LAMPTEY ALIAS NKPA v. FANYIE AND OTHERS
1989
SUPREME COURT
GHANA
CORAM
- SOWAH C.J.
- ADADE
- FRANCOIS
- WUAKU JJ.S.C.
- OSEI-HWERE J.A
Areas of Law
- Property and Real Estate Law
- Contract Law
- Evidence Law
- Civil Procedure
1989
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Kwabena Fanyie, Kojo Mama, and Yaw Donkor, tenant cocoa farmers on forest land in Ghana’s Central Region, sued their landlord, Lamptey, to declare their tenancies abusa and to compel documentation reflecting abusa terms (two-thirds to tenants, one-third to landlord). Lamptey asserted the tenancies were abunu with equal sharing. The High Court dismissed the tenants’ claims; the Court of Appeal reversed. On further appeal, the Supreme Court, per Adade J.S.C., with Sowah C.J., Osei-Hwere J.A., and Wuaku J.S.C. concurring, allowed Lamptey’s appeal and restored the High Court’s judgment. The majority held the tenancy character was a factual issue; plaintiffs bore the burden of proving an abusa agreement, but evidence—including years of equal sharing—showed abunu. A purported abusa receipt lacked evidential value, and departures from custom are not per se unenforceable. François J.S.C. dissented, finding the plaintiffs’ evidence persuasive and criticizing the trial judge’s evaluation.
JUDGMENT OF ADADE J.S.C.
Adade J.S.C. (read the first judgment at the invitation of Sowah C.J.). The defendant appellant is the owner of a large tract of forest land which he acquired by purchase from the Andow stool, in the Central Region. It seems that he is not the sole owner of the land. He lives on the land as a part-owner, and manages it for and on behalf of himself and a syndicate. He gives out portions of this land to tenants for farming on terms. The second plaintiff says that the "defendant has about 300 grantees." The three plaintiffs in this case are some of his tenants. All three acknowledge the defendant as their landlord. Each has planted cocoa on the portion he took. They claim that they took their individual holdings from the defendant on abusa terms, i.e. that each was entitled to two-thirds share of the proceeds from his farm, the defendant taking the remaining one-third portion. The defendant, on the other hand says that the proceeds were to be divided equally between him and each tenant—the tenancies were abunu tenancies, not abusa tenancies.
The plaintiffs sued for a declaration that they are abusa tenants. They are also asking that the court should enjoin the defendant to give them documentary titles of their holdings, spelling out the abusa terms.
At the close of pleadings, the parties settled the issues for trial as follows:
[p.289]
“1. Whether the land was granted to the plaintiffs on abunu system or on an abusa system.
1. Whether the parties have been sharing the proceeds on an abunu system or on an abusa system.
2. Whether the document to be prepared ought to be based on an abunu or on an abusa tenancy.
3. Whether [the plaintiffs are] entitled to [their] claim.”
The High Court, Cape Coast which heard the case in the first instance resolved all the issues against the plaintiffs, and dismissed their claim. On appeal, the Court of appeal reversed the decision. The defendant now comes to this court to say that the High Court was right and that its decision should be restored.
The defendant’s complaint against the Court of Appeal is summed up in his two main grounds of appeal as follows:
"(a) It was an error of law when the court held that one cannot contract out of customary practice and usage in this case and that such a contract is unenforceable.
(b) The court misdirected itself on the question of the burden of proof."
To take ground (b) first, on general principles it is the duty of a plaintiff to prove his