ASSEH v.

ANTO
[1961] GLR 103

Division: IN THE SUPREME COURT

Date: 20TH FEBRUARY, 1961
Before: KORSAH, C. J., VAN LARE AND SARKODEE-ADOO,
JJ.S.C.

Customary law—Land—Usufructuary interest—Whether transferable—Distinction between title

simpliciter and possessory title—Gift inter vivos—Whether maxim quicquid plantatur solo solo cedit
known to customary law.

Membership of family—Slaves Emancipation Ordinance, Cap. 108 (1951 Rev.) S.2.

HEADNOTES
The late Opanyin Yena cultivated eleven cocoa farms on the land of the Barfo family, with their
permission. Before his death, he had given two of the said farms to Apreku. Apreku’s successor had
successfully brought an action of declaration of title to the two farms in the Ajumako Native Court
“B” of Odoben, which was confirmed by the Land Court (Ollennu, J.). On appeal to the Supreme
Court it was argued that:-
(1) Opanyin Yena had elected to become a member of the Barfo family and therefore on his death,
his farms on Barfo family land became the property of the Barfo family;
(2) that during his lifetime, Opanyin Yena could not without the consent of the Barfo family make
a gift of any of his farms on their land to any one not a member of the family;
(3) that if any such gift were made to Apreku, it was limited to Apreku’s lifetime; and
(4) that Apreku’s claim to be the successor of Opanyin Yena is based on the fact that Opanyin
Yena was a slave of Abokyi, the pre-

[p.104] of [1961] GLR 103

decessor of Apreku and such claim is both repugnant to natural justice and also against the law
of Ghana.
Held:
(1) the contention that the plaintiff-respondent’s claim is based on slavery cannot be sustained: it
was not canvassed in the trial native court nor in the Land Court, and cannot now be allowed to
be canvassed;
(2) on the facts Opanyin Yena did not sever his connection with the Abokyi family to become a
member of the Barfo family;
(3) the legal maxim quicquid plantatur solo solo cedit is not applicable to land held under
customary tenure. Once permission has been obtained from the owner of the land to build or to
make a farm on the land, the house or the farm becomes and remains the property of the
licensee. Opanyin Yena was therefore possessed of a self-acquired interest in respect of the
eleven farms;
(4) Opanyin Yena transferred his right, interest and title in the two farms to Apreku without
limitation during his own lifetime. On the death of Apreku such interest passed to his heirs and
successors. The plaintiff-respondent had therefore a possessory title.
Per van Lare, J.S.C. “so long as {the plaintiff-respondent} or his descendants do not abandon the
farms they are entitled to as much security as if they are owners provided they recognise the title of
the real owners of the land.”

CASES REFERRED TO
(1) Attopee v. Nancy (1853) Sar. F.C.L. 149; Grif. Dig. 92
(2) Boun v. Steele (1893) Sar. F.L.R. 77
(3) Amma v. Nelson (1911) D. & F.’11-’16,2; Grif. Dig. 93
(4) Lyall v. Dougan (1890) Sar. F.L.R. 56; Grif. Dig. 93
(5) Roberts v. Awortchie (1884) Sar. F. C. L. 149; Grif Dig. 93

NATURE OF PROCEEDINGS
APPEAL from the judgment of the Land Court, Cape Coast, (Ollennu, J.) on the 13th March, 1957,
confirming the judgment of the Ajumako Native Court “B” of Odoben granting the plaintiff
declaration of title to two cocoa farms.

COUNSEL
E. Akufo-Addo for the appellant.
Dr. Danquah for the respondent.

JUDGMENT OF KORSAH C.J.

