DONKOR v. ASARE AND OTHERS
1960
HIGH COURT
GHANA
CORAM
- OLLENNU J
Areas of Law
- Contract Law
- Property and Real Estate Law
1960
HIGH COURT
GHANA
CORAM
AI Generated Summary
The plaintiff, an established legal practitioner and traditional authority, acted according to customary law when approached for land by the defendants. The key issues were whether the plaintiff had proved title and whether the defendants were mere licensees. The court held that the plaintiff did not prove title to any identifiable land and that the transaction did not conform to customary law, rendering it void. The appeal was dismissed.
JUDGMENT OF OLLENNU J.
(His lordship referred to the facts and continued).
The occupant of a stool and the traditional elders of the stool are the repositories of the tradition and customary law of their state; it is therefore expected that they should always act in conformity with the customary law. Again, apart altogether from being an occupant of a stool, Nana Kwadade II, known in his private capacity as Mr. Ofei Awere, was, before his enstoolment, an outstanding legal practitioner with considerable knowledge and experience of the customary law. It is not surprising therefore, that when the defendants, subjects of the stool, approached Nana Kwadade II and his elders for a grant of a portion of the stool land, the Omanhene and his elders i.e. the stool, did not by-pass the family in [p.189] possession of the land to make the grant, but rather, that they in turn applied to the family to make the grant direct to the defendants; this step taken by Nana Kwadade II and his elders is in conformity with the customary law of our land tenure: see Ohimen v. Adjei and Another (2 W.A.L.R. 275) and Wutor v. Gyebi (unreported).
Only one ground of appeal was filed and argued; it is that the judgment is against the weight of evidence. Under this ground it was submitted by counsel as follows:
“(1) that there was sufficient evidence in proof of the plaintiff’s title, and consequently the Native Court misdirected itself in refusing to grant the plaintiff the declaration of title he sought even if it could be said that he is not entitled to an order for recovery of possession, and
“(2) that the defendants are mere licensees without any interests in the land, and could be ejected at will, and therefore the Native Court was wrong in holding that the notice to quit given to them was defective.”
In my opinion the second point made by counsel is a question of law, not weight of evidence. I am further of the opinion that the first point also involved important principles of customary law.
Taking counsel’s first submission the question which arises is: did the plaintiff prove title to any land, and if he did, to what land? For his title the plaintiff relies upon sale by customary law. Among the essentials of a sale of land by customary law are:
(1) identification of the area of land sold, and
(2) placing the purchaser in possession of the area sold in the presence of owners of the lands which form boundaries with the land being sold to ensure that no one else’s land is