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[CONSOLIDATED CASES]
H. E. GOLIGHTLY AND ANOTHER
V.
E. J. ASHRIFI AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF MARCH, 1955
APPEAL NO. 106/53
2PLR/1955/59 (WACA)
OTHER CITATION(S)
2PLR/1955/59 (WACA)
(1955) XIV WACA PP. 676-685
LEX (1955) – XIV WACA 676-685
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BEFORE THEIR LORDSHIPS:
FOSTER-SUITON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
H. E. GOLIGHTLY AND TETTEY GBEKE II AND FIFTEEN CONSOLIDATED CASES – Appellants
AND
E. J. ASHRIFI AND OTHERS – Respondents
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ORIGINATING COURT(S)
Appeals by defendants against decision(s) of trial court in consolidated cases before Land Court at Accra (Jackson, J., Presiding)
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REPRESENTATION
C. F. Hayfron-Benjamin, with Ollennu — for the Atukpai Stool and other Appellants (other than the Nii Kotey and Nee Odoi Quao families)
K. A. Bossman — for the Nii Kotey family
J. Quist-Therson, with Kurankyi-Taylor — for the Nee Odoi Quao family
E. Obetsebi Lamptey — for the Ga, Gbese, and Korle Stools-Respondents
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ISSUE(S) FROM TH CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Family land under Native Law and Custom – Ga tenure of land – Alienation of – Flexibility of custom – Application of customary law – Courts Ordinance, section 87 (1).
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CASE SUMMARY
“Land belongs to the community, the village or the family, never to the individual … He (viz. the head of the community or village or family) has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make an important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger”: from the judgment of the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria, adopting the report on land tenure in West Africa made by Rayner, C.J., as substantially true: 1921, A.C. 399.
“The chief characteristic feature of native law is its flexibility … the most important incident of tenure which has crept in and become firmly established as a rule of native law is alienation of land “:
Webber, J., in Brimah Balogun and Others v. Saka Chief Oshodi (1930), 10 N.L.R. 36, p. 53.
The effect of section 87 (1) of the Courts Ordinance (text in judgment infra) is that where (as in this case) all the parties are natives the native customary law shall be deemed applicable unless it is shown that it should not be.
The land in question had been until recently farming land, but a suburb of Accra began to develop there and a scramble to sell and buy ensued. In origin it belonged to the Korle House and the Korle priest was the caretaker. The Korle House is part of the Gbese Stool, which is part of the Ga State. The questions arising out of the transactions made by one or another of those three or by families owing allegiance to them were principally as to who could alienate land out and out and in what circumstances, having regard to the nature of the tenure of the land and to rights of families or members in occupation. In particular three families claimed rights of absolute ownership and freedom of alienation under old grants, but the trial Judge found against them. In regard, however, to one of them (namely the Odoi Quao family) when in 1933 Government acquired some land compulsorily in their holding, neither the Ga Manche nor the Gbese Manche put in a claim, and the Korle priest testified that that family were the owners; and when in 1950 Government wanted to put up an electrical testing box on the land, the Gbese Manche wrote that he had no claim over the land, and the Ga Manche wrote that the head of that family was the owner of the land.
The numerous cases concerning the land in question were consolidated. The findings of the trial Judge were that any member of the Gbese Stool could farm a portion of the land, that the Korle priest could make grants of land not so used to members of the Stool for residence or trade, that a pledge or lease in customary law to a stranger to the Stool needed the consent of the Gbese Manche, but that outright sales or mortgages in English form with a right of sale needed the consent of both the Gbese Manche and the Ga Manche, the Korle priest being the third controlling authority with them, and that such sales could not be approved unless a Stool debt was in existence without the fault of the individual and unless the principal members of the family involved had consented.
The main criticism on appeal was against the finding that Stool land could never be sold outright except to satisfy a Stool debt and the finding that the Korle priest could only effect an outright sale with the prior consent of the Gbese Manche and the Ga Manche. The questions argued on appeal were:-
(1) whether Stool lands within the area in question could be alienated and in what circumstances;
(2) if they could be, whether it was a complete severance or whether there was a reversion in the Stool;
(3) who was the proper authority to alienate Stool lands, and what the position was of the Korle priest;
(4) whether there could be any relaxation of the native customary law or usage;
(5) whether on the facts of this case equity and good conscience required that the Court should hold that there should be, or in fact had been, a relaxation.
