaintiff, the Sefwi-Wiaso Paramount stool
for which he paid an annual customary fee. On his death, the def as customary successor to his late father
paid an amount to the plaintiff as homage. The plaintiff then required the def to enter into a fresh
agreement to pay a much higher sum than his father had paid as annual tribute and subsequently, brought
an action to enforce this new agreement in the local court. Judgement was given for the def and the
plaintiff appealed.

HELD—(dismissing appeal)

Only a limited class of persons may represent the stool in litigation. This class includes, the linguist, an
elder or an office holder. It does not however include the clerk of a traditional council.

The purported variation of the original contract was contrary to custom and offended against the principles
of sanctity of contract.

By the Administration of Estates Act 1961 section 1 (1), on the death of the def’s predecessor, the property
became vested in the def as customary successor by descent. There was thus no break in the sees in and the
land was not given to the def as farmed land.

The Rents (stabilization) Act, 1962 as amended by the Rents (Stabilization) (Amendment) Act, 1963 (Act
168) applied to uncultivated virgin forest which this land was when originally granted to the def’s
predecessor in title.

The plaintiff’s action was illegal because it offended against section 17 of the administration of stool lands
Act 1962 where by only the Minister responsible for lands can bring an action to enforce payment of stool
revenue. Therefore, the traditional council had no locus standi to mount the action.

CUSTOMARY LAW LICENSES AND TENANCIES

FORI v. AYIREBI

The plaintiff stool sued the defs, a syndicate of 15 farmers, in the High Court for a declaration of title to a
piece of land, damages for trespass, accounts and an injunction. The Banka and Ofoase stools on their own
applications joined as co-defendants, on the ground that a portion of the land in dispute belonged to each of
the 2 stools. Among the evidence tendered in support of the plaintiff’s case was a validated decision given
in 1930 under the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation)
Ordinance, Cap 144 (1951) Rev), which inter alia, fixed the Den river as the Western boundary of the
Banka Stool land. It was argued further that this validated decision was binding on the Banka Stool and
operated as an estoppel against them such that they could not now dispute the boundary demarcated by the
decision. It was also submitted that a proper interpretation of the concessions Ordinance, Cap 136 (1951
Rev), s 32 (1) and (2) equally estopped the Ofoase Stool by conducted from challenging the right of the
plaintiff stool as landlords. The trial judge found in favour of the syndicate. On appeal, the Supreme Court

HELD—

1. Although in equity, estoppel must be mutual, a stranger to a former suit could successfully
plead in a later suit to which he was a party that his opponent was estopped from denying
what he had sworn to in the previous suit to obtain a declaration in his favour.

FANYIE AND Ors v. LAMPTEY (1988)

The plaintiff-tenants sued the defendant land-lord in the High Court for a declaration that they were abusa
tenants and an order compelling the def to enter into a written agreement to that effect. The plaintiffs
pleaded and the def admitted that the lord which he gave out to the plaintiffs was forest land and that the
plaintiffs expended their own energy resources in cultivating the land. Those particulars were incidents of
an abusa tenancy but it was the case for the def that the plaintiffs had agreed to hold the land as abunu
tenants and were bound by that agreement. The trial judge held that the burden of proof was on the
plaintiffs and that they had failed to discharge it.

ISSUES—Whether:

1. the burden of proof was on the plaintiffs or on the defs and

2. an agreement of the kind claimed by the def was enforceable

HELD (allowing appeal—

A plaintiff who alleged that he was an abusa tenant had the burden of persuasion with regard to the fact that
the land was uncultivated (ie a forest) and that he made the farm with his own funds and labour. In the
instant case, the burden was on the def because of his admissions in his evidence. In this state of things, the
burden of producing evidence was on the def who asserted that the tenancy agreed on was not abusa but
rather abunu the characteristics of which were quite different. The def however failed to discharge the
burden of proof.

In so far as the transaction between the parties was a customary one, any departure from custom in a
material respect would render the agreement unenforceable under customary law. Consequently, inspite of
the abunu tenancy agreement between the parties, such an agreement being on the admitted facts, contrary
to custom, would be UNENFORCEABLE.

LAMPTEY alias NKPA v. FANYIE AND Ors. (1989)

The facts of this case are the same as that on the previous page ie FANYIE v. LAMPTEY. An appeal by
the def in that case from the decision of the High Court in the aforementioned case, the Supreme Court in a
majority decision field that the evidence led by the plaintiffs and their witness in that case established that
they had been dealing with the def (also in that case) on the basis of abunu tenancies.

HELD (allowing appeal) – (NOTE – the titles of the parties remain the same as in previous case.)

1. Generally, it was the duty of the plaintiff to prove his case. However, when on a particular
issue, he had led some evidence, then the burden would shift to the def to lead sufficient
evidence to tip the scale in his favour. The def would only win if he was able to do that. In
the instant case, sue to the plaintiff’s assertion about the tenancy being abusa and Not abunu,
the burden was on the plaintiffs to prove abusa. That burden never shifted. The evidence on
the whole proved that the agreement between the parties was abunu not abusa.

2. A landlord would not admit a tenant farmer on to his land in the country without first
discussing and settling the terms and conditions of entry. ABUSA AND ABUNU were mere
terms ie names given to any arrangement between parties whereby in the case of ABUSA, one
side got (1/3) one third and the other got (2/3) two thirds of a subject matter; whilst in the case
of ABUNU, the subject matter was split equally between the parties. It did not matter what
the subject matter was or which party got which share. On application to farm tenancies, the
subject matter might be either the harvest or its cash value; or the physical farm itself at an
agreed stage of development such as when the crops had been planted or were mature or
before harvest. In all these situations, the landlord apart from being the landlord, might or
might not contribute further depending in each case on what the parties had agreed on. In
every case therefore, the terms were a question of fact to be determined on the evidence.
 There was no inflexible customary law or practice in tenancies of an agricultural kind that was
so binding in its incidence that no one could contract out it. Since in the instant case, the
evidence abundantly established that the plaintiffs took abunu tenancies and would seem to
wish to change the tenancy, the court should not lend its support to that attitude. The Court of
Appeal had therefore erred in disturbing the High Court’s finding that the agreement between
the parties was abunu and not abusa.

DURO AND Anor. v. ANANE

The plaintiff’s (“A’s”) family claiming that the defendants (D and S) had trespassed on his family’s side of
a boundary brought an action against them for declaration of title and perpetual injunction restraining them
from entering the disputed land. “A” testified that his ancestors acquired the whole of the Afra Nkwanta
land as virgin forest from the Trede stool and reduced it in to their possession. “A’s” testimony was
corroborated by the linguist of the def’s family who further testified that he had been opresent on an earlier
occasion when the boundary had been confirmed by both families as being the footpath leading from Trede
to Odumasi. The defs on the other hand claimed that their family obtained the land from the Tredehene and
not “A’s” ancestors (as had been alleged by A.) and that the boundary was the Mankasu stream and not the
footpath. They therefore counterclaimed for declaration of title and perpetual injunction against “A’s”
family. The Tredehene who testified for the defs however confessed that he did not know how their family
acquired the land. The trial judge gave judgement for “A” and dismissed the def’s counterclaim. On
appeal, the Court of Appeal found that “A’s” account of the traditional history as to how the Afra Nkwanta
lands were acquired was supported by the evidence.

