COUSSEY P. This is an appeal from a judgment of the Land Court, Cape Coast, affirming a decision of the Ajumako Native Court " B " of Ajumako in the Western Province, allowing the plaintiff's claim for a declaration that the defendant was entitled to exact from the farming tenants on whose behalf the plaintiff sued, being strangers to the defendant's stool, a fixed share or part amounting to one-third only, known as abusa, of the fruits of farms cultivated by such farmers on the Odoben Stool lands. The plaintiff also sought for and was granted an order restraining the defendant from demanding from such farmers possession of one-half of such farms, by division, in contravention of the original agreement between the said farmers and the defendant's stool and in contravention of the native customary law, and an order that the defendant should execute a document setting out the agreement between the parties in terms of the plaintiff's claim.
It is a common form of tenure throughout the country for a landowner who has unoccupied virgin or forest land, which he or his people are unable to cultivate, to grant the same to a stranger to work on in return for a fixed share of the crops realized from the land. In such a case the tenant-farmer, although he has no ownership in the soil, has a very real interest in the usufruct of the land. The arrangement may be carried on indefinitely, even by the original grantee's successor, so long as the original terms of the holding are observed.
It is not in dispute that these tenant farmers were granted their lands some fifty years ago for the cultivation of cocoa by the defendant's predecessors on the Stool of Odoben.
The plaintiff farmers claim that grants were made to them on the one-third, or abusa, system and that it was only about five years before the date of the action (1954) that the defendant, exerting pressure on the tenant farmers, had altered, or attempted to alter, the terms to an actual division of the mature cocoa farms into two, the farmer to possess one-half as a share-cropping tenant and the defendant's stool t<> possess the remaining one-half as owner.
The defendant maintained that the latter was the true and original arrangement; that the abusa or one-third arrangement was unknown to the Odoben Stool and that the arrangement had always been for division of a farm into equal moieties, the stool, the landlord, taking one-half, this being known as the ebuenu system.
The Native trial Court observed that
