PRELIMINARY MATTERS

KELSEN V. IMPERIAL TOBACCO

FACTS: The plaintiff applied for a mandatory injunction to remove the defendant’s sign which projected to the space
above the plaintiff’s shop.

HOLDING: The invasion of the plaintiff's airspace was a trespass.

REASON: Prima facie, the lease of land includes the lease of the airspace above, and it seems to me also, prima facie,
that the lease of a single-storey ground floor premises would include the lease of the airspace above.

POUNTNEY V. CLAYTON

FACTS: The plaintiff acquired land from a railway company that had previously acquired the land under the Railway
Clauses Consolidation Act, 1845, except the mines which were worked beneath the surface by the defendant. The
plaintiff brought an action against the defendant for working the mines in such a way as to let down the surface
belonging to the plaintiff.

HOLDING: The defendant has not invaded the plaintiff’s rights in any way.

REASON: By virtue of s77, 78 & 79 of the Act, the defendant could have worked out the mines so as to let down the
surface when the surface was owned by the railway company. The plaintiff’s title was derived from the railway company
thus he was in the same position and had no right to support from the defendant’s land.

*There is no doubt that prima facie the owner of the surface is entitled to the surface itself and all below it ex jure
naturae; and those who claim the property in the minerals below, or any interest in them, must do so by some grant
from or conveyance by him, or it may be from the Crown.

(Thus it is observed that ownership of surface of land may be separated from ownership of underground)

LORD BERNSTEIN OF LEIGH V. SKYVIEWS & GENERAL LTD

FACTS: The plaintiff brought an action against the defendants for trespass & invasion of privacy after they took pictures
of his premises from an airplane.

HOLDING: Since the defendants' aircraft had flown several hundred feet above the ground and had not caused any
interference with any use to which the plaintiff put or might wish to put his land, the defendants had not infringed such
rights as the plaintiff had in the air space and had not therefore committed a trespass.
REASON: The rights of an owner of land in the air space above the land extended only to such height above the land as
was necessary for the ordinary use and enjoyment of the land and the structures on it, and above that height the
owner had no greater rights in the air space than any other member of the public.

(Thus the principle of “cuius est solum, eius est usque ad coelum et ad inferos” no longer applies)

BOCARDO V. STAR ENERGY

FACTS: The respondents’ predecessors sunk three wells on the appellant’s land without his knowledge or permission, &
he remained unaware until they respondents started extracting oil. He thus commenced proceedings for trespass.

HOLDING: The appellant’s title extends down to the strata through which the three wells and their casing and tubing
pass.

REASON: The owner of the surface is the owner of the strata beneath it, including the minerals that are to be found
there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else.
There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and
temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the
wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so
deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the
opposite conclusion.

WIAPA V. SOLOMON

FACTS: The plaintiffs belonged to the Nyago family in Akropong and the defendant was Omanhene of Akwapim. The
defendant claimed the land by right of his stool on behalf of all Akwapim, & from the plaintiff’s evidence, it was
unowned.

HOLDING: The plaintiffs were not able to prove that they came into lawful possession of the land.

REASON: In the circumstances, the plaintiffs had to show that they came into lawful possession of the land & reasonably
prolonged occupation would have been enough but this they could not prove.

Any unoccupied land within the recognized boundaries of the subordinate stool land or the family land or private land
would, of course, belong to the subordinate stool, or the family, or the private individual as the case may be but any
unoccupied land not being a part of the land of a subordinate stool or family, or a private person would be attached to
the paramount stool. (No ownerless lands, contiguity)
OHIMEN V. ADJEI

FACTS: The plaintiff sued the defendant for a declaration to title, damages and trespass.

HOLDING: There are four principal methods by which a stool acquires land. They are: conquest and subsequent
settlement thereon and cultivation by subjects of the stool; discovery, by hunters or pioneers of the stool, of
unoccupied land and subsequent settlement thereon and use thereof by the stool and its subjects; gift to the stool;
purchase by the stool.

The stool holds the absolute title in the land as trustee for and on behalf of its subjects, and the subjects are entitled to
the beneficial interest or usufruct thereof and have to serve the stool. The area over the family exercise their
usufructuary right cannot be disposed of by the stool except with express consent of the family. The individual or family
may dispose of his interest (usufruct) to another subject of the stool without consent from the stool, but cannot dispose
of the stool’s absolute ownership (Allodial title) without consent of the stool.

The only title which a subject has in stool land and for which he can maintain an action against the stool is the possessory
title or the usufruct of the land.

Anafo lands owned by Asona stool.

BAIDOO V. OSEI

FACTS: The plaintiff, a subject of the New Juaben stool, brought an action for a declaration to title and damages for
trespass against the defendants. The first defendant who was not a subject of the New Juaben stool based his right to
occupy the land upon a sale made to him by the co-defendant, who was a subject of the New Juaben stool. Both parties
argued that by native custom a subject of the New Juaben Stool acquires title to a portion of the school lands by
cultivation of the virgin forest.

HOLDING: The native Court found that it was the predecessor of the plaintiff and not that of the co-defendant who
cultivated the virgin forest on the land thereby becoming the owner of the land according to native custom (Plaintiff
acquired usufruct).

REASON: The stool is not entitled to grant any interest in stool land over which a subject has acquired a usufructuary
interest without the consent and concurrence of the owner of the usufruct. Consequently, the lease of the land in
dispute by the stool to the first defendant which prima facie was granted without the consent and concurrence of the
plaintiff’s family, the owner of the usufruct, is of no effect and is irrelevant.

The title which a subject so acquires in stool land is the usufruct, not the absolute ownership which is vested in the
stool. By native custom the subject is entitled to alienate his usufructuary title in the land without express permission of
the stool so long as the alienation carries with it an obligation upon the transferee to recognize the title of the stool and
to perform the customary service due to the stool from the subject occupant. Where the transferee is a stranger, i.e., a
non-subject of the stool, it is customary for the stool to commute the agreement of some form or the other, since by
native custom it may require of the transferee the performance of customary services for the stool.

THOMPSON V. MENSAH

FACTS: The plaintiff claimed a declaration of title to a piece of land around Ring Road, Accra, asserting that he acquired it
as a grant from the Korle Webii. The defendant argued that he acquired the land as a grant from the Atukpai (Kotey???)
family and was in negotiation with the Korle Webii to perfect his ownership.

HOLDING: There was no evidence to show that the plaintiff had ever been in possession of the land, thus no matter how
defective the title of the defendant is, his possession is good against all but the true owner.

REASON: Per the principled outlined in the Kokomemle Consolidated Cases, the outright alienation of Kokomemle Lands
cannot be effected except by the prior consent of the Ga and Gbese Stools and Korle We. The plaintiff’s deeds show
alienations of the absolute ownership without the prior consent and concurrence of the Korle We & also without the
consent and concurrence of the Kotey family, who are adjudged to be in possession thereof an ancient grant. The deed is
therefore of no effect.

A usufructuary title can be transferred without the consent of the real owner (allodial title holder) provided the transfer
carries with it an obligation upon the transferee to recognize the title of real owner and all the incidents of the subject’s
right of occupation including the performance of customary services to the real owner.

(Allodial title vested in three stools)

AIDOO V. ADJEI

FACTS: The appellant’s vendors and their predecessors per the evidence had been on the land in dispute located at
Jukwa in Cape Coast for nearly half a century. The first respondent erected a chop bar on the land and when questioned
by the appellant, asserted that he was authorized by the second respondent who was the Omanhene of the Denkyira
traditional area. The appellant however sued the first respondent for a declaration of title and damages for trespass. The
Omanhene and Jukwamuhene claimed that the first respondent’s entry on the land was done with their prior consent
and they claimed title to the land.

HOLDING: The appellant produced good evidence as to his title to the land & should have been adjudged the owner.

REASON: The appellant produced evidence to show that his vendors’ predecessors bought the land outright and they
exercised all the rights of ownership, including alienation. The evidence of long undisputed possession was not the
foundation of their tile; it was used to buttress it.
GOLIGHTLY V. ASHIRIFI

FACTS: The plaintiff (Okaikor Churu family) had been given the right to farm on the Kokomlemle land by the Gbese Stool
& the defendant (Atukpai family) claiming to be the owners of the land sold it to purchasers who started building on it.
The plaintiff thus brought an action claiming a declaration to title and the Korle priest was later joined as a co-plaintiff.

HOLDING: The Atukpai family had no right to the land at all and the Korle family did have a right to it, not by itself alone,
but only in conjunction with the two other stools, the Ga stool and the Gbese stool.

REASON: The plaintiff and her family are possessory (usufructuary) owners subject to the rights of the Ga and Gbese and
Korle stools who are recognised by customary law as being the allodial owners of that land.

*The Korle priest as the caretaker of the lands may make grants of lands to members of the stool for specific purposes,
that is, to farm or to build for the purposes of residence or trade; but this right can only be exercised over land which is
deemed to be unappropriated;

*An outright alienation or sale of the lands can only be effected with the prior consent of the three stools, the Ga, Gbese
and Korle stools, and that publicity is necessary in such transactions, the publicity being a safeguard provided by
customary usage against the clandestine disposal of land without the knowledge of the necessary parties.

*The three stools cannot, however, alienate stool land without obtaining the consent and concurrence of individuals or
families who are lawfully in occupation of the land.

KOTEI V. ASERE STOOL

FACTS: The disputed Mukose land had been compulsorily acquired by the government & problems arose as to whom
compensation was payable. The plaintiff (Nikoi Olai family) asserted that it was the ancestral property of his family.

HOLDING: The Nikoi Olai family were owners in possession of 7/8 of the land and possessed such rights as are conferred
in law on a subject of a stool who is in possession.

REASON: *The Mukose lands were Asere stool lands thus the Asere stool had a paramount title. The payment of tolls to
the Asere stool and the recognition of headmen in the villages is sufficient proof of such a paramount title in the stool.
However from evidence, the Nikoi Olai family had an interest in the land. Much of it has been used exclusively by
members of that family (hence the seven–eighths area for which they obtained compensation for the wireless station).
But some of it has been used by strangers by permission of the headmen and in respect of land so occupied by strangers,
tolls have been paid to the Asere stool (hence the one–eighth area for which the asere stool received compensation).

* Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced
into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he
does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow–subject
without obtaining the consent of the paramount stool: for the fellow–subject will perform the customary services. He
can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it
will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he
lawfully may do. The law on the subject is developing so rapidly that their Lordships think it wrong to limit the right of
the plaintiffs in the way that Jackson, J. did.

FIAKLU V. ADJIANI

FACTS: The disputed land situated in Kokomlemle was acquired from the by an individual from the Korle priest, who in
turn transferred it to the plaintiff. The plaintiff built a swish building and planted coconut trees on the land & it remained
so for 10 years. The defendant subsequently started to carry out building operations on the land and the plaintiff brought
an action for a declaration of title. The defendant claimed to have purchased the land from the Korle, Ga & Gbese stools.

HOLDING: The defendant had a good title to the land.

REASON: A valid title to the Kokomlemle lands can only be made by the Korle stool with the prior consent of the Ga and
Gbese stools.

* The plaintiff led satisfactory evidence of his possession of the disputed land as anyone might do in this country. But the
plaintiff’s possession is good against the whole the whole world but the true owner. Accordingly, if the evidence shows
that the defendant’s title avails against the plaintiff’s than the plaintiff’s superior evidence of possession amounts to
nought.

GHASSOUB V. SASRAKU

FACTS: The plaintiff family claimed that they purchased the land from the Chempaw stool, a sub-stool of the Kokofu
stool, with the consent of the Kokofu stool. The defendants also alleged that timber harvesting rights had been given to
them by the Kokofu stool. The co-defendant, who was the chief of Kokofu argued that land was not saleable in Ashanti, &
that the previous Chempaw headman & previous Kokofu chief had been destooled for collaborating in selling stool lands,
therefore the sale was not done with the consent of the Kokofu Stool.

HOLDING: The plaintiff’s company is in possession of the said land as owners thereof by right of purchase under an
absolute sale by guaha from the stool of Chempaw with the knowledge and consent of the Paramount Stool of the
Kokofu State.

REASON: After the purchase, the plaintiff family had kept the boundaries of the land cut & kept the boundary mark clear.
They had not paid any tribute, rents or tolls. It was known that the former Omanhene had in fact assented to other sales
of land & also that he and the Odikro of Chempaw had collaborated in selling lands. By reason of these various
circumstances it was reasonable and permissible for the court to interfere and to arrive at the conclusion that have had
been knowledge in the consent by the Paramount Stool.