HELD—(dismissing appeal)

The defs were gratuitous licensees of the plaintiff’s family. Consequently, they could continue their
farming activities within the disputed area in peace so long as they behaved themselves and recognized the
title of their landlords. The moment they set up an adverse titole against their landlords, the latter could
revoke that licencse and they would become trespassers if they remained on the land thereafter. As the defs
clearly disputed the title of “A’s” family, they deserved to be thrown out of the area. Accordingly, “A’s”
claims were legitimate and the trial-judge rightly granted it.

The defs so-called long occupation could not convert their gratuitous license to ownership. It could also
not create any equitable interest because it was not the case that they and their ancestors had (1) been led to
regard the disputed area as theirs, (2) spent money defending their right to it and (3) been in adverse
possession for many years, so as to create equitable estoppel in their favour. Their crossing over the
boundary line was within living memory of A and other witnesses. Their occupation was therefore very
recent. RECENT OCCUPATION/POSSESSION WAS HOWEVER NOT IN ITSELF ENOUGH TO
DEPRIVE THE OWNERS OF THE LAND OF THEIR TITLE.

AKOFI v. WIRESI AND ABAGYA

The plaintiff was a representative of a group of strangers to the def’s stool. The defs were representatives
of their stool. The plaintiff claimed that the stool-strangers he represented worked their land under an
abusa agreement with the stool. The defs claimed that the land concerned had been taken over by the
plaintiffs under an abunu agreement. The plaintiffs asked for, an order restraining the defs from demanding
the surrender of half the land cultivated and requiring the defs to enter into a written abusa agreement. The
court observed that abunu agreements are unusual where the land involved is virgin forest.

HELD---
The estate or interest held by a stool-stranger in stool land against an annual rent or tribute of a fixed share
of the yield is for the benefit of, and (apart from forfeiture for breach of condition, etc) is determinable only
by the grantee and his successors in title.
OBSERVATION OF Native Trial Court at 259
“Under the abusa system, the tenant pays all expenses in connection with working the properly, the
landowner not contributing towards the cost of labour, while under the ebuenu or one-half system, the cost
of making the farm is, in the first instance, borne by the landlord and the farmer-tenant is then placed in
charge of the farm to maintain and improve it. ‘as the tenant does not contribute to the cost of making the
farm, he only gets one half of the farm’.”

ATTAH v. LAGOS

The def’s father, Kojo Alata, acquired land on which he farmed for a number of years until his death. On
his death, the land was left abandoned for some 10 years. The stool therefore granted the land to Kofi
Attah. Alata’s son ie the def (Ysufu Lagos) returned from Nigeria and hearing that his late father had
owned cocoa farms demanded their return to him. Judgement was given in favour of Lagos in the Native
Court of the Asia Local Council. On appeal to the Land court, It was

HELD—

Abandonment of the land for 10 years following the death of Kojo Alata extinguished whatever farming
rights had existed and left the stool free to make a valid grant. Kofi Attah, having obtained such a grant,
the stool would have no right to dispossess him in favour of Yusufu Lagos.

ASOMAH v. SERUORDZIE

In 19966, the plaintiff, a stool-subject, acquired a tract of apparent virgin forest land for farming. He
cultivated cocoa and foodstuffs. Years later, the def came to the land and asserted title to the land. The
plaintiff therefore sued for declaration of title and damages for trespass. The def also counterclaimed for
similar reliefs. The trial judge found that (a) the def had had a prior grant of the same land in 1964 from
the stool (b) the def had cleared only a small portion of the land (c) the def had failed to cultivate and
maintain the land within 2 or 3 years in breach of the terms of the grant, (d) at the time of the grant to the
plaintiff, the land had reverted to forest.

HELD—(in the Supreme court)

1. In determining the issue of abandonment, the relevant time to consider was not when the
grantors regranted but when the def turned up to assert his rights to the land. Since under the
terms of the grant to the def, his possessory title was condtional upon his cultivating the land
within 2 or 3 years after the grant, it was clear that at the time he tried to asset any claim to the
land, he had on his own evidence, lost all right therein.

2. NOTE—the Farm Lands (Protection) Act 1962 (Act 107) has since this case been repealed.
Since the def had failed to cultivate and plant crops on the land, he failed to farm the land or
any portion of it it had com within the terms of section 5 of the Farm Lands (Protection) Act
(Act 107). And since on the evidence, he left the land, in February, 1965 and returned in
August, 1974, he had not farmed the land in well over 8 years, and his title had thus been
extinguished, according to the provisions of section 1 Act 107.

3. The evidence showed that the plaintiff had acquired the land in good faith, and at the time he
took it, it was impossible to detect that any portion had ever been farmed before. Since the
plaintiff had farmed virtually the whole land, notwithstanding any defect in his title section 2
(1) of Act 107 would operate to confer valid title to the land on him.
MENSAH v. BLOW

The orginal owner of the land in dispute was the appellants successor who deared the land of virgin forest.
This ancestor then permitted or licensed the respendent’s ancestors and followers to occupy the land.
During this long period of occupation, no tribute of tolls were demanded or paid and occupation was
permitted subject to good behaviour.

ISSUE—Which of the 2 parties had the exclusive right to own or possess the land in question: the
respondent submitted that she was now entitled to dispossess the appellant because of the long,
uninterrupted possession that had been enjoyed by herself and her ancestors.

HELD—(allowing appeal)

1. Customary law regarded the respondent’s ancestors as licensees of the appellant’s ancestors.
There was no interest or estate in the land in a licensee who had a right to use the land equally
with the grantors. Throughout this period of occupation the licensee had a present right of
possession and user over any portion of the grantor’s land where the right of the grantor was
not ousted. The granting of the license without paying tribute or tolls was not to be regarded
as a surrender of all claims or rights in the land

2. A licensee did not in the course of time become an absolute owner of land to the extend of
depriving the real owner of the right of user over unoccupied portions of the land. Because
the appellant’s ancestors originally cleared the land and did not subsequently abandon it,
customary law and practice enjoined the respondent to give way to the appellant as the right
full owner.

OBITER-

Had the respondent been able to establish that (1) her ancestors were the 1 st to cultivate the land OR (2) that
although it was the appellant’s ancestors who had 1st cleared the virgin forest, they had subsequently
abandoned it, then she might well have been entitled to claim possession against the appellant.

KUMA v. KUMA

The def and his ancestors had been in occupation of the land in dispute for about 6 generations, without
hinderance by the plaintiff or his ancestors; no tributes or tolls had been demanded or paid. It was even
established that no drink had been given to owners of the land for permitting him and his people to farm on
the land. The present action was instituted (when the def attempted to sell outright portions of the plaintif’s
family land) to determine the extent of the def’s rights over the plaintiff’s ancestral land. The plaintiff was
only following the practice of his forebears in not exacting tribute or tolls from persons occupying the land
with the family’s permission. He allowed them to remain on the land subject to good behaviour.

PRINCIPLE—Though a declaration of title was granted, this did not amount to an order for ejectment of
persons on the land.

HELD—

The licensee only has a right to use land equally with the grantors, and it is understood according to
customary practice that throughout the period of occupation, the licensee at custom has a present right of
possession and user over any portion of the grantor’s land where the right of the grantor is not ousted. The
granting of the license to occupy the grantor’s land without paying tribute or tolls is not to be regarded as a
surrender of all claims or rights in the land.

