ASHIEMOA v. BANI AND ANOTHER

JUDGMENT OF OLLENNU J.

(His lordship dealt with, and dismissed, a preliminary objection to the appeal, and continued:--)

Now the issue which was tried by the Native Court involved: (1) a question of fact, and (2) a question of law, i.e. native custom.

The plaintiff claimed title to the land on the grounds that it was granted to his ancestor many years ago, that the latter and his successors up to date had been in undisturbed possession of the land, exercising full acts of ownership, including the felling of palm trees. [p.132] In support of his case the plaintiff led evidence that, in addition to their possession and occupation, his family had successfully resisted any attempt made by the co-defendant, the Chief of Kpandu, and other persons, to interfere with their ownership, possession and occupation of the land. One such resistance evidenced was that, while the plaintiff was away from home, the co-defendant's stool purported to grant a portion of the land to the Evangelical Presbyterian Church, but as soon as the plaintiff returned home and discovered this, he immediately took steps, and ejected the Church from the land. The plaintiff also produced evidence of suits he has successfully prosecuted and defended in respect of the land. These facts, namely possession and occupation of the land, and the exercise of ownership by the plaintiff's family up to date, were admitted by the co-defendant and his witnesses. Further, the felling of palm trees in that part of the country is a right vested solely in the owner of the land.

The co-defendant's defence admits that the plaintiff and his ancestors have occupied the land for a hundred years or more. The defence avers, however, that since the land has now become outskirt land to the town, by native custom it has ceased to be the property of a subject, individual or family, and has become absolutely vested in the stool for all purposes, namely, full title - ownership, coupled with possession and occupation. The only interest left to the plaintiff's family in the land is the right to remove growing things, or structures on the land. The second defence witness went farther, and said that the custom (that the rights of the subject in stool land ceased the moment the town extended to that land, and it became outskirts land vested in the stool) was created by a bye-law made by the stool. No such bye-law was produced to the Native trial-Court, and none was produced to the Native Appeal Court.

Upon the admission o