MENSAH V. BLOW

FACTS: The appellant’s ancestors granted a licence to the respondent’s ancestors to occupy & use the land on which the
disputed farmstead is situated. The respondent’s family lived on the land without paying any tribute or tolls. The
appellant claimed to have cleared the virgin forest with the intention of cultivating it without the help of the respondent,
who subsequently ploughed the land. The appellant thus brought an action for damages & trespass.

HOLDING: The respondent’s claim that she is entitled to dispossess the appellant of the disputed farmstead because of
the long uninterrupted occupation enjoyed by herself and her ancestors over the land is a false one.

REASON: Throughout the period of occupation the licensee at custom has a present right of possession over the portion
of the grantor’s land where the right of the grantor is not ousted. In other words, the grantor’s title and right to enjoy the
land remains unimpaired, and the granting of the license or permission to occupy the grantor’s land without paying
tribute or tolls is not be regarded as a surrender by the owner or lesser of all claims or rights in the land.

NGMATI V. ADETSIA

FACTS: The plaintiff, a Yilo Krobo subject, brought an action against the defendants for trespass. The defendants asserted
that all land at Okwenya belonged to the Konor of Manya Krobo thus the plaintiff’s ancestors could not have farmed the
land, being Yilo Krobo subjects, not Manya Krobo.

HOLDING: That the plaintiff’s ancestors, like many other Krobos—Yilo as well as Manya—in ancient times farmed
portions of the land at the foot of the Krobo Hill, and the land which the plaintiff’ ancestors so farmed is now the
ancestral property of the plaintiff’s family.

REASON: Unoccupied land which is found about an area which a Stool settles upon, and which the subjects of the Stool
cultivate, comes to be regarded as property of the Stool. But the portion which anyone so farmed also remains ancestral
property for his descendant.

*The only way in which the Manya Krobo Stool can defeat the plaintiff’s evidence of possession and occupation of a
portion of the land is to produce Manya Krobo subjects whose ancestors farmed the area in ancient times. No Manya
Krobo family has come forward to claim the land in dispute as his ancestral family property. That being so, the Stool,
which can acquire title only through its subjects, cannot resist the evidence of the Yilo Krobo subject whose ancestor’s
original cultivation of that portion of the land has been established.
KWAMI V. QUAYNOR

FACTS: The appellant brought an action for a declaration of title, claiming to have acquired the land from the Osu Stool.
The respondent also claimed to have acquired the land from his father, who had acquired it from the elders of the Osu
Alata Quarter earlier in 1897. The disputed area was part of the larger area granted to the respondent’s father.

HOLDING: The land which is the subject–matter in this case is contiguous to the Alata Quarter and forms part of that
Quarter. The Osu Mantse therefore had no authority to deal with it.

REASON: The Osu Mantse is the proper authority to grant Osu Stool lands; that is which is not a Quarter Stool Land nor a
Quarter “outskirt” land. The head and elders of a Quarter Stool in Osu constitute the proper authority to grant a Quarter
land. On the other hand, where unalienated “outskirt” land is in the charge of the head and elders of a Quarter, the final
decision whether or not to make a grant of such land rests in the Osu Mantse. But, although the Osu Mantse may reject
the advice of such head and elders of a Quarter, he cannot himself make a valid grant without prior consultation with
them.

AMEODA V. PORDIER

FACTS: The appellant’s argued that upon an agreement between their predecessors & the respondent’s predecessors,
the respondents’ predecessors were allowed to graze their cows and live on the land in dispute at the price of one cow.
The respondents’ predecessors failed to provide the cow before their death, & the appellant sought to enforce this
agreement against the respondent. The respondents however denied the existence of such an agreement, claiming that
the land belonged to the Ningo stool.

HOLDING: The lands in Ningo are not stool lands but are owned by families or quarters thus the lands in dispute belong
to the appellant’s family.

REASON: The land was originally discovered by the appellant’s ancestor who killed the wild animals with which the land
was then infested and built cottages on the land and generally reduced it into his possession. The appellant’s family also
gave the boundaries of their land. This was before the trial reduced into a plan which was produced in evidence.
Witnesses, almost all of them being holders of traditional office at Ningo, supported the appellant’s evidence that the
Ningo stool as such owned no land at Ningo and that the land is owned and has always been owned by quarters and
families.

*In an annexure to a letter written to the govt, the mantse sought govt’s approval for “laws” which he made for the
benefit of Ningo, where he sought to vest in himself title to “all lands on the back or round the town” and he was
prepared to have them from the owners, as he put it, “whether for sale or lend.” This evidence was obviously led to show
that the mantse would not have sought permission to vest in his stool what, if the claim of the ’stool is well–founded,
belonged to himself.
AZAMTILOW V. NAYERI

FACTS: The plaintiff claimed that the White Volta was the boundary between his tribe (Builsa) and the defendants’ tribe
(Mamprusi).

HOLDING: Both parties held title to land in their tribes i.e. Builsa & Mamprusi.

REASON: The position of tindanena was merely one of fetish priest, & not one which carries the title of land with it
though it was shown to have connections with land.

AMATEI V. HAMMOND

FACTS: The plaintiff claimed to have acquired the disputed land, which is in the Osu Ashanti Blohum Quarter, from a
grant by the acting mankralo. The defendant claimed acquisition through the mankralo himself. The plaintiff alleged that
the mankralo had been summarily destooled by the Gyasetse & the acting mankralo had been installed. The plaintiff had
erected pillars on the land when the defendant came & threatened to have him arrested if he did not leave. He therefore
brought an action against the defendant.

HOLDING: The grant made to the plaintiff without the participation of the Osu mankralo is void. Also, the evidence of the
alleged grant by the mankralo to the defendant is untrue.

* As between the plaintiff and the defendant none of them has a valid grant of the disputed land and they both
therefore lack title. The plaintiff’s possession should however be protected.

REASON: The declaration by the Gyasetse destooling the mankralo on the facts of this case offended the customary
practice of removing a chief and is of no effect. It follows therefore that the subsequent appointment of the acting
Mankralo is also void.

* The plaintiff on the evidence is in physical and effective possession of the land in dispute. As against the whole world
his possession is just as good title save against the true owner or someone claiming through him.

HAMMOND V. ODOI

FACTS: The plaintiff brought an action for a declaration to title after he noticed that the defendants had started building
on a plot of land at Kotobabi which he alleged belonged to him. He claimed that the land was given to him under
customary grant by the Nii We family, the head of the Ashanti Blohum Quarter. The court held in Akwei v. Awuletey that
the land in dispute was neither quarter land nor outskirt land adjacent or contiguous to the Ashanti Blohum quarter but
Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant. Nii Dowuona IV
confirmed the defendant’s grant in 1956 which he registered under the Lands Registry Act, 1962 (Act 122) in 1965. The
plaintiff had his grant also confirmed by Nii Dowuona V in 1964. The plaintiff never registered his land.

HOLDING: On 26 March 1965, the defendants had a registered valid title to the land in dispute whereas the plaintiff had
no such valid competing title.

REASON: Since the defendant’s grant was registered nearly three years afterwards, the document took effect under
section 26 (5) from the date of registration, that is 26 March 1965. At that date there was no other instrument to
compete with it so far as priority under section 26 was concerned. The plaintiff’s document had not been registered on
or before that date and could not compete with it.

NYAASEMHWE V. AFIBIYESAN

FACTS: The disputed land belonged to the plaintiff’s ancestors, which he inherited from his uncle after he died. He
permitted Busumpra to farm on the land, without specifying the duration or type of licence. The defendants who were
relatives of Busumpra trespassed on the land after Busumpra had died and he lodged a complaint with the chief.

HOLDING: the plaintiff possesses the allodial title to the disputed land. However, since he is not in exclusive possession
of the land having permitted Busumpra to make a farm thereon; and since the late Busumpra’s usufructuary interest in
the farm is now vested in possession of the defendants, his successors, the plaintiff’s action for damages for trespass is
misconceived

REASON: A plaintiff in a claim for a declaration of title to land bears a heavy onus of providing ownership; and the result
depends on the strength of his own case and not on the weakness of the defendant. The plaintiff failed to prove the
transfer of only a sowing tenancy to Busumpra, thus it is impossible to determine into which category the licence falls.
There is no evidence that the licence granted to Busumprah was either terminated or lapsed at his death thus upon
Busumprah’s death, his possessory or usufructuary interests in the land vested in his customary successor, the
defendants herein.

(*Allodial title to disputed land belonged to plaintiff)

MECHANICAL LLOYD V. NARTEY

FACTS: The plaintiff acquired a piece of land at Frafraha from the Frafraha Mantse. He subsequently went into possession
of the land, erecting pillars, weeding, and planting palm & mango trees. The defendants then started encroaching on the
land, destroying the plaintiff’s crops in the process & the plaintiff brought an action for a declaration to title. The
defendants counterclaimed that the La Mantse was the only competent grantor of stool lands.
HOLDING. The plaintiff’s grant was first & had been duly stamped & registered, therefore the defendants could not claim
to dispossess the plaintiff on grounds that the grant was not from the La Mantse.

REASON: Frafraha lands were La Stool lands, but neither party had a proper grant from the La Stool. Though the La
Mantse was the true owner of Frafraha lands, his deliberate failure to assert his ownership led the public & even the
govt. to believe that Frafraha lands were owned by the Agbawe family. In the circumstances the stool could not now
assert any title against an innocent purchaser who had dealt with the Agbawe family following the La stool’s inaction and
acquiescence.

*Since by the evidence of the La Mantse the land in dispute was stool land, by the provisions of sections 1 and 8 of the
Administration of Lands Act, 1962 (Act 123) he needed the concurrence of the Secretary for Lands for valid alienation of
the land.

JAMESTOWN STOOL V. SEMPE STOOL

FACTS: The court was called upon to determine as between the Sempe stool and the Alata stool, which stool had
acquired the allodial title to the hitherto James Town lands.

HOLDING: The allodial title is vested in the quarter which is in exclusive possession.

REASON: The history of James Town shows clearly that three quarters constitute James Town, namely Akumajay, Alata
and Sempe and that their “property” is vested in the James Town Mantse, per Akue v Ababio. Each quarter can however
only claim ownership to an area which is in its exclusive possession. It will be wrong for any of the three stools to claim
for itself the allodial title to all James Town lands.

(Thus allodial title vested in sub-stool: Jamestown)

SAAKA V. DAHALI

FACTS: The plaintiff brought an action against the defendant for a declaration of title to a house in Tamale which was
built by her deceased father. Her father had permitted the defendant’s grandmother to stay in the house while he did
not stay there. After he died, the plaintiff came to remind the defendant’s mother that the house belonged to her father.
After the defendant’s mother died, the plaintiff decided to make some extensions to the house but she was prevented
from doing so by the defendant, who claimed that the property was owned by her grandmother.

HOLDING: The plaintiff led evidence showing that she is the sole heir and next of kin of her father Saaka Dagomba. She is
therefore entitled to a declaration of title to the house, recovery of possession and a perpetual injunction against the
defendant, her servants and agent.
REASON: The defendant’s mother was a licensee and her daughter, the respondent herein, is equally a licensee for she
cannot acquire a greater interest than her predecessor-in-title. A licensee under customary law does not by virtue of long
use per se acquire an interest in the property which would entitle him to deprive the licensor or his successors of their
ownership.

(Allodia title vested in skin: Dagomba Tamale)

EDWARD AWUKU V. BRYNE YAW ATTIGAH

FACTS: The first claimant claimed that he acquired the land from his uncle who acquired it from the caretaker of
maamobi lands. His conveyance was apparently confirmed by the Osu Mantse.

HOLDING: The caretaker/headman of Maamobi lands had no authority to grant Osu Stool land, unless the Osu Mantse
adopted or concurred in the grant later upon knowing the true facts. The transaction between the first claimant’s uncle
& the caretaker was not ratified properly by the Osu Mantse, since the caretaker was listed as ‘donor’.

REASON: The scope of those who may grant portions of Osu Stool lands is wide enough to include the Osu Mantse, and
his elders including quarter headmen and caretakers. A reading of the cases will mean then that it is when the caretaker
acts alone without the knowledge, consent and concurrence of the Osu Mantse, or when the Osu Mantse acts alone
without his elders including the quarter headmen that the grant would be declared null and void.

USUFRUCT

BUOR V. BEKOE

FACTS: The plaintiff’s predecessor pledged the disputed land to the first defendant, who refused to accept it & the 2nd
defendant who like it, advanced the money & took the farm. In the plaintiff’s predecessor attempt to redeem the land,
the first defendant initially agreed that it was given as a pledge for a loan but later alleged that it had been sold, & not
pledged. The plaintiff’s witness who was the linguist at the date of transaction deposed that he witnessed a transaction
of loan & pledge, & not sale. Therefore the consent of the odikro was not needed & not obtained. No portion of the
purchase price was paid to the odikro, as would be the case in sale of land to a non-subject.

