1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
Jackson, J resolved a dispute over cocoa farms on Adawsena stool land between Odikro Ntiamoah Kofi and farmers led by Kweku Sesu. Although the written agreement permitting cultivation under the abusa custom was lost, the court admitted oral evidence establishing that upon farm maturity one-third of the trees would be transferred to the stool holder and two-thirds retained by the farmers. Defendants invoked an earlier arbitration by the late Omanhene Frempon Mansu II and elders as a bar to suit. The court held the purported award non-binding under customary law due to the absence of gontuadzi and post-award aseda reimbursement signifying acceptance, doubt about majority assent among arbitrators, and a disqualifying conflict of interest because the Omanhene ordered payments to himself. Addressing arguments under the Native Authority (Colony) Ordinance, the court interpreted "occupation" as actual occupancy and found revenue obligations arise only after conveyance, making Kofi the proper plaintiff. The court declared Kofi entitled to a one-third share of all matured farms, including the fourth defendant by conduct, and taxed costs.
Judgment :
On the 21st April, 1948 Ntiamoah Kofi issued a writ out of the Native Court of Akim Kotoku suing on behalf of himself and of the Oman of Adasena as against Kweku Sesu and six others:
"one-third share of cocoa trees in farms cultivated respectively and individually by the defendants herein on the plaintiff's Stool land at Adawsena according to the terms of agreement of "abusa system" made between the parties herein some 18 to 20 years ago at a place commonly known and called "Adenkyensu" bounded on each side by forest with respective boundaries also formed between the defendants herein indicating each defendant's farm."
The case was transferred to this Court by an order made on the 10th August, 1948. Counsel were engaged by all parties and the trial proceeded on the footing that the claim as drafted in the Native Court was one which sought a declaratory judgment as to the rights of the parties.
It was established that some years before the plaintiff became enstooled as the Odikro of Adawsena that the defendants had obtained permission from their predecessor in title to cultivate cocoa on land occupied by the Adawsena Stool, of which the plaintiff is the present holder and who owes allegiance to the Omanhene of Akim Kotoku.
The agreement which had been reduced into writing, was not available to be given in evidence and in this respect I accepted the evidence of Kweku Sesu that this document was delivered by him to the late Omanhene of Akim Kotoku and that it has not been seen since. I permitted oral evidence as to its contents and there is no real dispute other than that it granted to the defendants the right to farm upon Adawsena Stool land upon the system known to custom as "abusa". I am satisfied further that the limits to which the defendants were restricted were without any restraint whatsoever.
The custom of "ebusa" is that in exchange for the permission to cultivate the land the tenant will pay to his landlord one-third of the profits made by him.
The defendants cultivated cocoa farms and it was agreed that as the trees became ripe for harvesting one-third of them should be transferred to the use of the landlord and thus the one-third profit or rent derived by the landlord became instead the one-third interest in ownership of all cocoa trees planted by his tenants. These rents or profits were enjoyed by the landlord for many years and the cocoa farms cultivated by the defendants grew in number. It could therefore with strict accuracy