There was evidence that the Gbese Manche had certified some conveyances by the head of the Atukpai family, and it was sought to build an argument on that evidence. The Kotey family, also, claimed a right to alienate.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeals by the Atukpai representative or a party claiming through them; varying the judgment in favour of the Odoi Quao family; and dismissing the appeals relating to the Kotey family) that:
(1) Native law is flexible; alienation of land has become firmly established as a rule of native law; the existence of a Stool debt was not a necessary condition to the sale of Stool land.
(2) If the proper authorities with the proper consenting parties make an outright grant without any reservations, they cannot say later that reservations of some kind were implied.
(3) The Korle We or House are co-owners with the Ga and Gbese Stools, and the prior consent of all three is needed for outright alienation, which also needs publicity, for they cannot alienate Stool land without obtaining the consent of subjects of the Gbese Stool in occupation or of strangers who have properly been granted some interest in the land.
(4) Where, as in this case, all the parties are natives, the existing native law shall, in view of section 87(1) of the Courts Ordinance, be applicable, and the onus of showing that it should not be applied in the present cases has not been discharged; the custom requiring alienation by outright sale to be made jointly by the three controlling authorities fetters each of them and thereby safeguards the rights of generations unborn.
(5) The equities in these cases are more on the side of the subjects of the Stool than in favour of speculators who have ignored the nature of the title they sought to acquire, and this was not a case in which it would be right to implement the actions of persons who have purported to sell as a fee simple a usufruct in land amounting to customary occupation of Stool land.
(6) There had been no absolute grant to the Atukpais; they could not convey any land, and the fact that the Gbese Manche had certified conveyances made by the head of the Atukpai family gave them no authenticity as they were null and void.
(7) As regards the Odoi Quao family, a grant had properly been made to them more than a century before, and the Manches and the Korle priest having by their conduct acknowledged it to have been an outright grant, could not now be heard to say that there were reservations amounting to a reversion in the Stools.
(8) There was no reason to disturb the finding, based as it was on the evidence, that the Kotey family had only farming rights in the land in their occupation and could not transfer ownership.
Cases cited:-
(1) Amodu Tijani v. Secretary, Southern Nigeria, 1921, 1 A.C. 399, at p. 404.
(2) Sunmonu v. Disu Raphael (1927) A.C. 881, at p. 883.
(3) D. W. Lewis v. Bankole (1909). 1 N.L.R., 82, at p. 105.
(4) Brimah Balogun and Others v. Saka Chief Oshodi, 10 N.L.R. 36, at p. 53.
(5) S. Oshodi v. Brimah Balogun and Others, 4 W.A.C.A. 1, at p. 2; (1936). 2 A .E.R. 1632.
(6) Koney v. Union Trading Co., 2 W.A.C.A. 188. at p. 194. (7) Ferguson v. Duncan, W.A.C.A., 16th May, 1953.
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MAIN JUDGMENT
The following judgment was delivered:
FOSLER-SUTTON, P.
This is an appeal in sixteen out of twenty-five consolidated actions which were tried in the Land Court at Accra before Jackson, J., who delivered judgment on the 31st May, 1951, after a trial lasting about fifteen weeks. The evidence and the judgment are both voluminous but this Court is not unfamiliar with the issues of native customary law and native tenure involved. The appeal concerns a large area of land lying to the north of the town of Accra, which is now being developed as a residential suburb. Until comparatively a few years ago this land was open country of little value. There were a few mud hut settlements on it; it was poor farming land but mango and cashew trees grew on it and cassava farms were dotted about. With the growth of Accra the land in dispute, which is about two square miles in extent, has become very valuable and the evidence shows that when this was realised by those who had, or claimed, an interest in it there was a scramble to sell to those who wished to erect homes, schools and other buildings on the land. In some of the suits, a declaration of title, damages for trespass and injunction were claimed; in others, a declaration of title and recovery of possession.