HOLDING: On the evidence, the transaction was one of loan and pledge and not one of sale and conveyance of the land.

REASON: *Sale of possessory rights in land by a subject to a non-subject without knowledge & consent of the stool is
voidable, not void. Therefore if it is shown that the Odikro and the principal elders knew of it, but sat by and allowed the
purchaser, in the belief that he has acquired good title, to incur expenses to improve it, the stool will be held to be
estopped.
THOMPSON V. MENSAH

FACTS: The plaintiff claimed a declaration of title to a piece of land around Ring Road, Accra, asserting that he acquired it
as a grant from the Korle Webii. The defendant argued that he acquired the land as a grant from the Atukpai (Kotey???)
family and was in negotiation with the Korle Webii to perfect his ownership. The Kotei family was in possession at that
time

HOLDING: There was no evidence to show that the plaintiff had ever been in possession of the land, thus no matter how
defective the title of the defendant is, his possession is good against all but the true owner.

REASON: A usufructuary title can be transferred without the consent of the real owner (allodial title holder) provided
the transfer carries with it an obligation upon the transferee to recognize the title of real owner and all the incidents of
the subject’s right of occupation including the performance of customary services to the real owner.

*Express permission given by the stool to a subject to occupy stool land does not limit the subject’s rights attached to the
usufruct.

ALLOTEY V ABRAHAMS

FACTS: The plaintiff sued the defendants for trespass to land & claimed a declaration of title to land, through a deed of
conveyance by the Mantse of Sempe with the consent & concurrence of his elders.

HOLDING: A deed of conveyance of stool or family land executed by the occupant of the stool or the head of the family
and a linguist and/or other principal elders of the stool or family, purporting to be with the necessary consent, is valid
until it is proved that such consent and concurrence were not in fact obtained.

REASON: *According to native custom it is only the occupant of the stool or the head of the family who is entitled, with
the consent and concurrence of the principal elders of the stool or family, to alienate stool or family land. There can be
no valid disposal of stool or family land without the participation of the occupant of the stool or the head of the family;
but there can be a valid alienation of stool or family land if the alienation was made by the occupant of the stool or the
head of the family with the consent and concurrence of some, but not necessarily all, of the principal elders of the stool
or family. The occupant of the stool or the head of the family is an indispensable figure in dealing with stool or family
land.

TOTAL OIL PRODUCTS V. OBENG

FACTS: The 2nd defendant, a subject of the Akim Abuakwa Stool, transferred land to the 1st defendant who was a
non-subject. The 1st defendant subsequently transferred the land to the plaintiff company, and before the lease was
executed the plaintiff company paid a deposit as advance rent which was used by the 1st defendant to purchase the land
from 2nd defendant & the buildings on it.

HOLDING:

REASON: Per Ollenu J, *The right of a person by customary law to the free use of land is limited to land in its natural
state, which has nothing but natural products thereon, not land which has been developed by human skill, industry or
capital. No person is entitled to the free use of a cocoa farm made by another, or a house built by another person.

*A stool subject forfeits his usufructuary title to stool land in his possession if he denies the title of the stool; the only
way this can be done is where he claims that the land he occupies belongs to a stool other than the stool to which he is a
subject, and that he holds the land as grantee of that stool.

*A fee simple estate is unknown in customary land law. But a conveyance which purports to convey the fee simple in
land is not thereby void. It has the effect of transferring the highest estate or interest which the transferor has in the
land.

*A stool cannot alienate land in the possession of a subject without the consent of the subject.

*A lease by a stool subject of land in his possession does not constitute an alienation of his usufructuary title in the land.
He does not therefore require the consent of the stool.

LOKKO V. KONKLOFI

FACTS: The defendant, a subject of the Berekusu stool, offered his land as security for a loan from the plaintiff. The loan
not being paid, the plaintiff brought an action for the recovery of the loan & judgment was given for him. The plaintiff
subsequently took out a writ of fi fa & the defendant’s village, cocoa & sugar cane farms were attached. The claimant
thus interpleaded that the land in question was attached to the Berekusu stool & therefore could not be seized in
execution.

HOLDING: Konklofi’s occupation had been of such continuance and of such a character that the land must be now
deemed to be the property of Konklofi and siezable in execution.

REASON: As long as the stool–subject continues to live on or to work land, he is entitled to live on and to work that land.
Furthermore, the evidence shows that Konklofi is entitled to use his village and farms without disturbance from the stool
holder. He has, therefore, even assuming the land to be stool land and not his property, a valuable interest in this land.

There has been continuous occupation for about 40 years, and Konklofi has been permitted to build a village on the land
and make permanent farms. There has been no express alienation by the stool, but there has been recognition of the
exclusive occupation. He therefore had appropriated that portion of the stool land to himself with the tacit consent of
the stool, and it was no longer stool property, but his own property.
KOTEI V. ASERE STOOL (Emphasised by ROBERTSON V. NII AKRAMAH)

FACTS: The disputed Mukose land had been compulsorily acquired by the government & problems arose as to whom
compensation was payable. The plaintiff (Nikoi Olai family) asserted that it was the ancestral property of his family.

HOLDING: The Nikoi Olai family were owners in possession of 7/8 of the land and possessed such rights as are conferred
in law on a subject of a stool who is in possession.

REASON: *The Mukose lands were Asere stool lands thus the Asere stool had a paramount title. The payment of tolls to
the Asere stool and the recognition of headmen in the villages is sufficient proof of such a paramount title in the stool.
However from evidence, the Nikoi Olai family had an interest in the land. Much of it has been used exclusively by
members of that family (hence the seven–eighths area for which they obtained compensation for the wireless station).
But some of it has been used by strangers by permission of the headmen and in respect of land so occupied by strangers,
tolls have been paid to the Asere stool (hence the one–eighth area for which the asere stool received compensation).

* Native law or custom in Ghana has progressed so far as to transform the usufructuary right, once it has been reduced
into possession, into an estate or interest in the land which the subject can use and deal with as his own, so long as he
does not prejudice the right of the paramount stool to its customary services. He can alienate it to a fellow–subject
without obtaining the consent of the paramount stool: for the fellow–subject will perform the customary services. He
can alienate it to a stranger so long as proper provision is made for commuting the customary services. On his death it
will descend to his family as family land except in so far as he has disposed of it by will, which in some circumstances he
lawfully may do. The law on the subject is developing so rapidly that their Lordships think it wrong to limit the right of
the plaintiffs in the way that Jackson, J. did.

ROBERTSON V. NII AKRAMAH

FACTS: The plaintiff’s family, a subject of Asere stool, sued the Asere stool and three other persons for a declaration that
it was the rightful entity to make alienations of the Mukose lands and asked that the defendants be enjoined from
making similar alienations in the future. It also claimed damages for trespass, recovery of such portions of lands that had
been alienated by the defendants and an injunction against such future acts. The trial judge held for the defendant stool,
& the plaintiff appealed.

HOLDING:

REASON:
KUMA V. KUMA

FACTS: The plaintiff, an odikro, brought an action to obtain a declaration of title to land against the defendant, a farmer
who had purported to sell the disputed land to another. The plaintiff claimed title through his ancestors who had
founded the village. The defendant claimed to have obtained title from a follower of the ancestor who founded the
village.

HOLDING: Evidence as to the defendant’s occupation is not inconsistent with the plaintiff’s title & is not conclusive of the
defendant’s title.

REASON: Among the natives, occupation of land is frequently allowed for the purpose of cultivation but without the
ownership of the land being parted with. The owner of the land allows such occupation so long as no adverse claim is
made by the occupier; the occupier knowing that he can use the land as long as he likes provided he recognizes the title
of the owner.

BAYAIDEE V. MENSAH

FACTS: The plaintiff brought an action to recover a piece of land in Odumase from the defendant. The plaintiff claimed to
have acquired the land from the defendant’s family head, & had remained in possession until some months before the
action was brought. The defendant alleged that the family head had made the purported grant without the concurrence
of family members.

HOLDING: Whatever right of impeaching the sale the family possessed is barred by their acquiescence and the plaintiff’s
continued course of undisturbed possession.

REASON: Although concurrence of family members ought to be given for there to be a valid sale of family land, the sale is
not itself void but voidable. The family can therefore assert their rights timeously, restoring the purchaser to the position
he was in before the sale. This is obviously not the case, since here the purchaser has possessed an undisputed
ownership for a series of years, has cultivated and improved the land, and has established a home upon it.

BRUCE V. QUARNOR

FACTS:

HOLDING:

REASON: * By native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is
therefore the responsibility of the grantor, where the title of the grantee to the land is challenged, or where the grantee’s
possession is disturbed, to litigate the grantor’s title to the land; in other words, to prove that right, title or interest which
he purported to grant was valid. Thus In practice, the vendor and the purchaser sue jointly.

*Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed
subsequently executed by the grantor for the grantee may add to, but it cannot take from, the effect of the grant. Thus, a
stool can by deed convey to the person the absolute ownership in the land which it originally granted to that person by
customary law and thereby exempt the grantee from the performance of customary services which might normally have
been due from the grantee to the stool; but such a deed cannot operate to revoke the grant made by custom.

MENSAH V. GCB

FACTS: The plaintiff’s late husband had deposited deeds of title to the disputed property as mortgage & the plaintiff paid
the mortgage debt. The plaintiff subsequently brought an action against the defendant bank, claiming to be entitled to a
re-conveyance of the property. The bank deposited all the deeds of titles with the court & did not file a defence. The 2nd
defendant, the younger brother of the plaintiff’s late husband, claimed that the land was the self-acquired property of
their father & was now family property.

HOLDING: From the evidence, the land was the property of the 2nd defendant’s father. The plaintiff failed to prove her
late husband’s ownership of the land, as the onus was on her to do so.

REASON: * by custom, a native of Teshie requiring a portion of vacant stool land for building purposes must first apply to
a quarter for grant of the land. The grant is made by the quarter and after the customary drinks are provided, he
becomes entitled to occupy and build on the land. It is the duty of the quarter to give to the chief his proper share of the
customary drink. If the grantee should later request a document from the stool in confirmation of the said grant by
native custom, he may have it, but the stool cannot execute such a document without reference to the head and elders
of the quarter in whose area the land is situate, since they are the only people who can prove the original grant, and who
are the proper persons to know the extent of the grants made on the areas.

BUDU V. CEASAR

FACTS:

HOLDING:

REASON:
NORQUAYE TETTEH V. MALM

FACTS: The defendant claimed to have acquired the disputed land from the previous occupant of the Akumadjaye stool,
& the plaintiff claimed title through the current occupant. Counsel for the plaintiff argued that the onus was upon the
defendants to prove by positive evidence of occupation that the land in dispute was the identical land which the stool
had previously transferred.

HOLDING: The defendant was in lawful possession of the land at the date the plaintiff entered & attempted to exercise
acts of ownership.

REASON: The existence of trees like mango or cashew on land overgrown with weeds is prima facie evidence that the
area where they are found is a farmstead, once under cultivation by the person who now harvests their fruits.

By customary law a stool cannot make a valid grant of any portion of its land on which there exist economic trees like
mango and cashew. This is a well–established custom which is based upon another very sound customary law, namely,
that any subject of a stool is entitled to occupy a vacant portion of the stool land, and to become the owner of the
usufruct thereof. His occupation and possession may be by cultivating it in one form or another, by building on it, or
using it in any other way in which an owner would use his land.

A subject in such possession may alienate that possessory title of his, either to another subject or to a stranger; or he
may lease it, so long as such alienation or lease carries with it the obligation to recognize the allodial ownership of the
stool. By custom a stool cannot alienate its absolute title in such a portion of the stool land without reference to the
subject or grantee in possession. The person in possession might have obtained the land by grant direct from the stool,
or grant from a subject of the stool who had occupied the land when it was vacant

OHIMEN V. ADJEI

FACTS: The plaintiff sued the defendant for a declaration to title, damages and trespass.

HOLDING: There are four principal methods by which a stool acquires land. They are: conquest and subsequent
settlement thereon and cultivation by subjects of the stool; discovery, by hunters or pioneers of the stool, of
unoccupied land and subsequent settlement thereon and use thereof by the stool and its subjects; gift to the stool;
purchase by the stool.