SASU v. ASOMANI AND Anor.

The plaintiff farmed on a portion of forest land which had been cultivated by the defs’ uncle. When this
was discovered, the plaintiff agreed to pay “ abusa” to the 1st def in respect of the land. After he had paid it
for 19 years, the Omanhene of Kwawu made an order forbidding the practice of the abusa custom among
the natives of Kwahu. The plaintiff then refused to pay the “abusa” and the 1st def went onto the land and
seized cocoa pods. All the parties were natives of Kwahu. The plaintiff sued for damages for trespass.
The trial native court gave judgement in his favour.

HELD—

Customary law could be altered only nder the provisions of the Native Authority (Colony) Ordiance, 1944
(No 21 of 1944). There was no evidence that the Omanhene” order complied with those provisions.

However, the custom merely entitled the owner to be paid a one-third share of the proceeds not to divide
the farm. Thus, although the custom still existed, the defs had committed trespass.

MANU v. AINOO AND Anor.

In 1950, the appellant entered into an abunu enancy agreement with J.a.W. and they executed a customary
tenancy agreement. In 1963, J.A.W. died and for 3 years the appellant continued in undisturbed possession
on the farm. In 1966, J.A.W’s successor J.A.K as the new landlord successfully sued the appellant for his
share of the proceeds of the farm and for an order for accounts and evicted him from the Farms. J.A.K.
also died and in 1970, J.A. W’s family reinstated the appellant and advanced him some money to
rehabilitate the farms. Soon after the appellant was arrested so the family gave the farms to other people to
cultivate. On his return, the appellant sued the new successors for inter alia, an order for accounts of the
proceeds of the farm in his absence. The defs claimd a lack of fiduciary privity between them and the
appellant. The trial court dismissed the appellant’s claim on the grounds that the appellant had no
possessory right over the farms. Further, that the appellant could not sue for breach of contract because he
had not recognized the respondents as contracting parties.

HELD—

Questions of accounts could always be raised legitimately where a fiduciary relationship between parties
with a corresponding obligation to settle the difference that arose from the finances. Therefore an abunu
tenant such, as the appellant, who had a contractual relationship with the grantor of the land, the respondent
and having introduced himself to the family as custom demands was entitled to call for an investigation into
accounts.

Being merely physically on the land did not create a possessory title. However, customary tenancies like
“abunu” and “abusa” did not derive their validity from a possessory title. They were created in respect of
the share of proceeds only. The ownership of the land remained always in the landlord.

The interest of the abunu and abusa tenant to cultivate the land and partake of the preceeds was protected
and could not be defended by the courts. The appellant therefore had a cause of action available to him to
protect his interests by calling for accounts.

Customary law did not permit a landlord to unilaterally vary or annul a customary tenancy. The right to
forfeiture was SPARINGLY exercised. There had to be the clearest indication for its exercise and the
defaulter had to have every opportunity to explain or mend his ways. The evidence disclosed that contrary
to the trial judge’s finding, the appellant was actually fighting for the preservation of his rights as a tenant
of the respondents. Thefore, there was no lawful warrant for the circuit judge’s refusal of the appellant’s
claim for an order for accounts.

DAO v. KLUCDZABA – Claimant)

This is an interpleader action to stop the sale of a house built by the judgement – debtor on land belonging
to the claimant’s family on the ground that the debtor is a mere licensee. In execution of a judgement
obtained by the plaintiff against the def, the plaintiff caused a house belonging to the def to be attached.
The claimant interpleaded and claimed the house. According to him, the land on which the house stood
belonged to his family. He permitted the deg to build on the land on terms that he would provide 2 bottles
of schnapps annually in acknowledgement of the title of the claimant’s family but that at any time the
claimant required the land for his own purposes, he the dbtor would vacate it forthwith.

HELD—

The license granted to the debtor to erect the building was a valid license, but the condition attached to the
grant that the debtor should vacate the land any time the claimant wanted it was unenforceable as being
unconscionable, and contrary to natural justice and good conscience.

Where a licensor requires a licensee to quit land which he has been permitted to develop, the licensor must
by to the licensee the values of the development, otherwise, a claim for recovery will NOT be entertained.

At customary law, the interest which a licensee has in land is transferable by the licensee with the consent
of his licensor, if the transfer is a voluntary one. In the case of an involuntary transfer, eg – a sale in
execution of a decree of a court of competent jurisdiction, the prior consent of the licensor is unnecessary.
The purchaser, however, acquires no more interest than the licensee possessed. The house in the instant
case, can be sold in execution; the purchaser will merely step into the shoes of the debtor and occupy the
house upon the same terms as the debtor held his license.

ATTA PANYIN AND Anorv. NANA ASANI II (Consolidated)

BRIEFD of PANYIN v. ASANI

Some 300 years ago, the appellant stool permitted the respondent stool to occupy (along with its subjects)
its stool land (the Bedum land) subject to the payment of annual tributes and the performance of customary
rites. In an action for a declaration of title, to the Bedum land, it was held that though the appellants were
overlords of the respondent stool, their claim for forfeiture, ejectment and injunction would be dismissed.
Possessory title of the land was conferred in the respondent.

In the instant consolidated suits, the respondent stool sought a declaration that subject to it paying annual
tribute to the appellants, its subjects were entitled to live on the land. The appellants countor-claimed, inter
alia, for possession and account for all meneys received by the respondent from strangers on the land.
They alleged that without their knowledge and consent, the respondent had either leased or sold the land to
strangers and further, the respondent had refused to allow the tenants to attorn tenant to them as the
overlords of the land. The respondent, in answer to the counterclaim pleaded the 1961 judgement as res
judicata.

HELD (dismissing appeal)—

 1. Long possession and occupation of the land by the respondent stool and its subjects, subjecte
to the payment of annual tributes to the appellants as the overlords of the land, conferred a
usufructuary title on the respondents, and not a mere occupational license.

The respondent stool was therefore entitled to alienate the land to its tenants and strangers without the
consent of the overlords subject to the obligation to provide commutable customary services.

However, a subsequent refusal to provide the services could be visited by invoking customary sanctions.

2. The plea of res judicata was applicable not only to the substantial issue but all matters that
impinged on the issue. Thus, the appellants were estopped per res judicatan because of the
1961 judgement.

AMEODA v. PORDIER (Allodial title)

In 2 consolidated actions by the plaintiff’s family for recovery of possession of land in Ningo, the
plaintiff’s family alleged that the defs were their licensees and were permitted to live on the land in
dispute only as long as they continued to acknowledge the title of the plaintiff’s family. The defs
denied the title of the plaintiff’s family and asserted that title lay in the ningo stool. The paramount
chief of Ningo was accordingly joined to establish his stool’s title to the land.

On summons for direction the 1st question to be determine was “whether all Ningo lands are stool lands
or Ningo lands are owned by various Ningo families”. Judgement was given in favour of the def and
the pliaintifss appealed. In the course of the argument, the def’s counsel conceded that the trial judge’s
holding “that all the lands in Ningo are stool lands was wrong. The main issue before the Court of
Appeal therefore was to whom did the land in dispute belong?

HELD—

1. Lands in Ningo were not stool lands but were owned by families or quarters, and on the facts, the
land in dispute belonged to the plaintiff’s family.