In his judgment, the learned trial Judge reviewed the historical background of the Ga people, the main facts and the native customary law applicable thereto. Next he considered the interests in land, by the user thereof, of a member of a Stool. As the parties in the several actions claimed title from one or more of the Stools or larger communities before the Court, the trial Judge next considered and determined the interests in the land of those Stools or communities. He then dealt with each separate action, giving judgment therein according to the titles held to be established by the vendors of the parties, being one or other of the Stools or communities. The appeal before us is principally against the learned Judge’s findings as to the main principles applicable to the cases and it would, therefore, be convenient if we follow the same method in deciding the appeal.
The main question which the learned trial Judge had to decide, and we also have to determine, is who are the proper Stools, communities or persons entitled by native customary law to alienate the lands in issue; under what circumstances they may do so and the interests that pass on such alienation. On these matters the trial Judge set out his findings as follows:-
“(a) I find that the lands in dispute are a part of the Ga Stool lands.
“(b) I find that they are a part of the lands which the Gbese Stool subjects enjoy independently of the other divisions or quarters of the Ga State.
“(c) I find that the land immediately prior to the institution of these actions was agricultural land.
“(d) It was agricultural land of a very poor order and very sparsely farmed.
“(e) That each and every subject of the Gbese Stool had an inherent right to farm on un-appropriated land within this area without express permission being required of anyone.
“(f) The right to farm was coupled with an implied right to construct buildings to be occupied and used in direct furtherance of that farming,
“(g) No estate in land is created by making a single farm.
“(h) Land made into a farm and not re-farmed after the normal period required in which it shall be fallow, is deemed once again to be un-appropriated land.
“(i) That the Korle priest as the ‘caretaker’ of these Stool lands may make grants of land to members of the Stool for specific purposes, e.g. to build for the purpose of residence or trade.
“(j) That right cannot be exercised in derogation of a subject’s right to farm, i.e. it can only be exercised on land deemed to be un-appropriated, and that may be, as has been seen, either land not farmed at all, or land that has been farmed and then abandoned.
“(k) That before any member of the Gbese Stool and of which the Atukpai family are members, may deal with land otherwise reference must first be made either to the Gbese Manche, or in some cases to the Gbese Manche and Ga Manche, e.g. mortgage of land by customary law (known as pledges) made to a stranger to the Stool would require the consent of the Gbese Manche; leases in similar circumstances would require the same authority.
“(l) Sales of land outright or mortgages of land in English form, carrying with it the right of sale in certain eventualities can never be made unless first the prior consent is obtained both of the Gbese Manche and of the Ga Manche.
“(m) Such sales can never be approved unless it is first ascertained that:
(i) a Stool debt is in existence;
(ii) that its existence was due to no fault of the individual;
(iii) that the principal members of the family whose lands are involved have consented.”
Before us, the main criticism made was (a) against the finding that Stool land can never be sold outright except to satisfy a Stool debt and (b) the finding that the Korle priest as “caretaker” of the lands may only allot un-appropriated land to members of the Gbese Stool and that outright sales of lands can only be effected by the Korle priest with the prior consent of the Gbese Manche and of the Ga Manche.
These findings are all findings of fact arrived at after a careful review of the evidence, particularly as affecting the Atukpai community, although they apply in general throughout the case. This Court, sitting on appeal, must therefore be cautious in dissenting from those findings unless it is clear that the learned Judge misinterpreted the relevant evidence or the law applicable thereto.
The traditional evidence as to the authorities in control of the land is that originally this control was vested in the Korle family (whose head is the Korle priest) as owners and founders but, in the course of time, the temporal authorities, the Ga and Gbese Manches as representing their respective Stools, became joined with the spiritual authority in this control.
From the evidence and the history of the Ga people it would appear that the Paramount Ga Stool has no private or family land of its own, but, as overlord, it has by usage, the reversion and ultimate control of all Ga lands. As the family of Onomrokor or Korle We (House), the original owners of the land, are subjects of the Gbese Stool, that Stool and all its subjects, by usage and consent, acquired a usufructuary right in the lands. These interests of the Ga and Gbese Stools, carrying with them incidents of protection and control, became a burden on the absolute ownership formerly enjoyed by the Korle We family.