The stool holds the absolute title in the land as trustee for and on behalf of its subjects, and the subjects are entitled to
the beneficial interest or usufruct thereof and have to serve the stool. The area over the family exercise their
usufructuary right cannot be disposed of by the stool except with express consent of the family. The individual or family
may dispose of his interest (usufruct) to another subject of the stool without consent from the stool, but cannot dispose
of the stool’s absolute ownership (Allodial title) without consent of the stool.

The only title which a subject has in stool land and for which he can maintain an action against the stool is the possessory
title or the usufruct of the land.

Anafo lands owned by Asona stool.

ATTA V. ESSON

FACTS: The plaintiff & his family had been declared to be tenants in perpetuity of the defendants but in spite of the
judgments, they had been denied the quiet enjoyment of the land. The latest act of the defendants was felling of palm
trees planted by the plaintiff family on the land. The plaintiff brought this action claiming damages from the defendants
and a perpetual injunction restraining them and their agents from having anything to do with the land. Defendants
argued that in customary law empowers a landowner to enter upon his land in the possession of another as tenant to
collect palm nuts or enjoy palm and other indigenous edible trees on the land. Sarbah cited.

HOLDING:

REASON: *the landlord is not entitled to palm trees on the land whether planted by them or by the plaintiff’s family. The
customary law as stated by Sarbah became outdated and ceased to be law as soon as conditions in society changed so as
to make it unreasonable for persons to conduct themselves by it.

MENSAH V. BLOW

FACTS: The appellant’s ancestors granted a licence to the respondent’s ancestors to occupy & use the land on which the
disputed farmstead is situated. The respondent’s family lived on the land without paying any tribute or tolls. The
appellant claimed to have cleared the virgin forest with the intention of cultivating it without the help of the respondent,
who subsequently ploughed the land. The appellant thus brought an action for damages & trespass.

HOLDING: The respondent’s claim that she is entitled to dispossess the appellant of the disputed farmstead because of
the long uninterrupted occupation enjoyed by herself and her ancestors over the land is a false one.

REASON: Throughout the period of occupation the licensee at custom has a present right of possession over the portion
of the grantor’s land where the right of the grantor is not ousted. In other words, the grantor’s title and right to enjoy the
land remains unimpaired, and the granting of the license or permission to occupy the grantor’s land without paying
tribute or tolls is not be regarded as a surrender by the owner or lesser of all claims or rights in the land.
KAKRAH V. AMPOFOAH

FACTS: The disputed stool land was cultivated by the defendant’s late father subject to payment of yearly tolls to the
stool representative. According to custom, his successor was one Foster, but as a result of litigation the successor
apportioned part of the deceased’s property to the children including the disputed land including the burden of yearly
tolls. The stool thus applied to the children for assistance in servicing a stool debt unconnected with the litigation which
they refused. The stool subsequently increased the toll which they also refused to pay, & they brought an action to
compel the children to accept the new rate & also that a portion of the land previously farmed by strangers had reverted
to the stool.

HOLDING: The strangers were labourers for the defendants’ late father, thus the land was still his. With respect to the
toll, the stool cannot vary the agreement made with the defendants’ late father.

REASON:

AMATEI V. HAMMOND

FACTS: The plaintiff claimed to have acquired the disputed land, which is in the Osu Ashanti Blohum Quarter, from a
grant by the acting mankralo. The defendant claimed acquisition through the mankralo himself. The plaintiff alleged that
the mankralo had been summarily destooled by the Gyasetse & the acting mankralo had been installed. The plaintiff had
erected pillars on the land when the defendant came & threatened to have him arrested if he did not leave. He therefore
brought an action against the defendant.

HOLDING: The grant made to the plaintiff without the participation of the Osu mankralo is void. Also, the evidence of the
alleged grant by the mankralo to the defendant is untrue.

* As between the plaintiff and the defendant none of them has a valid grant of the disputed land and they both
therefore lack title. The plaintiff’s possession should however be protected.

REASON: The declaration by the Gyasetse destooling the mankralo on the facts of this case offended the customary
practice of removing a chief and is of no effect. It follows therefore that the subsequent appointment of the acting
Mankralo is also void.

* The plaintiff on the evidence is in physical and effective possession of the land in dispute. As against the whole world
his possession is just as good title save against the true owner or someone claiming through him.

Where a subject of a stool requires land for farming whether arable or for animal husbandry, and engages himself in a
commercial mechanized farming he should be required to obtain an actual grant in the form of a lease. If such a person
with the necessary resources and equipment is permitted to rely on this inherent right to clear miles and miles of stool
land, it would not be long when other subjects of the same stool would be deprived of any share of the land. (Stool
subject should obtain actual grant from stool before occupying land)

MANSU V. ABBOYE

FACTS: The plaintiff, a subject of the Yarbiw stool, sought a declaration of title to the disputed land claiming that his
ancestors had cultivated the land & it into possession. An attempt had previously been made by the State Farms
Corporation to appropriate land for cultivation. Upon complaints by the co-defendant as chief & the town inhabitants,
land which had not already been cultivated was released. The plaintiff’s land was part. The defendant, on the authority
of the co–defendant then entered the plaintiff’s said land, uprooted 215 wild palm trees and tapped them into palm
wine for the co–defendant. The defendant asserted that the plaintiff had lost any rights he might have had over land
when it was acquired compulsorily for the State Farms Corporation, & upon its release was vested in the Chief of Yarbiw.
Trial judge held for defendants & plaintiff appealed.

HOLDING: The plaintiff did not lose his usufructuary interest in the land. Consequently, the plaintiffs land could not be
said to have reverted to the co–defendant.

REASON: There was no compulsory acquisition of the plaintiff’s land. There was no evidence that the state Farms
Corporation or its predecessor, the defunct Agricultural Development Corporation, or any authority on its behalf,
complied with the provisions dealing with the procedures for compulsory acquisition in the country. That is, the said
acquisition ought to have been made in accordance with the provisions of the state Lands Acts, 1962 (Acts 125), as
amended by the State Lands Acts, 1962 (Amendment) Decree, 1968 (N.L.C.D. 234).

*Some of the cardinal incidents of the usufructuary interest are that the usufructuary has exclusive possession and
enjoyment of his portion of land, and he cannot capriciously be divested of this interest by the stool; neither can the
stool alienate that portion of the land to any other person without the prior consent and concurrent of the usufructuary.

*The allodial owner, without the permission of the usufructuary owner has no right to the economic trees on any land
which is in the possession and control of the usufructuary owner, whether those economic trees were cultivated or grew
on the said land without the intervention of human labour.

*On the other hand the only title in land which a subject can claim against a stool is the usufructuary title to the portion
of the stool land in his actual possession.

*Stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and
uncertified breaches of customary tenure, or upon abandonment.

KWADWO V. SONO
FACTS: The defendant destroyed cocoa trees & other crops on the plaintiff’s farm in the course of his timber logging
operations on Dormaa stool land over which he had concession rights. The plaintiff sued & judgment was given for him
with damages awarded against the defendant. In the award of the damages the court rejected the compensation rate
provided by the chief lands officer on grounds that it was ridiculously low, considering the increase in cocoa prices. The
defendant appealed against the damages, arguing that by the provisions of the Concessions Act, 1962 (Act 124), s 16(4)
and (5) the concession agreement extinguished the rights and interests of the local farmers except what had been
reserved under the concession agreement. Also, because clause 2(1) of the concession agreement stipulates that
compensation payable to farmers for damage crops should be assessed by the Administrator of the Stool Lands, the
court erred in disregarding the assessment by the administrator.

HOLDING:

REASON: The plaintiff’s redress for the damage to his crops was not dependent on the terms and conditions of the lease,
but based on his common law rights against an infringement of his proprietary interest.

Apart from vesting the stool lands in the President, the provisions of section 16(4) of the Concessions Act, 1962 (Act 124)
only empowered the President to grant leases for timber rights only. Such a demise affected the defendant farmer only
in so far as the concessionaire’s rights extended as well to timber standing in his farm. But the plaintiff’s right of
precedence to timber on the land did not in any way abridge the defendant’s legal rights and protection to his crops.

Although Act 124, did not spell out the customary rights, privileges and interests of the local population over the
demised land, nonetheless, those rights were legal, not because they were declared so by enactment but because they
were immemorial customary rights and privileges which members of the local population of the stool land had always
enjoyed; whether their possession of the land was by right of occupation or by permission from the stool.

ADJEI V. GRUMAH

FACTS: The plaintiff, a stranger, applied to the Mimhene & upon paying the customary fee was granted a virgin forest
which he cultivated. He alleged that the defendant entered his farm & destroyed his crops. The defendant asserted that
he purchased the disputed land from the Mimhene & had not destroyed any crops as it was virgin forest. The Mimhene,
in giving evidence for the defendant, claimed that he ordered an inspection of the area granted to the plaintiff for
farming that upon the report received, he and his elders decided to re–enter and sell the virgin forest land which the
plaintiff had failed to cultivate to anyone requiring land for farming.

HOLDING:

REASON: The plaintiff was a stranger–farmer who was treated as a subject of the stool. He must therefore be presumed,
as a subject of the stool, to know the local custom on re–entry of the stool land. There is nothing on record to rebut this
presumption. The principle of customary law that a subject of the stool acquires a determination or usufructuary title
in the stool land he occupies does not apply to virgin forest land on which he expended no labour. The principle
creates a burden on the absolute title of the stool, and vests the subject in occupation with a possessory title that
prevails even against the stool itself. The very nature of this possessory title precludes any extension of the principle to
cover area of virgin forest land not reduced to actual possession. Failure of notice of re-entry is not fatal & cannot defeat
the customary right of re-entry of a stool.

AWUAH V. ADUTUTU

FACTS: The plaintiff obtained a grant of forest land from the 1st defendant acting on behalf of the Akwaboa stool. The
plaintiff entered possession & cultivated the land, leaving a small portion which he gave to a man to cultivate on abunu
tenancy. After that man had cleared the forest, the first defendant entered the land & appropriated a considerable
portion, subsequently giving some to the 2nd defendant who started cultivation. Upon objection, the 1st defendant
claimed that the plaintiff had exceeded the land granted to him & that the land granted to the 2nd defendant was not
included in the plaintiff’s grant. The plaintiff sued for a declaration of title to land, damages for trespass & a perpetual
injunction. The trial judge held for the plaintiff & his decision was reversed on appeal in the court of appeal.

HOLDING: The plaintiff was not a subject of the defendant’s stool but was a stranger-grantee in respect of a defined
portion of the stool forest land which he had cleared and cultivated. Consequently the plaintiff could maintain his action
for declaration of title and for perpetual injunction against the defendant.

REASON: *Since the High Court judge found that exhibit B showed a customary grant and not a sale, he should have
realised that exhibit B was merely a receipt acknowledging payment of money and that reference to the size of the land
granted without any particulars from which the land could be clearly identified could not change the character of that
receipt into an instrument transferring title or an interest in land requiring registration in terms of the provisions of the
Land Registry Act, 1962 (Act 122).

* Documents which were prepared after a grant according to custom served merely as documentary evidence of the
grant and did not change the customary nature of the transaction.

*The plaintiff acquired the usufructuary interest in the land which is coexistent with the allodial title. The usufructuary
was regarded as owner of the area of land reduced into his possession and he could alienate voluntarily to a fellow
subject or involuntarily to a judgment creditor without the consent of the stool. There was practically no limitation over
the right to alienate that usufructuary title and so long as he recognised the absolute title of the stool, it could only be
determined on an express abandonment or failure of his heirs. Neither could the stool divest the usufructuary of his title
by alienating it to another without his consent and concurrence.

*The subject of the stool or a stranger-grantee of the stool could maintain an action against even the stool in defence of
the usufructuary title and might impeach any disposition of such interest effected without his consent in favour of a third
party.
NYAMEKYE V. ANSAH

FACTS: Following a grant made by the 2nd defendant by the 1st defendant, the plaintiff sought a declaration to the effect
that the granted land was the property of his branch of the royal family. The 2nd defendant, who was the chief, contended
that all Kajebi lands belonged to the stool thus as stool occupant he had the authority to make the grant. He therefore
counterclaimed for declaration of title to the land. The plaintiff led evidence to show that the founder of his branch of
family was the first to cultivate the disputed land. Successor to the founder subsequently collected proceeds of the farm
on the land. The trial judge held that the plaintiff had no capacity to sue, as she was neither chief nor family head
whether the land was stool or family land.

HOLDING: Since the plaintiff’s family had exercised ownership rights over the land in dispute and continued the exercise
of those rights, the land had acquired the character of family land which the head of family with the concurrence of its
members was entitled to occupy as family land. The stool could not therefore deprive them of the land in dispute.