DEFINITION OF ‘STOOL LAND’—Per Amissah J.A

It may be defined loosely to denote land under the jurisdiction of a particular stool.

In a more limited sense, it means that the stool has a proprietary right in those lands. Jurisdictional interest
of a stool MAY carry with it a proprietary interest in the same land but this is not an invariable
consequence

(2) Since the defs had denied the plaintiff’s title, the plaintiff was entitled, as against them, not
only to an order for recovery of possession but also to an injunction restraining them from
committing trespass after giving up possession and to damages.

YEBOAH AND Ors v. KWAKYE (Usufruct)

P, the mother of the testator Y, cultivated cocoa farms, constructed a swish house and put up a cement-
block house, the latter with the aid of a bank loan on land belonging to the plaintiff’s family of which was a
member. On her death, Y was appointed her customary successor and thereby came into possession of the
properties. By his will Y devised the property to the defs; his wife and children. The plaintiff, the
customary successor to Y, claiming that the properties were family properties brought an action, for inter
alia, a declaration to that effect. The defs on the other hand claimed that Y had personally bought the plot
and the swish building and had put up the cement-block house with the bank lean. They claimed that the
farms had been gifted to him by his mother P. the trial judge granted the plaintiff the declaration he sought
and a perpetual injunction against the defs. On appeal by the defs:

HELD, (dismissing appeal)—

Under customary law, where a family member made a farm on vacant family land, even by his own private
resources and unaided by the family, whether with or without prior permission of the family, he acquired
only a unsufructuary life interest there in. Although the life interest was fully alienable (eg it could be
given as security for a bank loan) it was not open to the life tenant, unless he acted with the concurrence of
the head and principal members of the family, to alienate any greater interest than his life estate. On his
death, the interest in the property vested in the family. Any disposition, by the life tenant purporting to
have any other effect such as a devise under his will, should therefore be ineffective.

An executor derive his title and authority from the will of the testator and not from any grant of probate.

The defs had no inherent rights to live in the house because it was not the self acquired property of Y, but
family property to which he had succeeded. As the defs were not the plaintiff’s family members, they only
had a license to live there at the pleasure of the plaintiff’s family. But since there was no evidence that the
license had been revoked, the perpetual injunction order would be discharged.

KWADWO v. SONO (Usufruct)

A timber concession agreement between K and the government required K to compensate owners of any
fruit bearing or cocoa trees damagest as a result of the working of the concession; the amount of
compensation payable was to be determined by the Administrator of stoll lands. S brought action for
damager against K, in respect of inter alia, cocoa trees destroyed in 1977 as a result of K’s operation. The
trial judge however rejected the compensation rate fixed in 1974 by the Chief Lands Officer on the ground
that it was ridiculously low and revised the figure upwards. The plaintiff appealed, on the ground, inter
alia, that since the concession agreement stipulated that compensation was to be fixed by the Administrator
of Stool Lands, the court erred in fixing its own rate.

HELD (dismissing appeal)—

K’s right of precedence to timber on the land did not in any way abridge S’s legal rights and protection to
his crops. Therefore, inspite of the fact that Act 124 (the Concessions Act, 1962) did not spell out the
customary rights, privileges and interests of the Local population over the demised land, nonetheless, those
rights were legal because they were immemorial customary rights and privileges that the local population
of stool land had always enjoyed.

Assessment of compensation by acreage as opposed to the counting of indicidual trees was a rule of
practice and not a principle of law, which the Court of Appeal was NOT bound to follow as a precedent.
But where a rule of practice had the merit of scientific approach, and thus more likely to result in greater
fairness to the parties, the court might do well to employ it.

In principle, it was the actual value of the cocoa trees that the plaintiff S, was entitled to as compensation.
The trial judge was therefore right in considering such factors as (1) the nature of the subject matter (2) the
price of a cocoa tree on the market, (3) the economic usefulness of a 5 year old tree as opposed to a 10 year
old one. Although, the judge’s discretion was called for in arriving at a fair and reasonable rate, ¢12 per
tree was too much. ¢9 would be reasonable.
MECHANICAL LLOYD v. NARTEY

The village of Frafraha formed part of the La Stool rural lands acquired by the Las Stool through conquest.
It was subsequently settled by members of the Agbawe quarter of La whose overall head was the Atototse
(A). “0” was the Frafraha Mantse and both were illiterates. In 1976, “0” with purported consent of elders
granted land go Nartey (appellant) for farming and a document was executed and registered. He went into
occupation. Subsequently, the La Stool granted the respondent-co. land which was inclusive of the earlier
granted land. A document was executed but not registered. Later, on learning from “0” that the Frafraha
Lands were owned by the agbawe quarter and not the La stool, the respondent-co. obtained another grant of
the same plot from both “A” and “0” who jointly executed a document that was registered. They then went
on the land and following their refusal to vacate, the appellant brought action against them for declaration
of title to land and damages for trespass.

The trial judge found for the appellant saying that the Agbawe family had always had the right to alienate
Frafraha land and although the La stool had been adjudged owners, the stool had never exercised that right.

The Court of Appeal reversed that decision. On appeal by appellant to the Supreme Court:

HELD (allowing appeal)

The fact that the La Mantse was the proper authority to alienate or grant portions of La Stool lands could
not be disputed but was a qualifed general.

On evidence, none of the contesting parties had a better or proper grant from the La stool. Consequently,
the issue for resolution was which of them had a better claim to possession against the whole world save
the true owner.

By the mandatory provisions of section 25 (1) of the Land Registery Act 1962 (Act 122), the registration of
a deed of sale constituted actual notice of the fact of registration to the whole world.

Since the plaintiff-appellants grant was first in time and stamped and registerdd, the defs who had no better
grant than the plaintiff from the La Mantse could not claim to dispossess the plaintiff simply on the ground
that the plaintiff never had a grant from the La Mantse.

The La Stool had by its inaction (deliberate omission/failure to assert ownership thereby leading the general
public to believe that the Agbawe family were the owners) led to the belief that it had no objection to
conveyances made by the agbawe family. Following the La Stool’s inaction/acquiesance they were
estopped by conduct from impugning the appellants title which had been perfected by registration and
possessory acts.

The conveyance made jointly by “0” and “A” to the respondent-co. was not valid because on evidence, it
was not explained to 0 an illiterate in contravention of section 4 (1) of the Illiterate’s Protection Ordinance

FOLI v. AGYA-ATTA (Consolidated)

In a previous action in 1957 before the High Court between the Nkonya Stool (represented by the plaintiffs)
and the Alavanyo stool (represented by the defs), the boundary between the 2 stools was upheld by the trial
court and the plaintiff was therefore ajudged owner of the land lying on the Nkonya side of the boundary.
The plaintiff’s other reliefs however were dismissed by the judge as not having been pressed by him.
Subsequently, the defs who had made farms on the land adjudged as the plaintiff’s, continued to make new
farms on the land and refused to attorn tenant to the plaintiff. Therefore, the plaintiff by the present action
sued for the same reliefs v12, recovery of possession, damages for trespass and perpetual injunction. The
trial High Court found for the plaintiff. On appeal, counsel for the defs contended that the plaintiff was
precluded per rem judicatam from bringing presrnt action by virtue of the dismissal of the same reliefs in
the 1957 action and that the trialjudge had erred in holding otherwise.

