MENSAH v. BLOW

This is an appeal from a decision of the High Court, Cape Coast, given in its appellate jurisdiction dated 26 February 1964 (unreported), setting aside a judgment dated 30 December 1960, given in favour of the plaintiff-appellant (hereafter called the appellant) by the magistrate of the Local Court of Komenda, in which he upheld the claim of the appellant to ownership and possession of a small piece of farm land known as "Kotokuom" situate at Bisease in the Central Region of Ghana, and directing that judgment be entered rather in favour of the defendant-respondent (hereafter called the respondent) Ekua Blow for possession of the said piece of farmstead.

The main question arising on this appeal is whether a licensee, who has been permitted according to custom to occupy and use a piece of another person's ancestral land and who in fact has enjoyed an unfettered occupation and use of portions of that land, could rely on such leave and licence as a defence to a claim by the true owner or lessor or his descendants to exercise their natural rights of ownership or possession over portions of such an ancestral land not actually farmed upon or specifically reduced into effective use or occupation by the licensee at custom. In other words, according to customary practice, can an owner of land over which he has permitted a licensee to live and farm exercise his undoubted right of ownership or use of portions of this land contemporaneously with the right of the licensee to live on and use those portions of such ancestral land which have not been specially allocated to or appropriated to actual use by the tenant or licensee, or is the original grantor or his descendants' right to possession or to occupy and use this land excluded entirely because of the subsistence of the license?

[p.426]

At the date of the proceedings in the Local Court at Komenda, the appellant's claim being one of damages for trespass, and the defence being that the land on which the disputed farmstead was cultivated was a portion of the respondent's ancestral land, ownership or title was thereby indirectly put in issue, and the court should be satisfied that the appellant had discharged the onus which lay on him of demonstrating beyond reasonable doubt that the title to the disputed land or farmstead was in him or his family.

What is in dispute between the appellant and the respondent was which of them is presently entitled to possession of that part of the land on which lies the disputed far