NII KPOBI TETTEY TSURU III v. NII AGO SAI & ORS

J U D G M E N T

ATUGUBA, JSC:

The sole issue arising in this appeal is who owns the allodial title to Ogbojo lands in Accra? Is it the Labadi Stool or the Anahor and Dzirase families of Ogbojo village?

In approaching this question one must bear in mind the intricacies of customary land tenure in Ghana. The need for caution in these matters is forcefully stated in holding 2 of the headnote to Bimpong v. Bawuah (1991)2 GLR 20 C.A, as follows:

“(2) In this country, land might for generations be in the occupation of persons who were not owners but who might have rights of occupation as licensees or customary tenants or under other conditions known to customary law, the reversion nevertheless being in the owner. And the owners were willing to allow such occupation so long as the occupier did not make any adverse claims to the land. Hence, the mere occupation of land for long periods was not conclusive evidence of ownership; and it was therefore essential that the specific nature and origin of the tenure of occupiers of land should be determined in all cases. In the instant case, the trial judge should consequently have considered the evidence of occupation with caution and should also have made proper findings of fact as to the nature of the plaintiff’s interest in the Asakraka and Ntabaanu portions of the Besease lands, especially in view of the defendant’s claim that the land was given to his ancestors, which claim the plaintiff contested. However, apart from stating that the plaintiff had exercised acts of ownership over the land, the learned trial judge did not make any findings on the nature and origin of the plaintiff’s possession even though he made positive findings of fact, supported by the evidence on record, as to the settlement of the defendant’s family on the land. Furthermore, there was no certainty about the plaintiff’s title to the land or as to the identity of the portions of the land he claimed. Thus the most that could be said of the nature of the plaintiff’s interest in the Asakraka and Ntabaanu lands was that he was entitled to stay on those portions with the leave and licence of the defendant’s family, and that they (the plaintiff and his family) were entitled to live there as long as they recognised the title of the defendant.”

The appellant claims allodial title to the land by reason of settlement whilst the respondent claims the same by conquest. It is trite law that both modes are legitimate customary means of acquiring such allod