REASON: * The customary law position was that even though individuals and families might first cultivate on land it was
the stool which first settled on the land that had the allodial title in the land. The occupation of land by individuals or
families, quarters and sub-divisions of a community was therefore a sine qua non to acquisition of land by a stool. But
any portion of unoccupied or vacant land which individual members of that community or tribe were able by their labour
to reduce into their possession became the individual’s property, and land so occupied would belong to their families
after the individual’s death. The interest that the individual or family would hold was the determinable or usufructuary
estate in the land and it was concurrent with the existence of the absolute ownership in the stool. So long as the subject
or family acknowledged their loyalty to the stool or tribe, their determinable title to the portion of stool land they
occupied prevailed against the whole world, even against the stool, community or tribe.

MANSAH V. ASAMOAH

FACTS: The plaintiffs who were strangers brought an action against the defendants for damages for trespass on grounds
that the defendant had unlawfully destroyed crops on land which had been granted to their predecessors some years
ago by a stool. The defendant denied the trespass & counterclaimed that he was a donee in possession of land including
the disputed tract granted to him by the same stool. The trial judge concluded that the land granted to the defendant
was abandoned land which had reverted to the stool.

HOLDING: There was evidence that upon the deaths of their predecessors the plaintiffs remained in possession and
occupation of the land, paid accruing farm tributes to the stool and collected foodstuffs from the farm. There was also
evidence that at the time of the purported grant to the defendant the land was replete with cocoa trees and food crops.
On the facts therefore the land had not become abandoned and the stool could not have validly granted it to the
defendant.

REASON: *A stranger-grantee of stool land, like the subject-grantee, had a possessory heritable interest in the land he
had cultivated and so long as he continued to discharge his obligations and complied with the conditions of his grant he
could not be deprived of his interest by the stool although unlike the subject-grantee he could not alienate or dispose of
his interest inter vivos without the consent of the stool. Nevertheless where the stranger-grantee died intestate without
a successor or had abandoned the land it would revert to the stool which could validly alienate it to another person.

* Whether stool land granted to a stranger had become abandoned was a question of mixed fact and law. The land
would be held to have been abandoned if either the stranger was intransigent or had effectively and voluntarily
abandoned the land over a considerable period of years without an intention of returning to it or had died intestate
without a successor. The mere absence or death simpliciter of the stranger was not enough to constitute abandonment;
there must be an intention to abandon and the fact of abandonment must co-exist with such intention.

AWULAE ATTIBRUKUSU III V. OPPONG KOFI

FACTS: The plaintiff, the Omanhene of Lower Axim, sought a declaration of title to the disputed land, damages for
trespass & a perpetual injunction against the defendants. The plaintiff claimed that the ancestors of the defendants who
were members of the royal family were given permission to farm on the disputed land. The stool occupants in
consultation with family members appointed individuals not necessarily family members to oversee the interests of the
royal family over the lands.

HOLDING:

REASON:

PASTOR YAW BOATENG V. KWADWO MANU

FACTS: The plaintiff sought a declaration of title to the disputed land. The first defendant subsequently counterclaimed a
declaration to the effect that the disputed land was family land. Two of the plaintiff’s grounds of appeal were based on
the allegation that the town gave the disputed land to him which he paid for.

HOLDING:

REASON: Considering the question whether the Oman could grab any land belonging to a family because the town has to
be developed as was alleged by the plaintiff, the Oman could only do this if the land was stool land which had not been
reduced into possession of any citizen or family. The Oman could not just get up & allocate 50 plots to an individual when
evidence suggested that the plots formed part of land which was not stool land. This could only be done with the
consent of the family because of the basic principle of nemo dat quod non habet.

OBLEE V. ARMAH

FACTS:

HOLDING:

REASON:

NII NORTEY OMABOE III V. AG & LANDS COMMISSION

FACTS: The plaintiffs sought declarations to the effect that the control & management by the defendants of Osu Stool
lands had lapsed upon the promulgation of the 1992 constitution, that all leases renewed after the promulgation of the
1992 constitution were void & of no effect & that the defendants were enjoined by EI 108 to collect rents from
properties in the Osu Mantse Layout & pay to the Osu stool. The High Court judge determined that the plaintiff’s claim
called for an interpretation of Article 267(1) of the 1992 constitution which vests all stool lands in the appropriate stools
hence a referral to the Supreme Court.

PLAINTIFFS & A-G’s ARGUMENT: 1) EI 108 must be deemed to have lapsed by virtue of Article 267(1)

2) Framers consistently sought to depart from pre- 1969 law on stool lands ownership & vest all stool lands in
appropriate stools (evidenced in Memorandum on Proposals for a Constitution for Ghana, 1968).

LANDS COMMISSION ARGUMENT: 1) Vesting of stool land under s7 of Act 123 amounts to public acquisition of land &
puts it beyond the pale of constitutional challenge based on Article 267(1).

2) Article 267(1) is in a sense inconsequential because it is merely declaratory of customary law.

HOLDING:

REASON: Per Ocran JSC,

NII AGO SAI V. NII KPOBI TETTEH TSURU

FACTS:
HOLDING:

REASON:

1) Administration of Lands Act, 1962 (Act 123)

2) Concessions Act, 1962 (Act 124)
3) State Lands Act, 1962 (Act 125)
4) Minerals Act, 1962 (Act 126)

Purpose: 1) Conservation of natural resources i.e. s11 & 12 Act 123

2) Control of land use especially stool land

Customary Tenancies & Lesser Interests

MANU V. AINOO

FACTS: The appellant was an abunu tenant, & the respondent who was the successor to the appellant’s landlord had
given the farms to other people to harvest. The appellant thus sued the respondents for an order of accounts of farm
proceeds for the period which he had been deprived of them. The respondents also alleged that having denied his
landlord’s title the appellant had ended any fiduciary relationship that may have existed and provided an avenue for a
claim. The trial judge dismissed the appellant’s claim on grounds that since he had no possessory rights over the farm &
had not recognised the respondents, he could not sue for accounts.

HOLDING: * Being merely physically on land did not create a possessory title. However, customary tenancies like abunu
and abusa did not derive their validity from a possessory title. Abusa and abunu tenancies were created in respect of the
share of proceeds only. The ownership of the land remained always in the landlord.

*So long as the contractual relationship of an abunu tenant existed and the appellant had introduced himself to the
successors of J.A.W. as custom demanded he was entitled to call for an investigation of accounts.

*The interest of the abunu and abusa tenant to cultivate the land and partake of the proceeds was protected and could
be defended by the courts. The appellant therefore had a cause of action available to him to protect his interests by
calling for accounts.

*Customary law does not permit a landlord unilaterally to annul a customary tenancy. There must be the clearest
indication for its exercise, and the defaulter must have every opportunity for explaining himself or mending his ways.

ATTA V. ESSON
FACTS: The plaintiff & his family had been declared to be tenants in perpetuity of the defendants but in spite of the
judgments, they had been denied the quiet enjoyment of the land. The latest act of the defendants was felling of palm
trees planted by the plaintiff family on the land. The plaintiff brought this action claiming damages from the defendants
and a perpetual injunction restraining them and their agents from having anything to do with the land. Defendants
argued that in customary law empowers a landowner to enter upon his land in the possession of another as tenant to
collect palm nuts or enjoy palm and other indigenous edible trees on the land. Sarbah cited.

HOLDING:

REASON: *the landlord is not entitled to palm trees on the land whether planted by them or by the plaintiff’s family. The
customary law as stated by Sarbah became outdated and ceased to be law as soon as conditions in society changed so as
to make it unreasonable for persons to conduct themselves by it.

AHOMAH V. SEVORDZIE

FACTS: Land was granted to the appellant for farming purposes & he actively worked on the land for several years when
the respondent came & made an adverse claim to the land. The appellant thus sued for a declaration of title to land &
damages for trespass. The respondent counterclaimed for similar reliefs. It was found that the respondents had a prior
grant from the same grantors & the respondent had been in lawful possession before the appellant had entered the land
& the respondent had failed to cultivate & maintain the land within 2-3 years of the grant being made, in breach of an
express agreement reached between him & the grantors.

HOLDING:

REASON: *The established principle of law was that so long as a tenant-farmer was in occupation and had not
abandoned the land, his grantor could not derogate from his grant and admit a new tenant on the same land to the
prejudice of the earlier tenant. However, the established law could not overrule contractual obligations voluntarily
agreed upon by the parties. Since the respondent in the instant case had been in lawful possession before the appellant
entered the land, it was not open to the grantors to grant the same land to the appellant without the consent of the
respondent.

LAMPTEY ALIAS NKPA V.FANYIE

FACTS: The defendant purchased land from a stool & gave out portions to tenants for farming. The plaintiffs, three
tenants, subsequently brought an action for a declaration that they were abusa, & not abunu tenants. Though the
defendant agreed that the plaintiffs had been given virgin forest land & had used their own energy & resources in
cultivation, he contended that they had agreed to hold the land as abunu tenants. Trial judge held that the plaintiffs
failed to discharge the burden of proof. Their appeal to the court of appeal was allowed on grounds that since admissions
of the defendant constituted abusa tenancy, the burden of proof was rather on him to establish abunu. The defendant
appealed.

HOLDING:

REASON: *A landlord would not admit a tenant-farmer on to his land in the country without first discussing and settling
the terms and conditions of entry. Abusa and abunu were mere terms, i.e. names given to any arrangement between
parties whereby in the case of abusa one side got one-third and the other got two-thirds of a subject matter; whilst in
the case of abunu the subject matter was split equally between the parties. It did not matter what the subject matter
was or which party got which share. On application to farm tenancies the subject matter might be either the harvest or
its cash value; or the physical farm itself at an agreed stage of development, such as when the crops had been planted or
were mature or before harvest. In all those situations the landlord apart from being the landlord might or might not
contribute further depending in each case on what the parties agreed upon. In every case therefore, the terms were a
question of fact to be determined on the evidence. There was no inflexible customary law or practice in agricultural
tenancies so binding in its incidence that no one could contract out it. Since in the instant case, the evidence abundantly
established that the plaintiffs took abunu tenancies and would seem to wish to change the tenancy, the court should not
lend its support to that attitude.

*On general principles it was the duty of a plaintiff to prove his case. However when on a particular issue he had led
some evidence then the burden would shift to the defendant to lead sufficient evidence to tip the scale in his favour. The
defendant would only win if he was able to do that. In the instant case, since the plaintiffs claimed that the tenancy
granted them by the defendant was abusa and not abunu as the defendant contended, the burden was on the plaintiffs
to prove abusa. That burden never shifted.

OLLENU V. BRIGHT

FACTS: The appellant was given oral permission by the deceased to enter his land & establish a printing press, which he
did without paying any rent for the use of land, & was not under any terms & conditions. After the deceased died, the
respondents, who were the executors of his estate demanded arrears in rent for the use of the land. The appellant
refused to pay on grounds that he did not agree to those terms with the deceased. The respondents accordingly sued the
appellant to recover the printing press. The trial judge held that the deceased had granted the appellant a gratuitous
licence which could be revoked upon giving reasonable notice to the appellant. The appellant appealed.

HOLDING:

REASON: A bare licence can be revoked at any time upon giving reasonable notice. The death of the licensor also
automatically revokes the licence.

*At common law, a licence is merely permission granted by owner or occupier of land to another person to do on the
land an act which in the absence of the owner constitutes trespass (Kludze- Ghana Law of Landlord & Tenant). Thus no
interest passes & a licensee has no estate in land. Being a personal arrangement between two parties, a licence cannot
bind third parties. In effect, a licence dies with the death of the licensor.

NANA BEDIAKO ATWERE V. OSEI OWUSU

FACTS:

HOLDING:

REASON: Any conduct amounting to denial of title of one’s grantor has the effect of bringing the relationship of landlord
& tenant to an end.

Management of Stool Property

NANA HYEAMAN V. OSEI

FACTS: The plaintiff brought an action for the setting aside of a timber lease of a parcel of land attached to his stool.
Defendants raised a preliminary objection to the capacity of the plaintiff on grounds that by virtue of the Concessions Act
only the president could institute proceedings on behalf of the stools concerned.

S16 of Act 124 vested lands to be constituted as foreign reserves in the president & also vested all rights with respect to
timber.

HOLDING: The preliminary objection was untenable.

REASON: The vesting of stool lands that are subject to concessions in the president does not remove the stool’s inherent
rights to own property. The statutory powers of the President ought to be construed as running side by side with the
powers of the stools as the allodial owners of stool lands.

* Under Act 124, stool lands could lawfully be taken away to a concessionaire; but before such a process was brought
into fruition, the right of the stool to deal with the land in a manner not inconsistent with the provisions of Act 123 still
persisted. Consequently, the occupant of the stool could, without any inhibition, challenge the validity of a purported
concession affecting his land.