HELD—

It was a rule of law that a person could not bring an action where the issue he sought to have determined
had as between the parties already been disposed of by a competent court. This rule covered not only
matters which were actually dealt with in the previous judgement but as well these which ought to have
been brought up but were not.

A dismissal of a suit for mere want of prosecution could not found res judicatam. Thus in actions which
were dismissed by the court instead of being voluntarily withdrawn by either party, the legal position was
that any issues concluded before the dismissal should be considered as adjudicated with regards to that
issue. In the instant case, the dismissal of the reliefs claimed was a mere refusal of reliefs and was by no
means intended to conclude any matter. Consequently, the plaintiff was not predicted per rem judicatam
from bringing the present action.

In any case, after the 1957 decision, upon the invitation to attorn tenant and the refusal of the defendants to
do so, the plaintiff acquired a cause of act= by which he could ask for the present reliefs.

OBITER—(ABABIO v: NSEMFOO) The following principle is from the forementioned case.

There was a rule that where stool-subjects were found, upon determination of a dispute with an adjacent
stool, to have made farms bona fide on land belonging to the other stool, they should be given an
opportunity to enter tenancy agreements with the stool adjudged owner of the land. It was only after they
had failed to do so that they could be sued to show cause why they continued to farm on the other’s land
without attorning tenant. This was a rule emanating from a decision in a case from the Akan area but in
spite of the fact that the present case was in the Ewe Area, this rule was so sensible and reasonable that it
ought to have general application. Ababio v. Nsemfoo

PER AMISSAH J.A.—

In answer to the question whether the claims for relief (other than for the determination of the boundary in
question) were discontinued or dismissed? The answer is simple they were dismissed not only because the
record says so but also because by itself, it cannot be held to have settled any issue or question between the
parties.

The argument that once a landlord fails to eject a tenant he may never attempt to eject the tenant again
whatever the subsequent breaches the tenant commits must be dismissed as unpersuasive and unacceptable.

A grant of farming rights in a forest reserve confers no right of ownership in the land. Admissions of
farming rights in forest reserve orders deal with physical facts on the land and this may not necessarily
coincide with journal rights of ownership.

ABABIO v. NSEMFOO

These was land litigation between the Essumeja and Offoasi Stools which was determined in favour of
Essumeja. Sometime later the Chief Essumeja in vited the chief of Offoasi to negotiate the terms on which
the subjects of the Offoase Stool who were settled on the land would be allowed to remain in occupation of
it. There being no response the Essumejahene obtained a writ of possession which put him in possession of
the subjects of the Offoasi Stool being ejected from the land. In consequence, the plaintiff respondent one
of the said subjects of the Offoase stool, brought an action against the Essumajehene in the Asante-hene’s
“A” Court for recovery of possession of 10 cocao farms and a compound house on the land in question or
alternatively, damages for wrongful dispossession.

ISSUE-
Whether on the facts, there was any native customary law disentitling the defendant from ousting the
plaintiff from possession of his farms and house.

HELD-

Affirming the judgement of the Asantehene’s “A” Court and the Chief Commissioner’s Court that this was
an insufficient compliance with native costomary law, which laid down that the appellant should have
notified NOT the chief of Offoase but the tenant farmers themselves, to come before him for tenancy
agreements and if the failed, he could sue them to show cause why they farm on his stool land, and refuse
to enter into tenancy agreements with him.

PER CURIAM-

The proof of evidence of a native custom is not necessary before a native court whose members are familiar
with that custom.

OFORI ATTA v. ATTA FUA

In this case, Simply C.J. having found that the land in dispute had been unoccupied rior to the dispute held:

“These lands being uninhabited lands situated between 2 paramount stools would according to native law
and custom accrete to the paramount stools and the question of boundary between the two paramount stools
would be one in respect of adjoining land”.

In other words, unoccupied land between paramount stools is divided equally such that the portion nearest
each stool becomes part of that stools land.

MANAGEMENT OF STOOL PROPERTY

SCHANDORE v. ZEINI

The appellants held a lease of a plot of land from the Saamanhene and the Asantehene. The lease contained
a covenant against under letting without. The appellants constructed a house on the plot. In 1969, the
appellants entered into an oral agreement to sell the unexpired term of the lease hold property, furniture and
a cooker to the respondent for a sum. By March 1972, the respondent had overpaid the appellants. Part of
the payment was effected in Foreign currency. The first appellant however refused to convey the house to
him. The respondent therefore brought an action for specific performance of the oral agreement and for the
recovery of the amount overpaid. In their defence, the appellants denied that there had been an agreement
for the purchase of the house. They contended interalia that, the agreement had been for a tenancy of the
house completely furnished for 6 years at an annual rent of ¢2,500. They counter claimed for a declaration
that the transaction had been a tenancy for 6 years certain.

ISSUES-

Whether the agreement was for a sale of the unexpired term of the lease or a sub-lease of the property for 6
years.
Whether the court in its discretion should grant the relief of specific performance.

HELD-

The courts on the ground of public policy would decline to enforce a contract which though perfectly legal
was performed illegally. Even though the respondent performed part of the contract illegally, by paying
foreign currency, the courts would assist him because the illegality did not from the basis of basis of his
claim for relief.

However, the respondent could not make out his claim for the overpaid amount without showing that it was
due to his miscalculations arising out of the fact that he had paid some of the purchase price in foreign
currency. He could not in that claim therefore avoid relying on the alleged illegal payments to prove his
case. The court would therefore refuse his claim.

Ordinarily, the covenant against sub-letting without the lessors consent was attached to a right of re-entry in
the head-lessor. A sub-lease in contravention of the covenant always gave the head-lessor a right to
damages in addition to which he might determine the lease, but the sub-lease was NOT void ab initio. In
any case, the covenant was to protect the head-lessor not the lessee. However, the courts could under sec
146 (2) of the English Law of Property Act 1925 always grant relief against forfeiture. Section 8 (1) of the
Administration of Lands Act, 1962 (Act 123) did not require the concurrence of the Minister to precede
disposition. Instead it contemplated the holder of the land making all arrangement for a disposition first,
THEN the Minister’s concurrence being sought afterwards. This disposition remained voidable until the
concurrence was given. However, transactions entered into purposely to evade the Minister’s consent
would be rendered void.

BOATENG alias BEYEDEN v. ADJEI and Anor.

The plaintiffs had sought a declaration in the New Juaben Local Court that certain properties were the self
acquired property of one Kwesi Baah, deceased, and that they were entitled to the possession of the said
properties. The defendant admitted that the properties concerned were Baah’s self-acquired properties but
contended that (i) by reason of his occupancy of the Nsenifuor stool, on his death, Baah’s properties
became stool property; (2) that Baah had made a gift of his properties to the stool on his accession; and (3)
that the plaintiffs were estopped by conduct amounting to acquience from claiming the properties for their
immediate family.

HELD – (Dismissing Appeal)

(1) An occupant of a stool can only succeed to the private possessions of the previous
occupant where in addition to being the successor in office he is also elected by by the
family as the personal successor of the previous occupant.

(2) The stool has a legal personality quite distinct from the individuals and branch families
that make up the stool family. Individuals and branch families are therefore in law
capable of holding properties in their own right unaffected by the incidents which attach
to properties of the stool family.

