OLLENNU J. This is an appeal from a judgment of the Native Court " A" of New Juaben, Koforidua, delivered on February 15, 1957, in favour of the plaintiff, for a declaration of his title and damages for trespass, to a piece of land situate at Koforidua. The judgment is detailed and explicit.
Learned counsel for the defendant attacked the judgment on two main grounds: (1) that the judgment is against the weight of evidence and, (2) that the plaintiff was estopped by reason of his laches from making the claim. On the question of weight of evidence, learned counsel submitted that stool lands of Koforidua are acquired by lease from the stool; that it is the caretakers of the stool lands who know the persons to whom grants have been made and the plots so granted, and therefore the Native Court misdirected themselves in disregarding the document tendered by the defendant, which was a lease granted to him by the New Juaben Stool of the land in dispute. This argument is misconceived.
The first defendant is a non-subject of the New Juaben Stool. He bases his right to occupy the land upon a sale of it made to him in 1932 by the co-defendant. He says that it was not until December, 1948, that he took a lease of it, this being contained in the document to which I have just referred. Both the plaintiff and the co-defendant are subjects of the New Juaben Stool. The case each of them put up is that by native custom a subject of the New Juaben Stool acquires title to a portion of the stool lands by cultivation of the virgin forest. The Native Court accepted that as a correct statement of .the native custom. That custom as to the acquisition by a subject of title to stool land is so well established, and recognised in decisions of this and higher courts, that I would have had no hesitation in setting .the judgment aside had the Native Court held otherwise.
The title which a subject so acquires in stool land is the usufruct, not the absolute ownership which is vested in the stool. By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of the stool so long as the alienation carries with it an obligation upon the transferee to recognise the title of the stool and to perform the customary service due to the stool from the subject occupant. \Vhere the transferee is a stranger, i.e., a nonsubject of the stool, it is customary for the stool to commute the customary services which so devolve upon the transferee to a