Ofori Atta II v. Mensah- Powers of stool land administration given to government bodies by statute has not changed the
native custom as to who is entitled to litigate in respect of stool lands. Title in stool land is vested in the particular stool,
and definitely it is only the occupant of that stool who is vested with authority to litigate the stool’s title to the
land.-Ollenu

Twumasi J- Interpreting sections 2, 7 and 8 of Act 123 to the effect that it takes away the ownership rights of a stool to
lands attached to it would be an unwarranted detour from well-articulated judicial opinion on the legislative intention in
enacting such laws. A careful look at the words “in trust” or “as a trustee” used in sections 2 and 7 of Act 123 reveals that
they are not intended to mean that the stools have no rights whatsoever over stool lands.

Eg. Under S8 of Act 123, the stool can still make valid grants of vested lands, but with the consent & concurrence of the
minister. If it was intended that all rights of the stool be extinguished, there would not be the chance at all to transfer
land.

FRIMPONG V. NANA ASARE OBENG II

FACTS: The defendant was a concessionaire operating partly on the plaintiff’s stool land. In the course of operations the
defendant illegally felled trees in an area falling outside his concession. The plaintiff reported to the Lands & Forestry
department & also sued for damages for trespass to his stool land. Trial judge held for the plaintiff & the defendant
appealed, contending that by virtue of S2 of Act 123, the plaintiff did not have the locus to sue by virtue of S2.

HOLDING:

REASON: On construction, S2 of Act 123, did not take away the inherent right of an occupant of a stool to sue in respect
of his stool land because the wording of the section contemplated that the proceedings in respect of which the President
might intervene must have been pending and commenced by someone on behalf of the stool. In law, the proper person
in that regard was the occupant of the stool.

KORBLAH V ODARTEI

FACTS: The plaintiff brought an action for a declaration that the defendant’s traditional office of senior sub-chief was
non-existent & his alleged enstoolment was null & void.

HOLDING:

REASON: *It would be wrong to hold that the management of stool lands fell within the statutory functions of a chief
under section 48 (1) of Act 370. The correct legal position was that that function fell within the customary duties of a
chief. A chief was virtute officii, the trustee and custodian of all stool properties, including realty, attaching to the stool
and entrusted to him on installation. Though the central government had made certain administrative arrangements for
the more efficient discharge of the customary duties by a chief, nevertheless that function appertained to the chief’s
customary powers and not to his statutory duties.
AGBLOE V. SAPPOR

FACTS: Land was transferred to the respondent’s predecessor by the principal heads of the family, without the
concurrence of the family head.

HOLDING: The transfer of land to the respondents’ successor was void ab initio.

REASON: *The head of the family may be considered to be in an analogous position to a trustee from which it follows
that it is quite impossible for land to be legally transferred and legal title given without his consent.

AMANKWANOR V. ASARE

FACTS: The plaintiff’s predecessor acquired land from Nketia, & they agreed that 1/3 would go to Nketia after the farm
started bearing fruits. After the division the plaintiff’s predecessor sold his portion to the defendant’s ancestor. The
defendant subsequently trespassed on the plaintiff’s portion & the plaintiff sued in trespass for damages. At the trial, the
defendant tendered a document purporting to be evidence of the sale of the farm to his ancestor

HOLDING: *The purported document given as evidence of sale was not binding on the stool because at customary law a
document purporting to convey stool land is not binding on the stool unless the elders or at all events the linguist is a
party thereto.

NTORIH V. LAGOS

FACTS: The appellant sued the respondents claiming damages for trespass. The respondents did not make any
proprietary claim to the land but rather tendered evidence showing that there was a proper grant from the local council.

HOLDING: The local council could not make a grant or other disposition of stool land.

REASON: Since the land in dispute was stool land then section of Act 123 applied. By S1, management of all stool land
was vested in the Minister of Local Government, but no rights of ownership were conferred.

GYAMFI V. OWUSU

FACTS: The appellants who were chiefs of Kumawu Traditional Area colluded & fraudulently claimed for themselves
compensation paid by the government in respect of an acquisition of Digya-Kogyae lands which was stool land for a
game reserve. The respondents who were Kumawu stool subjects successfully sued for the recovery of the
compensation. On appeal, counsel for appellants contended that since the lands in question were stool lands, the
respondents had no locus to bring an action since it was a settled customary law principle that the stool occupant was
the right person to bring an action in respect of stool property. They also contended that according to the Administration
of Lands Act, the Minister responsible for lands was the right person to receive the revenue & bring an action in respect
of stool lands & therefore the respondents had no locus.

HOLDING: The respondents had no capacity to sue.

REASON: They had no capacity under customary law to sue in respect of stool property; only the occupant of the stool
could sue in respect of stool property. Also since all the lands were stool lands, the provisions of the Administration of
Lands Act, 1962 (Act 123), were applicable. Under section 17 of the Act, the minister was the proper person to collect
stool revenue and therefore the proper person to maintain the action for the recovery of the compensation moneys paid
to the claimants.

*The exceptions stated in Kwan v. Nyieni will not be extended to stool property, since family property with its incidents
could not safely be equated with stool property.

* At customary law, a chief could not be taken to court by his subjects and asked to render accounts.

OWUSU V. ADJEI

FACTS:

HOLDING:

REASON: *The appellants were competent to bring the action they did because the principle in Kwan v Nyieni providing
exceptions to the general rule that the head of family was the proper person to institute suits for recovery of family land
was not confined to family land. Under customary law wherever those clothed with authority to protect family interests
failed to do so but rather formed an unholy alliance or conspiracy to damage the interests of the family an urgent
situation had to be deemed to have arisen allowing for a relaxation of rules and permitting more responsible members of
the family to protect the endangered family interests.

* Section 17 of Act 123 did not provide that the Minister responsible for Lands (or the Lands Commission) was the sole
vehicle for pursuing revenue claims in respect of stool lands.

OKWAN V. AMANKWA

FACTS: The plaintiff, who was the chief of Brako and head of its Kona family, sued the defendants for an order for
accounts of moneys they had collected from the stool family lands of which the plaintiff claimed to be custodian. The
defendants challenged the plaintiff’s capacity to maintain the action since they contended that the action contravened
the Administration of Lands Act, 1962 (Act 123), s. 17 (1) and (2) and that the court had no jurisdiction to entertain the
claim.

HOLDING:

REASON: Lands in the possession of a chief could be of three kinds: land attached to the stool, lands owned by the chief
for himself and the members of his immediate family (stool family land) and land which belonged to him personally. The
disabilities placed on a chief with regard to the collection of revenue from stool land by section 17 (1) and (2) of the
Administration of Lands Act, 1962 (Act 123), could only apply to stool property properly so-called and not to the latter
two.

REP V. SAFFOUR

FACTS: The chief granted portions of stool land to persons for farming & took various sums of money from them. He was
thus arraigned before the circuit court for unlawfully receiving stool revenue contrary to S17 Act 123, which was per the
act collectable by the Minister responsible for lands & Minerals only. The chief contended that the moneys collected
were “customary drinks” & not revenue as defined in S17.

HOLDING:

REASON:

*Per curiam. The aim of Act 123 is that “The management of Stool lands shall be exercised by the Minister.” That Act
therefore divests stools of the control, and to a large extent, the beneficial enjoyment of stool lands; but there is no
deprivation of ownership and the trappings that go with ownership, and it is imperative that the Act be not interpreted
in such a way as to give an effect which it admittedly did not intend.

BEKOE V. SEREBOUR

FACTS: The plaintiff chief claimed that the land occupied by the defendants was stool land, thus sued for a declaration
that the stool was entitled to half of the proceeds from palm trees felled on that land & also that the defendants should
render accounts to him. Defendants contended that under s17 Act 123 the plaintiff was not the proper person to sue.

HOLDING: The land was stool land and therefore the person who had the capacity to institute an action to recover any
revenue in connection with it was the Minister. Accordingly the plaintiff had no locus standi and his action was
misconceived.

REASON: Where the land in issue was stool land, under section 17 (1) and (2) of Act 123, all the revenue and the
absolute title to the profits of the land were vested in the Minister and should therefore be collected by him.
NANA ASANI V. ATTA PANYIN

FACTS: In a previous action, it was held that the defendants were the overlords of the plaintiffs, though the plaintiffs had
possessory title of the disputed land. The plaintiff subsequently brought an action for a declaration to the effect that
subject to paying his annual tribute to the defendants, he & his subjects were entitled to live on the land. He also applied
for an injunction to restrain the defendants from ejecting the plaintiff’s tenants & workmen from the land. The
defendants counterclaimed, inter alia, for possession of stool lands and account for all moneys received by the plaintiff
from strangers on the land. They alleged that without their knowledge and consent the plaintiff had either sold or leased
the land to strangers and further that the plaintiff had refused to allow the tenants to attorn tenant to the defendants,
the overlords of the plaintiff.

HOLDING:

REASON: Since the dispute involved stool land the claim for an account in the counterclaim contravened the provisions
of section 17 (1) of the Administration of Lands Act, 1962 (Act 123), which entitles only the Minister responsible for stool
lands to sue for account of all moneys, whether tribute, rent or purchase price.

BOATENG V. ADJEI

FACTS: The plaintiffs had sought a declaration that certain properties were the self-acquired property of one Kwasi Baah,
deceased, and that they were entitled to the possession of the said properties. The defendant admitted that the
properties concerned were Baah’s self-acquired properties but contended that (1) by reason of his occupancy of the
Nsenifuor stool, on his death, Baah’s properties became stool property; (2) that Baah had made a gift of his properties to
the stool on his accession; and (3) that the plaintiffs were estopped by conduct amounting to acquiescence from claiming
the properties for their immediate family.

HOLDING:

REASON: *The occupant of a stool is “not. . . the successor of the previous holder but only as the person for the time
being representing something that has never changed.

An occupant of a stool is not the successor of the previous occupant in the sense of his being his legal personal
representative, and he is not by reason merely of his occupancy of the stool in succession to the previous occupant
entitled to the private possessions of the previous occupant unless in addition to being the successor-in-office he is also
elected by the family as the personal successor of the previous occupant.
The stool has a legal personality quite distinct from the individuals and branch families that make up the stool family.
Individuals and branch families are therefore in law capable of holding properties in their own right unaffected by the
incidents which attach to properties of the stool family.

*It is a matter of evidence at every stage in the history of a given property whether that property is self-acquired or
family owned. “Earmarking” or declarations made by newly installed chiefs were the most effective means known to
customary law for securing evidence at some future time for the proof of the facts so declared. It is a rule of evidence
and not a rule of substantive customary law.

ADJUBI V. MENSAH

FACTS: The linguist stool was newly created & a common ancestor of the parties occupied it. He acquired a lot of
property in private life before ascending the stool & he died without earmarking his self-acquired property or indicating
his intention to gift his property to the linguist stool. His successors to the stool were also appointed personal successors
& they had free use of the property until the double succession ceased. The plaintiff thus contended that by customary
law upon the death of O. his self-acquired property became family property and so in her capacity as the present
successor in the family, she was entitled to their enjoyment and occupation. The defendant on the other hand submitted
that upon the death of O. his self-acquired property enured for the benefit of the linguist stool created and first occupied
by O

HOLDING:

REASON: Unless a chief’s private property was earmarked when he ascended to the stool, it became mixed up with the
stool property and could not be recovered after death or on deposition. This rule of customary law, however, was now
subject to the qualification that if it could be proved by evidence that the new ascendant to the stool had by words or
conduct indicated that he regarded the property as privately owned, then the question of ownership and right to
possession of the particular property remained in the family of the stool occupant at death. It was now a rule of evidence
and not a rule of customary law; thus the criterion for adjudicating the ownership and possession of the properties in
question was by the weight of evidence and not by the strict application of the relevant rule of customary law.

*In the absence of evidence in the instant case that O. intended to make a gift or did make a gift of his property to the
customary office, no principle of law could divest his family of the ownership of the property after his death despite the
fact that the property in question had been at the disposal of O.’s successors in office without protest from his family.

SERWAH V. KESSE

FACTS: The plaintiff was enstooled Queen Mother of New Juaben and destooled some years later. The defendant was her
successor. During her reign, the Department of Agriculture paid rehabilitation grants in respect of 28 farms to the
plaintiff and after her destoolment the grants were claimed by her successor the defendant, on the ground that the
farms were stool property since they were paid to the plaintiff as stool occupant and not as beneficial owner of the
property. In the circumstances the plaintiff brought an action claiming declaration of title to the farms, the recovery of
any payments made by the Department of Agriculture to the defendant, an account and also an injunction.