(3) It is a matter of evidence at every stage in the history of a given property whether that
property is self-acquired or family owned “Earmarking” or declarations made by newly
installed chiefs where the most effective means known to customary law for securing
evidence at some future time for the proof of the facts so declared. It is a rule of
evidence and not a rule of substantive customary law.
 (4) “Earmarking” to be of practical effect involves a detailed specification of the properties
sought to be earmarked. Customary law is not so undiscriminating as to accept a
general statement in which no properties are named.

(5) Except in the special case of forfeiture, for breach of conditions of limited ownership,
there is no principle of customary law which operates to terminate the ownership of the
property save by the voluntary act of the owner of the property. Therefore, when a stool
occupant lays claim to property as being his self acquired property, the criterion for
adjudicating is whether there is proof and not whether the property claimed was
earmarked upon the claimants’ accession to the stool.

APPEAL from a decision of Adumua-Bossman J. delivered in the High Court, Accra, reversing the
decision of the New Juaben Local Court and granting the plaiantiffs a declaration that the properties in
dispute were the self-acquired properties of one Kwesi baah, deceased and not these of the Nsenifuor stool
family.

KWAN v. NYIENI (Alienations)

Kojo Kwan and Osei Kojo were members of the same family, whose head was the latter. Sometime
between the years of 1953 and 54, the members of this family purported to remove Osei Kojo from the
headship, on the gound that he was squandering the family property. There was an arbitration and the
artitrators decided that Osei Kojo’s removal was not in order. Notwithstanding this decision, the family
appointed Kojo Kwan as the new head. The family’s real property consisted of six Cocoa farms. In april
1953, Osei Kojo (then still head) together with a female member of the family mortagaged 4 of the 6 farms
to Kwesi Nyeini. The family found out when in January 1954. Nyeini advertised the said 4 farms for sale
in exercising a power of sale under the mortgage. Thereupon Kojo kwan purporting to act as head of the
family instituted an action in the Kumasi West district Court “B” Goaso, against Osei Kojo and Nyieni .
The court made a fact finding that the award of the arbitrators was binding on the family; therefore, the
apoointment of Kojo Kwan as head of family was not in order. The court entered judgement for Nyieni for
the recovery of the sum of £900 for which the farms were mortgaged to him. This sum was to be paid out
of the proceeds of the farm. Kojo Kwan appealed to the Asantehene”s Court “A2” against this order. His
appeal was dismissed.

Notwithstanding these decisions, Nyieni s and d the farms in dispute to Kwaku Duah 3 days after the
judgement. To challenge this sale, Kwan instituted proceedings against Nyieni and Duah. The action was
dismissed mainly on the grounds that Kwan did not have the capacity to sue. Kwan appealed to the court
of appeal and the appeal was allowed. Final leave was given to appeal to the Privy Council.

HELD-

(1) As a general rule, the head of family, as representative of the family is the proper person to
institute a suit for recovery of land.

(2) To this general rule, there are exceptions in certain special circumstances such as:.

(a) where it is shown that the head, either out of personal interest or otherwise will not make a move to
save or preserve family property which is in danger of being lost to the family

(b) where owing to a division in the family, the head and some of the principal members will not take
any steps.

(c) Where the head and the principal members are deliberately disposing of the family property in their
personal interest, to the detriment of the family as a whole.
In these special circumstances, the courts will entertain an action by any member of the family, either upon
proof that he has been authorized by other members of the family to sue, or upon proof of necessity,
provided that the court is satisfied that the action is instituted to preserve the family character of the
property.

(3) a deed of conveyance, mortgage or lease of family land which is on the face of it executed by the
head and another member, upon proof timorously made that its execution was without the
knowledge and consent of all the principal members of the family, is null and void, and passes no
title.

(4) that the mortgage by Osei Kojo was null and void and passed no title.

(5) that the sale by the mortgagee was therefore wrongful, and passed no title.

NANA HYEAMAN II v. OSEI AND Ors.

The plaintiff, the divisional chief of Gwira Banso in the Wwira Traditional area, instituted an action for the
cancellation and setting aside of a timber lease of a parcel of land attached to his stool. Counsel for the
defs raised a preliminary objection as to the capacity of the plaintiff to institute such an action on the
ground that by virtue of the concessions Act, 1962 (Act 124), particularly sec 16, only the President could
institute such proceedings on behalf of the stools concerned. Counsel argued in concert that the effect of
the words “vested in the President in trust for the stools concerned” used in Act 124, sec 16 was to take
away the tradition-clothed powers of chiefs over stool land.

HELD- Dismissing Preliminary Objection

(1) the meaning of the words “vested in the President in trust for the stools concerned” should be
construed univocally in both the Concessions Act, 1962 (Act 124) and the Administration of
Lands Act, 1962 (Act 123). The provisions were in pari material and ought to bear the same
construction. The statutory powers of the President ought to be construed as running side by side
with the powers of the stools as the allodial owners of stool lands.

PER CURIAM

It becomes obvious if we adopt the purpose oriented study of statutory interpretation that the
legislature had NEVER had the intention of depriving the stools of this country of their inherent right
to ownership of stool lands, notwithstanding statutory provisions entrusting stool lands to the President
for the stools. This is made manifest in Act 123, where in sec 8, stools can make grant of stool lands
even though the same lands may be entrusted to the President.

(2) Under Act 124, stool lands could lawfully be taken away to a concessionaire; but before such a
process occurs, the right of the stool to deal with the land in a manner consistent with Act 123 still
persisted. Consequently, the occupant of the stool could, without any inhibition, challenge the validity
of a purported concession affecting his land. The objection to the capacity of the plaintiff was
therefore untenable.

FRIMPONG v. NANA ASARE OBENG II

The plaintiff was the occupant of the “B stool whilst the defendant was a concessionaire operating a timber
concession in an area abutting the plaintiff’s stool land. The defendant illegally felled some timber trees in
an area outside his area of concession and within the plaintiff’s stool land. Having reported the matter to
the proper authorities the, Lands and forestry departments, the plaintiff instituted an action claiming
damages for trespass and an order for interim injunction to restrain the defendant for further dealing with
the timber trees. The application was granted by the trial district magistrate on appeal, the defendant
contended inter alia that, the plaintiff was incompetent to institute the action by virtue of sec 2 of act 123.

HELD, allowing appeal

([Link] construction, sec 2 of act 123, did not take away the inherent right of an occupant of a stool to
maintain action in respect of his stool land. Instead the wording of the section contemplated that the
proceedings in respect of which the President might intervene must have been pending and commenced on
behalf of the stool. Consequently, the plaintiff’s action for trespass was maintainable.

(2.) In granting the application, the trial court ought to have considered some more factors which it did not.
However, the court in dealing with the application for interim injunction would not attempt to determine
the rights of the parties.

(3) If the trial magistrate had considered the requisite factors, when dealing with the application, he would
on the facts have held that the equities favoured refusing the application.