In 1898, the then heads of the Korle family made a declaration, which was attested to by the two Manches, appropriating to themselves a considerable area of land to the north of the land now in dispute as the Korle family property. This declaration of 1898 was considered by this Court in appeal No. 62 of 1947, Ayitey Cobblah, Korle Priest v. Tettey Gbeke and Others. It is now clear from the evidence – before us, and the trial Judge took the same view, that by this appropriation the Korle priest and his house or family did not renounce their rights as – the third member of the controlling authority over the remainder of the Ga Stool lands including the area now in issue, which had, in ancient times, been land of the Korle We or House.
All might possibly have been well if the three controlling authorities had pulled together in performing their functions. Unfortunately, the weakness of human nature overrode principle and so in spite of the Korle having appropriated and defined their own family lands, they from time to time asserted rights over lands outside that area without reference to the Ga and Gbese Stools. There is, also, evidence that the three authorities had from time to time disputed among themselves, some claiming a superior and some a sole right over the lands. It seems that in recent years the Ga and Gbese Stools took no steps to interfere with alienations by the Korle We until the 1947 suit above referred to.
The position was further complicated by the acts of certain occupants of the land, principally the Atukpais represented by Tettey Gbeke II, the Odoi Quao family, the Lutterodt family and the Kotey family who claimed the right to dispose of portions of the land without reference to their overlords, founding such right on a traditional absolute grant from the Stools or one or other of them.
Five main points were argued before us:-
(1) Can the Stool lands within the area of this dispute be alienated and if so in what circumstances?
(2) Assuming they can be, is it a complete severance or is there a reversion in the Stool?
(3) Who is the proper authority to alienate Stool lands, and what is the position of the Korle priest?
(4) Can there be any relaxation of the native customary law or usage?
(5) On the facts of this case does equity and good conscience require that we should hold that there should be, or in fact has been, a relaxation?
Before proceeding further it may be as well to set out the character of the land tenure applicable, for the main relevant findings of the learned trial Judge are, we think, in accord with it.
In Amodu Tijani v. Secretary, Southern Nigeria (1), the Privy Council set out the opinion of Rayner, C. J., in a Report on Land Tenure in West Africa as substantially the true one, namely:-
“The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community ‘or family He cannot make an important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger. This is a pure native custom along the whole length of this coast, and wherever we find, as in Lagos, individual owners, this is again due to the introduction of English ideas.”
About six years later, in Sunmonu v. Disu Raphael (2) the Privy Council in reaffirming the above passage, observed,
“Their Lordships are aware that it is possible by special conveyancing to confer title on individuals in West Africa, but it is a practice which is not to be presumed to have been applied, and the presumption is strongly against it. Prima facie the title is the usufructuary title of the family, and whoever may be in possession of the legal title holds it with that qualification.”
The learned trial Judge held that Stool lands cannot be sold outright except in satisfaction of a Stool debt. While it is right to say that he had evidence to that effect before him, that finding appears to us to be far too sweeping to be upheld. Reference to the works of Redwar and Casely Hayford shows that outright alienation of land, although originally unthought of, has for many years past come to be recognised by native usage. There are, further, the obiter dicta of Osborne, C. J., in a Lagos case of 1909, D. W. Lewis v. Bankole (3) where on a question whether by native customary law a family house could be let or sold he observes,” According to the Lagos Chiefs, the present custom is that it can be let with the consent of all branches of the family but cannot be sold. The idea of alienation of land was undoubtedly foreign to native ideas in olden days, but has crept in as the result of contact with European notions and deeds in English form are now in common use”. And Webber, J., observed twenty-one years later in Brimah Balogun and Others v. Saka Chief Oshodi (4),
“The chief characteristic feature of native law is its flexibility-one incident of land tenure after another disappears as the times change-but the most important incident of tenure which has crept in and become firmly established as a rule of native law is alienation of land”.
In our opinion the existence of a Stool debt was not at the times material to this inquiry a necessary preliminary condition to the sale of Stool land.
As to the second question, if the proper authorities with the proper consenting parties purport to make an outright grant without any reservations, we consider that they cannot later be heard to say that reservations of some kind were implied. It is true that if the grant is made to a subject of the Stool, that subject, by virtue of his personal allegiance to the Stool, owes it duties and services, but that is a matter of personal allegiance and does not arise out of the grant. If the grant is to a stranger or if the land is eventually conveyed or transferred to a stranger who owes no personal allegiance to the Stool, it appears to us that he holds the land without any restriction and without a reversion to the Stool as the Privy Council observed in S. Oshodi v. Brimak Balogun and Others (5).