HOLDING:

REASON: The stool of the Queen Mother of Juaben was of recent creation and not an ancestral one and as the stool had
no property which could be inter-mixed with the self-acquired property of its occupant there was no necessity for a
declaration of such private property prior to or upon installation.

*There are many exceptions to that rule one of them is that where the stool holder has to the knowledge of the elders of
the stool, kept his self-acquired property distinct or where whilst he is on the stool he engages in his private business to
the knowledge of the elders, from which he earns an independent income, his failure to make pre-enstoolment
declaration of his self-acquired property will not make his self-acquired property stool property.

REP V. KWADWO II

FACTS: After a boundary dispute between two sub-chiefs, the respondent was given a piece of unclaimed land
(Fahiakobo) to run directly. All revenue accruing was given directly to the respondent. The Lands Commission Secretariat
however insisted that apart from money which fresh stranger farmers paid to chiefs on acquiring land, all other revenue
was to be paid to the Lands Commission. The respondent however argued that his predecessors had always collected
revenue from the Fahiakobo lands and that Fahiakobo was not even on the list of stool lands from which the government
collected stool lands revenue. He was subsequently charged with stealing tributes from stranger farmers and was
convicted by the circuit court.

HOLDING:

REASON: it was indisputable that the management of stool lands and the collection of moneys was the monopoly of the
Secretariat of the Lands Commission through the Administrator of Stool Lands. It was not in dispute that the Fahiakobo
lands were stool lands. Therefore despite the history behind how those lands became part of the stool lands of the
respondent, those lands were under the management of the Stool Lands Commission Secretariat and it was only the
administrator or his duly appointed agent who could lawfully collect revenue from stranger farmers on those stool lands
in accordance with section 48(1) (c) of P.N.D.C.L. 42

Management of Family Property

NKONNUA V. ANAAFI
FACTS: The queen mother who was also the head of the royal family sued for a declaration of title to a farm. She alleged
that the original forest was cultivated by her family members & her deceased uncle developed it into a cocoa farm. He
abdicated before he died. During his tenure, a stool treasury was established to collect all revenue from stool farms. The
disputed farm was not entrusted to the treasury officer & to the knowledge of the elders, he treated it as his private
property. On his abdication, the farm was not added to the inventory of stool property. The defendant, son to the
deceased & present occupant of the stool claimed the farm as stool property.

HOLDING:

REASON: On the evidence the land was the property of the Aduana royal family even before Nana Obeng Akese took
possession of it.

Where a person acquires property with the assistance of a member of his family, that property becomes family property.
Therefore if an occupant of a stool acquires property with the assistance of a member of his family the property is not
stool property but the family property of the stool occupant.

LARBI V. CATO

FACTS: The deceased built a house on self-acquired land & conveyed it to his son. The brother of the deceased brought
an action that the said property was family property thus the deceased was not entitled to dispose of it. The basis of the
plaintiff’s claim was that the deceased had built the house with assistance from various family members. It was further
argued that as the deceased had been educated with the assistance of family funds, his subsequent earnings and
property acquired were stamped with the mark of family property.

HOLDING:

REASON: The customary law of Ghana does not impose upon sons of the family who have received a professional
education with the support of family funds an obligation of repayment, nor do the earnings of such sons take upon
themselves the character of profits earned by the use of family funds.

AMISSAH-ABADOO V. ABADOO (Biney v. Biney)

FACTS: The deceased built a house with the consent of his family on land which was in the possession of the family which
had a building already on it. That building had been conveyed by A’s father to A’s mother, his children with her, & their
heirs & assigns.

HOLDING:

REASON: Since the family was in effective occupation of the land on which the deceased had built the house, he had only
a life interest in the house with no alienable interest which he could dispose of by will. Larbi v. Cato distinguished.
YOGUO V. AGYEKUM

FACTS:

HOLDING:

REASON: By customary law where a child or ward worked with his father or guardian, he did not become owner with the
father or guardian of the income of their joint labour; whatever came out of that joint effort belonged exclusively to the
father or the guardian.

TSETSEWA V. ACQUAH

FACTS: The plaintiff alleged that the land had been transferred to him thorough a will made by his father. The second
defendant also claimed that since the land was worked on by family members, it was family property thus could not be
transferred by testamentary disposition.

HOLDING:

REASON: Individual property becomes family property by omission of its owner to make a will.

NWONAMA V ASIEDU (Manukure v. Aniapam)

FACTS:

HOLDING:

REASON:

Alienation

HAUSA V. HAUSA

FACTS: The deceased died with no issue & the plaintiffs i.e. his paternal brothers & sisters alleged that they were entitled
to succeed his self-acquired property. They purported to appoint the defendant as caretaker, & he in turn sold the house.
The plaintiffs thus brought an action against the defendants for a declaration to title & a declaration that the purported
sale was void. The defendant counterclaimed for a declaration to title, contending that the deceased made a gift of the
house to him before he died & the plaintiffs had witnessed the making of the gift.
HOLDING:

REASON: The many decisions of the courts which state that when a man dies intestate his property becomes family
property can be understood to mean at least this: that title to such property vests automatically in the class of entitled
persons commonly called the family, though the group of persons covered by the term obviously differs according to
whether one is dealing with a patrilineal or matrilineal community. If this class of persons is identified, as was the case in
this action, then it obviously is entitled to institute an action for a declaration of its title to the property where this is
disputed. A head of family or successor is patently only a representative or agent of the class of entitled persons.

NUNEKPEKU V. AMETEPE

FACTS: The plaintiffs brought an action against the defendant for the recovery of possession of land & an order for the
defendant to vacate the land. They claimed defendant was not a member of the family thus was not entitled to occupy
family land. The defendant contended that he was a member of the family & therefore was entitled to occupy & cultivate
the disputed lands.

HOLDING: The plaintiffs’ allegation that they are entitled to recovery of possession of the land in dispute was not proved,
and that the evidence of their witnesses discredited it.

REASON: An action for recovery of possession was a wrong against possession, and therefore the main fact which a
plaintiff must prove in order to succeed was possession. But where, as in the instant case, the defendant pleaded
possession then it was incumbent upon the plaintiff to prove that he was in possession at the time the defendant
entered upon the land and wrongfully dispossessed him of it.

AWORTCHIE V. ESHON

FACTS: The issue was whether a family head has to obtain concurrence of family members before selling family land in
case of debt arising

HOLDING: All members must meet with strangers as witnesses to concur for the payment of the debt.

KWAN V. NYIENI

FACTS: The family members purported to remove Osei Kojo as family head on grounds that he was squandering family
property. It was held at an arbitration that his removal was not in order, but the family went ahead to appoint the
plaintiff as a head. Osei Kojo subsequently mortgaged cocoa farms which were family property to the defendant. The
plaintiff purporting to act as family head brought an action to the effect that the farms were family property & the
mortgage was without the knowledge & consent of the family. The courts held that the award of the arbitrators was
binding on the family & Osei Kojo was still family head. They also held that the farms were family property mortgaged
without the consent of the family. They however gave judgment for the defendant for the recovery of the sum for which
the farms were mortgaged to him, payable by the family’s caretaker. The defendant, in default of payment, sold the
farms & the plaintiff sued for a declaration that the farms were still family property & an order to set aside the sale. His
action was dismissed mainly on grounds that he was not the family head nor authorised by the family to sue. The
plaintiff appealed.

HOLDING:

REASON: as a general rule the family head is the proper person to sue for recovery of family land- to this general rule
there are exceptions in certain special circumstances, such as:

(i) Where family property is in danger of being lost to the family, and it is shown that the head, either out of personal
interest or otherwise, will not make a move to save or preserve it.

(ii) Where, owing to a division in the family, the head and some of the principal members will not take any steps.

(iii) Where the head and the principal members are deliberately disposing of the family property in their personal
interest, to the detriment of the family as a whole.

In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that
he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is
satisfied that the action is instituted in order to preserve the family character of the property.

ALLOTEY V ABRAHAMS

FACTS: The plaintiff sued the defendants for trespass to land & claimed a declaration of title to land, through a deed of
conveyance by the Mantse of Sempe with the consent & concurrence of his elders.

HOLDING: A deed of conveyance of stool or family land executed by the occupant of the stool or the head of the family
and a linguist and/or other principal elders of the stool or family, purporting to be with the necessary consent, is valid
until it is proved that such consent and concurrence were not in fact obtained.

REASON: *According to native custom it is only the occupant of the stool or the head of the family who is entitled, with
the consent and concurrence of the principal elders of the stool or family, to alienate stool or family land. There can be
no valid disposal of stool or family land without the participation of the occupant of the stool or the head of the family;
but there can be a valid alienation of stool or family land if the alienation was made by the occupant of the stool or the
head of the family with the consent and concurrence of some, but not necessarily all, of the principal elders of the stool
or family. The occupant of the stool or the head of the family is an indispensable figure in dealing with stool or family
land.
ENNIN V. PRAH

FACTS: The deceased’s self-acquired property became family property upon his death, & his successor sold the farms to
the defendant. The plaintiff thus brought an action that the deceased’s immediate family was one of four branches of a
larger family, & since the sale had been done without the consent of the overall family head, it was bad.

HOLDING:

REASON: The Head and principal members of the wider family had no interest whatever in the properties left by the
deceased. Their concurrence was not in any way necessary to alienation by the successor and/or Head of the deceased’s
immediate family group, tracing from his mother.

ATTAH V. AIDOO

FACTS: The first defendant succeeded the deceased & pledged his properties to the other defendants. He later removed
from office & the plaintiff was appointed in his place. The plaintiff brought an action claiming inter alia that the pledge &
subsequent sale was unlawful.

HOLDING:

REASON: The plaintiff was under a duty to prove that in fact no consent of the principal elders of the family was
obtained. On the evidence he failed to discharge this burden. The farms having been in possession of the fourth
defendant for about twelve years it was too late for the plaintiff and the family to complain.

LOKKO V. KONKLOFI

FACTS: The defendant, a subject of the Berekusu stool, offered his land as security for a loan from the plaintiff. The loan
not being paid, the plaintiff brought an action for the recovery of the loan & judgment was given for him. The plaintiff
subsequently took out a writ of fi fa & the defendant’s village, cocoa & sugar cane farms were attached. The claimant
thus interpleaded that the land in question was attached to the Berekusu stool & therefore could not be seized in
execution.

OBITER: By native law the family property could not be seized for the debt of one of the members, but any member of
the family might be panyarred until the family paid the debt and expenses; the English law put an end to the panyarring,
but allowed the family to retain the advantage of non–seizure for a private debt.
ADJEI V. APPIAGYEI (Allotey v. Abrahams)

BAYAIDEE V. MENSAH (Manko v. Bonso)

FACTS: The plaintiff brought an action to recover a piece of land in Odumase from the defendant. The plaintiff claimed to
have acquired the land from the defendant’s family head, & had remained in possession until some months before the
action was brought. The defendant alleged that the family head had made the purported grant without the concurrence
of family members.

HOLDING: Whatever right of impeaching the sale the family possessed is barred by their acquiescence and the plaintiff’s
continued course of undisturbed possession.

REASON: Although concurrence of family members ought to be given for there to be a valid sale of family land, the sale is
not itself void but voidable. The family can therefore assert their rights timeously, restoring the purchaser to the position
he was in before the sale. This is obviously not the case, since here the purchaser has possessed an undisputed
ownership for a series of years, has cultivated and improved the land, and has established a home upon it.

AGBLOE V. SAPPOR

FACTS: Land was transferred to the respondent’s predecessor by the principal heads of the family, without the
concurrence of the family head.

HOLDING: The transfer of land to the respondents’ successor was void ab initio.

REASON: *The head of the family may be considered to be in an analogous position to a trustee from which it follows
that it is quite impossible for land to be legally transferred and legal title given without his consent.

DOTWAAH V. AFRIYIE

FACTS: The first defendant mortgaged the land to the 2nd defendant, & the plaintiff, alleging that she had been appointed
successor of the deceased, sued for a declaration that the land was family property & the mortgage was void.

HOLDING: The present mortgage having been granted in the face of the opposition of the plaintiff, who was rightly held
by the trial judge to be the deceased’s successor, was void of effect.

REASON: The head of family or the successor is an indispensable person in the alienation of family land; an alienation of
family property by the head of family or a successor, purporting to be with the consent and concurrence of the principal
members of the family, is voidable at the instance of the family, if they act timeously; but a conveyance made by any
other member without the head of family or the successor, as the case may be, is void ab initio.
DAATSIN V. AMISSAH

FACTS: A owed B, & both debtor & creditor died without payment. The head of B’s branch of the family thus brought an
action against the head of A’s branch to recover the debt owed.