KORBLAH II v. ODARTEI III

The respondent herein referred to as the plaintiff was enstooled as a “sub-chief” of Nsakina under the
James Town Alata stool. Notification in the Local Government Bulletin. A subsequent bulletin notified
the enstoolment of the 4th appellant (herein referred to as the defendant) as “senior sub-chief of Nsakina
under the sempe stool. The plaintiff by an originating summons, brought an action in the High Court that
the defendant’s alleged traditional office did not exist and his alleged enstoolment as such and the gazette
notice to that effect were all null and void. The plaintiff also invited the court to construe sec 48 (1) of the
Chieftaincy Act 1971, (Act 370) and the various gazette notices in resolving the issue of whether or not the
defendant was a chief. Judgement was given in favour of the plaintiff. On appeal

HELD, ALLOWING APPEAL

(1) The general practice rule was that where the main point at issue was one of
construction of a document or statute, or was one of pure law, the originating
summons was the appropriate procedure. But this would not be appropriate
where there was likely to be a substantial dispute. In the instant case, the
complex facts in dispute could not be resolve simply by the construction of sec
48 (1) of Act 370 and by reference to the mass of documentary evidence
adduced, as well as the official publications exhibited. The originating summons
was thus the wrong procedure adopted.

PER Edusei J.A.-

The use of Order 54A is also resorted to when a right depends on the construction or interpretation of an
instrument or statute.

(2) gazette notices and other official publications were not legally conclusive proof
of the matters there in contained. They were under Order 37, rule 55 of L.N.
140A, only prima facie proof of the facts notified and might be rebutted by any
other evidence.
 (3) It would be wrong to hold that the management of stool lands fell within the
statutory functions of a chief under sec 48 (1) of Act 370. The correct legal
position was that, that function fell within the customary duties of a chief.
Though the central government had made certain administrative arrangements for
the more efficient discharge of the customary duties by a chief, nevertheless, that
function appertained to the chief’s customary powers and not to his statutory
duties.

AMANKWANOR V. ASARE

According to an agreement between two parties, a cocoa farm was shared in the ratio 2:1. The defendant
acquired two-thirds of the land where as the plaiantiff came into possession of one-third of the farm.
Subsequently, the defendant trespassed on the plaintiff’s portion of the farm and the plaintiff sued him in
the local court for damages for trespass, an order for account and ejectment. At the trial, the defendant
tendered a document which he alleged was given him by an illiterate Odikro of Krodua evidencing the sale
of the farm to his deceased father. He called neither the letter writer who prepared the document nor the 2 nd
signatories to it. Judgement was given for the plaiantiff and the defendant successfully appealed to the
High Court. The plaintiff in turn appealed further to the Supreme Court.

HELD, allowing appeal-

There is no presumption when an illiterate executes a document that he has appreciated the meaning and
effect of it. The onus is on the party seeking to bind the illiterate to the terms of the document to prove that
the latter has really understood the process. Since the Odikro was illiterate, to bind him to the document
which was prepared in English, the defendant had to establish that it had in fact been properly explained
and interpreted to him as to make him understand its real import. The defendant failed to discharge this
onus.

The document was not binding on the stool because at customary law, a document purporting to convey
stool land is not binding on the stool unless the elders or at all events the linguist is a party thereto.

CRIMINAL LAW

DETERRENCE

KWASHIE AND Anor v. THE REPUBLIC

In collaboration with 2 other police officers, the 1st appellant used his office as a police detective to seize a
large quantity of goods that had been smuggled into the country. The goods were sent to the private house
of one of the accomplices for the purpose of selling them for the benefit of all who participated. The
appellants and their accomplices were found guilty of stealing contrary to sec. 124 of the Criminal Code
1960, (Act 29) and were each sentenced to 7 years imprisonment with hard labour. On appeal, it was

HELD-

(1) that when a trial judge is imposing a sentence, on a convicted person he is under no obligation to
give reasons for the sentence he passes.

(2) that as the offence was very grave, the sentence must not only have be punitive but must also have
been a deterrent in order to mark the disapproval of the society of such conduct by police officers.
 In imposing a deterrent sentence, the value of the subject matter of the charge (the value of the
stolen goods in the instant case) and the good record of the accused become irrelevant.

(3) In determining a sentence, it is proper for a court to consider on the one hand the social and
official position of the offender and on the other hand that the offence may be aggravated by
reason of such position. The trial judge was justified in taking the official position of the first
appellant into consideration in passing an exemplary/deterrent sentence.

KWADU v. THE REPUBLIC (UTILITARIAN)

The appellant was tried summarily and convicted in the circuit court, having been found guilty of
possessing 3 forged Bank of Ghana ten new cedi notes contrary to sec 18 (2) of the currency Act, 1964
(Act 242). He also admitted to a previous conviction for stealing and one for attempted stealing. He was
sentenced to 7 years imprisonment with hard labour. On appeal, it was submitted that as the case had been
tried summarily the circuit court had no jurisdiction to impose a sentence of more than two years, that
which a district court trying the same case could pass.

HELD-

(1) Circuit and High Courts can issue a process to commence summary trials before them by virtue of the
56 of N.L.C.D 84 where these courts do issue such a process they sit their own right haven’t regard to
sections 2 and 164 of the criminal Procedure Code 1960 (act 30) and not by reason of possessing
concurrent jurisdiction with the district court.

(2) The effect of N.L.C.D 276 which substituted sec 44 of Act 30, is to enable the circuit and High Courts
in a summary trial to impose the maximum sentence that is provided by law without any limitation as was
believed to have been imposed by paragraph 56 of N.L.C.D. 84.

(3)Although the circuit court judge had the jurisdiction to impose a sentence of 7 years with hard labour,
such a term was too harsh. A term of 3 years with hard labour would be harsh enough to be a deterrent and
short enough to satisfy the reformative element in criminal justice.

ABU AND Ors v. THE REPUBLIC (UTILITARIAN)

The appellants all adult first offenders were tried and convicted on a count of conspiracy to steal and
stealing 30 bags of cement at a work site in Nyankpala. The 1st 2 appellants were sentenced to 3 years
imprisonment with hard labour on the conspiracy count and 18 months” imprisonment with hard labour on
the stealing count, both sentences to run concurrently.

The 3rd and 4th appellants were acquitted and discharged on the stealing count, but sentenced to 3 years
imprisonment with hard labour on the conspiracy count. On appeal, counsel for the appellants submitted
that the trial circuit judge should have considered certain mitigating factors favouring the appellants, and
also the harsh and deteriorating economic conditions which tempted the appellants to commit the crime in
question.

HELD-

(1) In imposing a sentence, the court has a duty to consider all aggravating and mitigating circumstances,
such as the appellants being first time offenders, and the economic situation prevailing. However, in the
case of the last, it would be dangerous not to impose a custodial sentence, as the court might be criticized of
encouraging dishonesty and introducing necessity as a major and mitigating factor in crime. The economic
factor, whatever its influence ought not to have the effect of totally obliterating the legal consequences of
crime by sanctioning or encouraging probation. Its only effect is possibly to discourage very severe and
harsh sentences.

(2) In determining sentence for group crimes like conspiracy to steal and stealing, the sentence on
individual members ought to reflect the part each played; those who played a major role should receive
more and those who played a minor role less. Mitigating circumstances in this case included-I, being first
offenders, the degree of aggravation and planning and the part each played in the organization and
planning.