On the third question as to who is the proper authority to alienate these lands, the learned trial Judge found that the Korle priest as the caretaker of the lands may make grants of lands to members of the Stool for specific purposes, that is, to farm or to build for the purpose of residence or trade. He also held that this right can only be exercised over land which is deemed to be unappropriated, but that if the land is sought to be mortgaged or sold outright the prior consent of the Gbese Manche and the Ga Manche must be obtained. It was argued before us on behalf of the Korle priest that he also is a necessary consenting party to the validity of any such sale and whether lands sought to be sold are vacant lands or lands in the occupation of members of the Stool. Against this contention the appellants have urged strongly that the evidence before the Court reveals great confusion as to the exact position of the Korle family and priest in relation to the lands in issue and that he is not a necessary party to such alienations.
Several passages in the judgment declare, however, that the three Stools, Ga, Gbese and Korle (the Korle sometimes in the judgment being referred to as a Stool and sometimes as a We meaning House) are “co-owners”, “joint-beneficiaries”, “Partners” or again as “allodial owners” of the land by customary law.
On a careful consideration of all the evidence we consider that the Korle We or Stool are co-owners with the Ga and Gbese Stools. It is therefore a correct finding and one supported by the evidence that the prior consent of the three entities, Ga, Gbese and Korle, is necessary to an outright alienation of the lands in dispute.
Whilst therefore we are unable to agree with the learned trial Judge that native custom and usage prohibits a sale of Stool land except under the necessity of a pressing Stool liability, such as debt, we are in agreement with him that in the cases before the Court such sale can only be effected with the prior concurrence of the three entities, Ga, Gbese and Korle, who jointly own the land and that publicity is necessary in such transactions, the publicity being a safe guard provided by native customary usage against the clandestine disposal of land without the knowledge of the necessary parties.
It is, of course, fundamental that the three controlling authorities cannot alienate Stool land without obtaining the consent and concurrence of individual or families, being subjects of the Gbese Stool who are in occupation or of strangers who have properly been granted some interest, be it a farming occupation interest, in the land.
Turning now to the groups or communities who claim title to portion of the land and a right to transfer title outright to others of the parties in the several suits which were consolidated for trial but separated for judgment the first group are the Atukpais. They assert a right, as absolute owners, to the major portion of the lands in dispute by virtue of a grant, according to their tradition, made over a hundred years ago by the Stools to an elder of Atukpai who became caretaker of the lands and gave licences to people to occupy the land. The alleged outright grant was denied by the three Stools, who significantly were represented by the Korle priest in some of the actions before the Court.
The learned Judge, after a careful review of the relevant evidence, found emphatically that no such grant had ever been made, a finding with which we are in full agreement. He was satisfied, however, that individual persons of the Atukpai quarter of Gbese and their descendants as families bad for fifty years or more occupied farms and a few villages on the western aide of the land in dispute along what is now the Nsawam road. He further held that these individuals and families were in occupation under their general right as subjects of the Gbese Stool to farm and reside on Gbese Stool land. It is clear as stated in Amodu Tijani’s case, supra, that those rights of occupation are hereditable according to native custom. The rights enjoyed by the Atukpais as Gbese subjects are those set out under heads (a) to (A) in the judgment of the Court below and which are enumerated earlier in this judgment.
The learned trial Judge held, and we are in full agreement, that the Atukpai Stool constituted as such with Nii Tettey Gbeke as its head or Dsasetse could not effectively convey in fee simple or by outright grant any interest in such land, as individual members or families alone had the usufruct of localities actually occupied by them consistently with the rights of other subjects of the Gbese Stool.