HOLDING: The family of a deceased person are not liable for the debts of the deceased and an action to recover such
debts cannot be maintained against the head of the family.

FOSU V. KRAMO

HOLDING: Where there is no duly appointed head of a family or where the duly appointed head is absent the right to
represent the family, to take charge of family property and generally to exercise the powers of head of the family is
vested in the eldest male member of the family, in this case A. Transactions solemnly entered into by those authorised to
act on behalf of the family in the absence of the elected head, where third parties have thereby acquired rights and
incurred liabilities, cannot be impeached by the elected head on his return.

Litigation

KWAN V. NYIENI

FACTS: The family members purported to remove Osei Kojo as family head on grounds that he was squandering family
property. It was held at an arbitration that his removal was not in order, but the family went ahead to appoint the
plaintiff as a head. Osei Kojo subsequently mortgaged cocoa farms which were family property to the defendant. The
plaintiff purporting to act as family head brought an action to the effect that the farms were family property & the
mortgage was without the knowledge & consent of the family. The courts held that the award of the arbitrators was
binding on the family & Osei Kojo was still family head. They also held that the farms were family property mortgaged
without the consent of the family. They however gave judgment for the defendant for the recovery of the sum for which
the farms were mortgaged to him, payable by the family’s caretaker. The defendant, in default of payment, sold the
farms & the plaintiff sued for a declaration that the farms were still family property & an order to set aside the sale. His
action was dismissed mainly on grounds that he was not the family head nor authorised by the family to sue. The
plaintiff appealed.

HOLDING:

REASON: as a general rule the family head is the proper person to sue for recovery of family land- to this general rule
there are exceptions in certain special circumstances, such as:
(i) Where family property is in danger of being lost to the family, and it is shown that the head, either out of personal
interest or otherwise, will not make a move to save or preserve it.

(ii) Where, owing to a division in the family, the head and some of the principal members will not take any steps.

(iii) Where the head and the principal members are deliberately disposing of the family property in their personal
interest, to the detriment of the family as a whole.

In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that
he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is
satisfied that the action is instituted in order to preserve the family character of the property.

AKROFI V. OTENGE

FACTS: The plaintiff in his capacity as family head sued for a declaration of title to a farm & an order to set aside the sale
of the farm in execution of a judgment debt against a family member, on grounds that the farm was family property thus
could not be sold to satisfy personal debts.

HOLDING:

REASON: Since the plaintiff’s evidence that he was the head of his family was supported by a member of the family, the
defendants who denied his capacity should have mentioned the person they contended was the head of family and, if
necessary, called witnesses to support them, especially since in Ghanaian local communities the heads of the various,
families were well-known and it was thus easy to come by that evidence.

Accountability of the Family Head

Head of Family (Accountability) Act, PNDCL 114

(1) Despite a law to the contrary, a head of family or a person who is in possession or control of, or has custody of, a
family property is accountable for that property to the family to which the property belongs.

(2) A head of family or a person who is in possession or control of, or has custody of, a family property shall take and
file an inventory of the family property.

HEYMAN V. ATTIPOE

FACTS: The plaintiff claim that their common ancestress died intestate, thus the land had become family land to be
enjoyed by all her direct descendants. The defendant also contended that the ancestor disposed of the land to her
daughter alone before she died, & her daughter died intestate thus it became the sole property of her direct
descendants with the exclusion of the other direct descendants of the ancestor.

HOLDING:

REASON: The ancestor died while in possession of the land. The property is therefore family property for all the direct
descendants of the ancestor including the plaintiff & descendant.

ANNAN V. KWOGYIREM

FACTS: The defendant as the family head of the wider family was given letters of administration in respect of the
deceased’s self-acquired properties, since he died intestate. The plaintiff was subsequently appointed successor by the
deceased’s immediate family & he called upon the defendant to account for the deceased’s properties in his possession
but he refused. The plaintiff thus instituted an action claiming account.

HOLDING: The defendant is accountable to the plaintiff.

REASON: The scope and extent of the head of family’s immunity to accountability in respect of family property in his
possession was limited to properties attached to the post of headship and not self-acquired properties of a deceased
member dying intestate, which by operation of law came under the head’s control where no customary successor to the
deceased had been duly appointed to take charge of them.

HANSEN V. ANKRAH

FACTS: The appellants were heads of two branches of the family, & the respondents were the overall head family head &
the head of one other branch. The appellants brought an action against the respondents for account of money received
as compensation for the compulsory acquisition of their family land. The respondents raised a preliminary objection on
grounds that they were not accountable to the appellants at customary law.

HOLDING:

REASON: The customary rule that a head of family, who symbolised the hopes and aspirations of the family which
constituted the core of Ghanaian society, was not accountable in court to the writ of a member of the family, whether a
principal or otherwise, while he still held the status of a head was reasonable and justifiable because the head should
have the capacity to handle the routine orders and disorders of the family. The head of family was however accountable
to the family at a family meeting for his stewardship. Consequently a member of family who considered that an
incumbent head of family was incompetent, irresponsible or frivolous in the handling of family matters or was dissipating
family funds could ventilate his grievance against the head at a family meeting.
The customary law principles governing the election and destoolment of a chief, his power over stool property including
funds were not dissimilar to those appertaining to the appointment and removal of family heads and their powers over
family property.

Election & Deposition of Family Head

WELBECK V. CAPTAN

FACTS: Following a dispute between two factions of the family, a meeting was held to appoint the family head & the
plaintiff’s supporters did not attend. The 2nd defendant was appointed family head & it was argued for the plaintiff that a
dispute existed between the two branches of the family; that these branches had not been reconciled, as they should
have been, before a meeting to appoint a head could take place; and, that the absence of principal members of the
family from the meeting that appointed Hammond rendered that appointment nugatory.

HOLDING:

REASON: On the facts the family members who, at the final meeting, appointed the second defendant as head of the
family, were representatives of both branches of the family. There was thus no question of one branch of a family, in
dispute with another branch, attempting to appoint the head of the family in the absence of the second branch and
similarly there was no question of reconciliation to be brought about between the two branches before a head could be
elected.

It is open to the members of a family, at any time, to make a new appointment to the headship of the family, provided
this is done in due form.

Although the absence of principal members from It family meeting may render nugatory decisions taken at such a
meeting, yet this will not be so if the members concerned have been invited to the meeting but for reasons of their own
have not attended.

Where a member of a family seeks to avoid a decision taken at a family meeting on the grounds that the meeting was
not representative or that indispensable principals were not in attendance, the burden of proof is upon him to establish
the non-representative character of the meeting or that the attendance of absent members was essential to the validity
of the proceedings.

ABAKAH V. AMBRADU

FACTS: The defendant family head was called to render accounts of rents collected in respect of family property by the
plaintiff on the authority of some family elders. The defendant challenged the authority of the plaintiff to call upon him
to account & the plaintiff replied with charges preferred against him for mismanagement of property. A first meeting was
convened & the defendant attended but left, alleging that it was not properly constituted. A 2nd meeting was convened
but the defendant was absent, attending a family member’s funeral. The meeting still continued & he was removed from
office & replaced by the plaintiff, who brought an action for the recovery of all family documents in his possession.

HOLDING:

REASON: The right of removing the head of family from office is vested in the principal members of the family and the
act of the majority would be binding upon the rest, but where a head is removed, as in this case, without notice of the
meeting being given to all sectional heads, the act of the sectional heads who were present cannot be binding upon the
rest, and unless it is acquiesced in, it is ineffective.

(2) In certain circumstances a head of family may be removed in his absence where his absence is without justification.
Where a head of family is absent because he is bound by custom to be present at the funeral of a member of the family,
his absence is justified.

(3) A head of family cannot be removed without notice. A complaint must be lodged against him and he must be
summoned to answer it.

(4) It is not necessary to state in a notice summoning a family meeting that the meeting is being convened for the
purpose of deposing the family head because nobody knows whether the head would be removed until the charges
preferred against him are proved. It is otherwise when the meeting is summoned to appoint a head of family for, as a
matter of course, the headship must first become vacant to the knowledge of the family.

BANAHENE V. ADINKRAH

FACTS: The plaintiff was elected successor to the deceased & family head at a meeting presided over by the Gyasehene.
The defendants who were appointed caretakers of the deceased’s farm disputed the validity of the plaintiff’s
appointment as successor & refused to hand over the farms to him. The plaintiff sued for a declaration of title to &
recovery of the property. An issue arising for determination was whether the Gyasehene invited by the family to preside
over the meeting at which the plaintiff was elected as successor was a meddlesome interloper.

HOLDING:

REASON: A meeting for the appointment of the head of family could be convened by the most senior member of the
family, male or female, by two or more elders or principal members of the family, or even by any respectable member of
the community, or an elder or chief of the quarter or town upon the request of the members of the family, and in this
connection it was not only reasonable but also prudent and desirable in cases of internal dissension in the family for such
a meeting convened for the purpose of electing a successor to be chaired by a neutral person of standing in the local
community who was acceptable to all sides.
LARTEY V. MENSAH

FACTS: The plaintiff, suing as head of his family, sought to recover possession of certain deeds. His authority to sue as
head was challenged by the defendants. On the plaintiff's own evidence, the co-defendant, who had been the head of
the family, resigned, whereupon the elders present elected the plaintiff as family head. Also from the evidence, some of
the members of the family who would have been entitled to participate in making the appointment had not been
notified of the intention to appoint and had not attended the meeting.

HOLDING:

REASON: The appointment of head of a family should be made by all the principal elders of the family at a family
meeting. When it is intended to make an appointment, a notice convening a family meeting and stating the intention to
appoint at such meeting should be given to all those entitled to attend and participate in the appointment. Failure to
give such notice renders invalid any appointment made at a meeting from which any elders entitled to participate in the
appointment are absent, unless such absent elders subsequently ratify the appointment thus made.

HERVI V. TAMAKLOE

FACTS:

HOLDING: The appointment of a person as head of a family is neither automatic nor does it devolve on any person as a
matter of right. In selecting an appointee the elders are concerned primarily with choosing the person most fitted for the
post: they therefore may go outside the natural line of descent if they think fit, i.e., in patrilineal areas a head may be
selected from the maternal line if no suitable candidate is available in the male line; likewise an appointment can be
made from the paternal line in a matrilineal area.

In Quartey v. Martey, Ollenu J held that by customary law it was the domestic duty of the wife to assist him in carrying
out his duties of his station in life e.g. farming or business. The proceeds from such endeavours are the personal property
of the man, & not joint property of wife & children.

In Abebrese v. Kaah, the courts held that

In Anang v. Tagoe the courts held that where a wife made contributions towards the requirements of a matrimonial
home in the belief that the contribution was to assist in the joint acquisition of property, the court of equity would take
steps to ensure that belief materialized.

In Mensah v. Mensah by Bamford Addo J that there was no evidence that the intention of the parties in acquiring the
main house was any different from that in respect of the extension to the house, nor was there any evidence of a prior
agreement between the parties that the extension was to belong solely to one party alone. The principle that property
jointly acquired during marriage became joint property therefore applied; and such property was to be shared equally on
divorce as the ordinary incidents of commerce had no application in marital relations between husband and wife who
jointly acquire property during marriage. This principle of equitable sharing of joint property on divorce had been given
statutory expression in the provision of section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) which empowered
the court in a divorce case to settle proprietary rights of the parties on “joint and equitable basis;” and was also given
constitutional effect and force in article 22 (3) (b) of the Constitution, 1992 which provided, inter alia, that assets which
were jointly acquired during marriage should be distributed equitably between the spouses upon the dissolution of the
marriage.

In Gladys Mensah v. Stephen Mensah, it was held that common sense and principles of general fundamental human
rights requires that a person who is married to another, and performs various household chores for the other partner
like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s
catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally
supervising the home such that the other partner, has a free hand to engage in economic activities must not be
discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.

In Quartson v. Quartson, it was held that where a spouse makes substantial financial contribution to the acquisition
pursuant to an agreement or inferred intention by the couple that the property acquired should be owned jointly, the
court will hold the property to be jointly owned. What amounts to substantial contribution depends on the facts of the
case. The decision in Gladys Mensah v. Stephen Mensah, supra is not to be taken as a blanket ruling that affords spouses
unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect
will continue to be shaped and defined to cater for the specifics of each case. The ruling, as we see it, should be applied
on a case by case basis, with the view to achieving equality in the sharing of marital property. Consequently, the facts
of each case would determine the extent to which the judgment applies.