RETRIBUTION

ASAMOAH v. THE REPUBLIC

The appellant was convicted in February, 1972 by the district magistrate, Grade II, Techiman for selling a
cake of Sunlight soap 15p instead of at the controlled price of 10p contrary to secs 1 and 2 of the control of
Prices Act, 1962 (Act 113). She was sentenced to a fine of ¢80 or 3 months imprisonment with hard
labour. At the time of the alleged offence, Act 113 had been repealed and replaced by the Price Control
Degree 1972 (N.R.C.D. 17). In framing the charge, Act 113 was quoted instead of N.R.C.D. 17. At the
same time the price had been raised to 14p per cake.

HELD-

(1) Where the enactment referred to in the statement of offence was non existent, what had to be
considered was whether the offence disclosed in the statement of offence was at the time of the alleged
offence know n to the law. In the instant case, there was still the offence of selling above the controlled
price though then the offence fell under N.R.C.D. 17 which had repealed Act 113. Thus, it was a mere
technical error in the charge that instead of quoting the former, the repealed act had been quoted. Therefore
it still field.

(2)Considering that the value of the cedi had fallen with a consequent rise in the prices of commodities and
this being so, the appellant would have made an illegal profit of only one pesewa it would have been absurd
to hold her to the fixed price. In the circumstances the sentence was excessive.

MELFA v. THE REPUBLIC

The appellant was convicted by the Accra High Court for manslaughter of Robert Mensah, an international
football star, and sentenced to 8 years imprisonment with hard labour. The evidence showed that after a
row in a drinking bar the appellant, left the bar but was shortly afterward followed by the deceased who
attached the appellant and beat him up. In the face of the beatings, the appellant picked up a broken bottle
and warned the deceased to stop beating him. The deceased still advanced and the appellant stabbed him.
Robert Mensah died in hospital of wounds he sustained. The appellant was found guilty of manslaughter
and given a sentence of 8 years imprisonment on the ground that it was a crime of violence.

HELD-

(1) Each crime of violence should be considered on its own merit, when inflicting penalty on the
perpetrator. If the learned trial judge had considered all the facts of the crime especially that the
deceased had been the aggressor throughout the whole incident, he would not have imposed such
a long harsh excessive sentence.

WOOLMINGTON v. DIRECTOR OF PUBLIC PROSECUTIONS (Actus Reus_

Woolmington was charged with the murder of his wife. He had on his own admission shot her but said in
his defence that the gun had gone off accidentally. The judge told the jury that so long as the prosecution
had shown that the accused had caused the dath, malice was presumed and that the accused must prove
that the killing was an accident. He was convicted. The court of Criminal Appeal upheld the conviction.
In the House of Lords, the conviction was quashed.

It is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of unsanity and any
statutory exceptions. If at the end of and on the whole case, there is a reasonable doubt created by the
evidence given created by either the prosecution or the prisoner as to whether the prisoner killed the
deceased with malicious intent, the prosecution has not made out the case and the prisoner is entitled to an
acquittal.

R.v. PITTWOOD – CRIMINAL OMISSION

Pittwood was a gatekeeper whose job was to keep the gate shut whenever a train was passing between
7am and 7 pm. One afternoon, the gate was left open and a hay cart crassing the line was struck by a train
killing a man and seriously wounding another. Defence was charged with manslaughter and found guilty.

Wright J. said there was gross criminal negligence as the man was paid to keep the gate shut and protect the
public. He added that a man might incur criminal liability from a duty arising out of a contract.

R..v. LOWE

Lowe was charged under sec 1 of the children and Yound Persons Act 1933 as being a person who had the
charge of a child and willfully neglected it in a manner likely to cause it to suffer or injure its health
unnecessarily. Lowe alleged that the child’s critical condition arose after he had told the woman he was
living with (the kid’s mom) to take the child to a doc and that she later falsely told him she had done so.
He was convicted and he appealed.

MENS REA; UNINTENTIONAL ACTS

SWEET v. PARSLEY

The magistrate had convicted Sweet of being concerned in the management of premises which were used
for the purpose of smoking cannabis, contrary to sec 5 of the Dangerous Drugs Act, 1965. The evidence
was that she had no knowledge whatever that the house was being used for that purpose. She visited the
premises only occasionally to collect letters and rent. Sec 5 provides that “if a person…. Is concerned in
the management of any premises used for the purposes aforesaid, he shall be guilty of an offence under the
act”.

HELD-

The House of Lords after holding that in spite of the wording of the Act in terms of the “management” the
office of mens rea must be implied, found that there was no men rea in the accused in this case and that an
appeal should be allowed and her conviction quashed. Per Lord Reid:

When ever a sec of an act is silent as to the requirement of mens rea, there is a presumption that in order to
give effect to the will of Parliament, we must read in words appropriate to require mens rea.

R v. TOLSON
Tolson was deserted by her husband and she later learnt that he had been lost at sea. Believing herself to be
a widow, she openly remarried.

HELD-

She could not be convicted of big amy under sec 57 of the Offences against the Persan Act 1861. She had
no mens rea. Tolson’s conduct was not immoral but perfectly natural and legitimate. A statute may relate
to such subject matter and may be so framed as to make an act criminal whether there has been any
intention to break the law or not. In other cases, a more reasonable construction requires the implication
into the statute that a guilty mind is required.

HARUNA v. THE REPUBLIC

On appeal against a deterrent sentence of 8 years imposed on a young man aged 26 by the trial circuit court
for the first offence of possessing Indian hemp contrary to secs 47 (1) and 57 (1) of the Pharmacy and drugs
Act 1961 (Act 64)

HELD- allowing Appeal-

When young men (such as the appellant) are 1st offenders, it was essential in the interest of the reformative
element in criminal justice that they not be sent to prison unless a prison sentence war a mandatory legal
requirement. If not, then unless there were special circumstances calling for a custodial sentence, the
courts must avoid incorrerating young offenders.

The question of sentence was a matter of discretion with all courts of justice, however the discretion was
exercisable on well known principles. In awarding particularly deterrent sentences, if there were sentences
tending to mitigate the application of the deterrent principle, then reasons must be given why those
circumstances must be ignored if a deterrent sentence was imposed. If this was not done, then the
discretion had not been properly exercised and an appellate court could interfere with the exercise of
discretion. If however, all circumstances relevant to the question of appropriate sentencing had been
adequately considered, the exercise of a discretion by a lower court ought not to be impugned by an
appellate court.

In the instant case, having regard to (1) the accused being a 1st offender and only 26 years

(2) the smallness of the amount to be realized from the sale of hemp.

(3) the economic conditions of the country, the deterrent sentence of 8 years imposed on the appellant
was improper and would be set aside 5 years instead.

DABLA v. THE REPUBLIC

Applellant appealed against their conviction and sentences by the circuit court, Wa, on charges of
conspiracy to steal and stealing Embassy cigarettes.

HELD- allowing appeal in part

In imposing sentences of persons jointly convicted, the sentences should reflect the role which each person
played. Trial courts should however give due weight to all mitigating factors. In the instant case, whilst
the value of the cigarettes stolen was quite great, it was significant that the 1 st and 4th appellants helped the
police to retrieve all the stolen cigarettes. Besides, all the appellants were young persons; they pleaded
guilty to the charge of stealing and made no attempt to waste the time of the court. Their conduct showed
remorse. Furthermore the offence seemed to have been committed on the spur of the moment. All these
were mitigating factors which should have influenced the trial judge. Consequently, having regard to their
conduct, previous records and individual circumstances their sentences would be reduced.