Mr. Ollennu for the Atukpais has urged the Court to revene this finding. He has drawn attention to several instances where the heads of the Atukpais have purported to act in respect to land which individual Atukpais have occupied as if the title were vested in the Head of the Atukpai as a community. It seems to us that the Atukpais, being an apparently coherent unit, have taken advantage of the dissension between the Ga and Gbese Manches and the Korle priest over the control of these Stool lands, but this course of conduct by the Atukpais is completely unwarranted and was not left so unchallenged as to justify us in reversing the findings on this important aspect of the case. As the learned Judge observed, “the mere fact that the Atukpais had persistently sold plots of land whilst its ownership was in issue lends no additional weight to the Atukpais’ case.”
It follows that the appeals in suits Nos. 11/1943, 15/1943, 2/1944, 7/1944, 13/1948. 14/1948. 18/1948. 5/1949, 33/1950, 38/1950, 39/1950, 46/1950, 47/1950 and 7/1951, wherein the appellant is the Atukpai representative or a party claiming through them, are dismissed. In this context we would observe that some of the appellants were successful defendants in whose favour the plaintiffs’ actions were dismissed in the Court below. They apparently appealed because they thought certain general findings in the judgment might adversely affect them in the future.
As to the claim of the Odoi Quao family, the learned Judge found that this family held a large area of land depicted on the plans along the eastern side of the land in dispute up to and including the village of Nima and having as its western boundary the Mamobi Djor or water course. He held however that the grant to the founder of the family was only to occupy and farm the land in accordance with native custom and not a grant as exclusive owner giving them the right to alienate the land to strangers.
We agree with the finding of the learned Judge as to the restricted area of land which the Odoi Quao family are entitled to under the grant but in our view the learned Judge failed to pay due regard to several matters in evidence which indicate the nature of this family’s tenure.
When the Government in 1933 sought to acquire compulsorily a long strip of land which was part of their holding, this family put in a claim for compensation as owners in possession. Neither the Ga Manche nor the Gbese Manche put in a claim; on the contrary the then Korle priest testified in Court in support of the Odoi Quao family as owners and. on that basis the Court awarded them full compensation. In our opinion this indicates very strongly that the three controlling authorities considered that they had no reversionary rights in the land for which they could claim compensation. Furthermore, the Gbese Manche wrote to the District Commissioner that he had no claim over the Odoi Quao land and, in the year 1950 when it was intended to erect an electrical testing box at Nima village on the land, the Ga Manche, in answer to an inquiry as to who was the proper person to negotiate with, wrote to the District Commissioner giving the head of the Odoi Quao family as owner of the land.
According to the finding of the trial Judge this occupation originated in a grant properly made a hundred or more years ago, and it is clear to us that whatever may have been the terms or reservations of the original grant. the Manches and the Korle priest by their conduct have acknowledged it to have been an outright grant and they cannot now be heard to say that there were reservations amounting to a reversion in the Stools.
So far as affects suit No. 7/1944, therefore, the judgment of the Court below is varied so as to declare that the Odoi Quao family are owners by absolute grant of the area of their claim up to the eastern bank of the Mamobi Djor or water course.
The Kotey family who are plaintiff-appellant in suits Nos. 1/1944 and 23/1944 complain as to the finding of the Court that they had failed to establish that the land to the south of the Ring Road claimed by them was granted to their ancestor and further that they have only farming rights and that the area of land held to be in their occupation cannot be alienated by transfer of their farming rights without the prior consent of the Gbese Manche or alienated by transfer of ownership without the consent of the Ga Manche and Gbese Manche. As to the area of land found for them this is a finding of fact on the evidence which we have no reason to disturb. As to the restriction on alienation this is in accord with the native customary law which we have upheld. In our opinion the concurrence of the Korle priest as well as the Manches is a prerequisite to alienation. The appeals in the two suits mentioned are therefore dismissed.
As to whether there can be a relaxation of the native customary law or native usage as to the alienation of Stool land and whether in the cases before us it would be equitable to upset purchases of land which have been followed in many cases by the erection of substantial buildings thereon, section 87(1), formerly section 74, of the Courts Ordinance, and formerly section 19 of the Supreme Court Ordinance, provides:-
“Nothing in this Ordinance shall deprive the Courts of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any native law or custom existing in the Gold Coast, such law or custom not being repugnant to natural justice, equity or good conscience … ” Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly, but without derogating from their application in other cases, in causes and matters· relating to the tenure and transfer of real and personal property … “
Interpreting the above Court pointed out in Kotey v. Union Trading Co. (6) and in Ferguson v. Duncan (7) (unreported) that where, as in this case, all the parties are natives the native customary law shall be deemed applicable and the onus is upon the party who opposes the application of such native customary law to satisfy the Court that it should not be applied.
Such native law or custom, as the learned Judge held, must be not the native law or custom or usage of ancient times, but existing native law or custom.
Bearing in mind the community of vested interests of a Stool and its subjects in Stool land, there is a very heavy onus upon a native who would maintain that a native custom as to the tenure of land which in this case requires alienation by outright sale to be made jointly by the three owning and controlling authorities does not now exist and that it is repugnant to natural justice, equity and good conscience. That onus was not discharged. It is a custom that fetters each of the joint owners and thereby safeguards the rights of generations unborn. In our opinion this is not a case in which the Court in the exercise of its equitable jurisdiction should implement the actions of persons who have selfishly and without title purported to sell as a fee simple a usufruct in land amounting to occupation of Stool land under native customary tenure. It seems to us that the equities are more on the side of the subjects of the Stool than in favour of the all-too-eager speculator who has ignored wilfully or otherwise the true nature of the title he sought to acquire. In this context the learned trial Judge comments on the building activity that persisted after most of the actions were instituted. It appears that in the year 1947 the Gbese Manche opened what is described in the judgment as “a kind of unofficial Deeds Registry” and that for a small consideration he certified as a good title two deeds of conveyance, both bearing date the 5th March, 1946, relating to plots within the land in dispute wherein is recited as a root of title, a prior deed of conveyance from Nii Tettey Gbeke as Dsasetse of the Atukpai Stool. It has been urged on behalf of the Atukpai appellant that these two certificates (and the evidence suggests that more may have been issued by the Gbese Manche) are admissions that the Atukpai Stool are absolute owners of the land claimed by them and that they are entitled to make outright alienations.
In rejecting this submission the learned Judge referred to the strained relationship between the three controlling authorities at a time when motives of self-interest apparently outweighed their obligations to each other and pointed out that these certificates were issued ex post facto.
In our opinion since the only rights in the land of any member of an Atukpai family at the material time were rights of the same degree as that of any other subject of the Gbese Stool, a conveyance by a so-called Atukpai (Otuopai) Stool alleged to be constituted with elders and councillors is an entity to which, upon the conclusions we have reached, land was never granted. That entity therefore could not convey any land or otherwise deal with it. The recited conveyances by Nii Tettey Gbeke for the Atukpai Stool are null and void, and being a nullity they cannot be authenticated.
It was pointed out by the trial Judge that the Atukpai as families or as individuals, as some old people testified, had never consented to their usufructuary interests being dealt with by Nii Tettey Gbeke and his group. In these circumstances to hold that these documents had the effect of even transferring rights of occupancy might well do grave injustice to the individual rights of Atukpai people.
But although these certificates are inoperative to authenticate a transaction which is itself void, the Gbese Stool, and the Ga Stool also, if it is bound by any of these certificates and as to which we are not called upon to express an opinion, may, as joint owner in whom there is a vested right or interest in the land, be held to have waived or abandoned that right. The certificates do not, however, give validity to the conveyances because the Korle priest, as caretaker and acting for his House or family, a necessary party to a sale, is unaffected.
We have given the question of costs of these appeals most anxious and careful consideration and have reached the conclusion that, having regard to the behaviour of the Stools as between themselves which in our view did nothing to discourage litigation and of the fact that they were collectively represented by one counsel on the appeal, the fairest order to make is to leave each party to bear its own costs in the following suits, namely Nos. 11/1943, 15/1943, 1/1944, 2/1944, 7/1944, 23/1944, 13/1948, 14/1948, 18/1948, 5/1949, 33/1950, 38/1950, 39/1950, 46/1950, 47/1950 and 7/1951.
Further as to suit No. 7 /1944, as the Odoi Quao family have succeeded in varying the judgment on one issue, but have failed as to the other issue which they raised, it is ordered that each party shall bear its own costs.
Appeals by the Atukpai representative or a party claiming through them dismissed; judgment varied In favour of the Odoi Quao family; appeals relating to the Kotey family dismissed.
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