This is an appeal, by special leave, from the judgment of the Land Court which confirmed the
judgment of the Ajumako Native Court “B” of Odoben in a suit wherein the plaintiff’s claim was: (1)
for declaration of title to two cocoa farms situate at Bremaku on the Odoben Stool land, (2) an
account of proceeds thereof; and (3) perpetual injunction.
The plaintiff’s case is that the two cocoa farms were cultivated by his relative Opanyin Yena who
during his lifetime parted with the farms as gifts to the plaintiff’s predecessor Kweku Apreku; that
Apreku took possession of the farms, reaped and enjoyed the proceeds thereof during the lifetime of
Opanyin Yena; that Kweku Apreku survived Opanyin Yena, and continued to reap and enjoy the
proceeds of the said farms until Apreku died; that he, plaintiff, as the successor of Apreku is therefore
entitled to the said cocoa farms.
The defendant does not dispute the following facts: (a) that the two cocoa farms were cultivated by
Opanyin Yena, (b) that Opanyin Yena

[p.105] of [1961] GLR 103

parted with them to Kweku Apreku, (c) that Apreku survived Opanyin Yena, and continued to reap
and enjoy the proceeds of the said cocoa farms until he died, and (d) that the plaintiff is the successor
of Apreku. But the defendant contends that the said gift was limited to the life of the said Kweku
Apreku, the plaintiff’s predecessor, consequently, the said farms reverted to one Mr. Assimah as
successor of the late Opanyin Yena by virtue of the instrument which was tendered in evidence at the
trial, marked exhibit A, probate of which was granted on the 23rd September, 19601(1), as the last
will and testament of Kweku Opanyin Yena.
In the judgment delivered by the native trial court on the 13th December, 1956, it will be observed
that after discussing the evidence with meticulous care, it was held:
“the court is satisfied that the two cocoa farms were given to Apreku by way of gift forever by late
Opanyin Yena during his lifetime which means that Apreku, his heirs, executors, administrators,
successors etc. are entitled to make use of this gift forever. And that is the reason why Apreku made use
of this gift till he died. Also the Court is satisfied that Opanyin Yena cultivated about eleven cocoa farms
more or less and out of these eleven only two were given to Apreku. Following the evidence adduced by
plaintiff and his witnesses the court believe the evidence of the foregoing on the part of plaintiff and his
witnesses in all respect. Also the court is of opinion that defendant’s pretentious claim of ownership of
the two only cocoa farms given to Apreku by way of gift is against natural justice.”

On appeal to the Land Court, Ollennu J., in dismissing the appeal said: “The native court reviewed the
evidence led by both sides with meticulous care, and accepted the plaintiff’s case. Their findings are
amply supported by the evidence before them”.
Counsel for the appellant introduced four new grounds of appeal. [His lordship read the grounds
which are set out in the headnote and continued:] It will be seen that these grounds introduce issues
which were not canvassed either at the trial or on the appeal before the Land Court. We, however,
allowed counsel to argue them because of the allegations which counsel contended might reasonably
affect the legal status of Opanyin Yena with the consequential effect upon his estate.
By the first ground, it is contended that Opanyin Yena was originally a slave of the Abokyi family of
Akim Swedru, but had become a member of the Barfo family of Odoben because he voluntarily
elected to stay with the latter family at Odoben and cultivated the farms on the land belonging to that
family. This argument overlooks the fact that assuming Opanyin Yena to have been originally a slave
of the Abokyi family, he became a free person by virtue of the Slaves Emancipation Ordinance2(2),
and under the proviso to section 2 thereof which reads:
“All persons who after the 5th day of November of the year one thousand eight hundred and
seventy-four shall have been or shall be born within the limits to which this Ordinance applies, who
under the native laws of the protected territories, are or may be liable to be holden, or but for this
Ordinance would or might be, or would or might be liable to be holden in slavery are, and shall be, and
are hereby declared free persons to all intents and purposes: Provided that except

[p.106] of [1961] GLR 103

in so far as is inconsistent with this Ordinance and with the Slave-dealing Abolition Ordinance, nothing
herein contained shall be construed to diminish or derogate from the rights and obligations of parents
and of children, or from other rights and obligations, not being repugnant to the law of England, arising
out of the family and tribal relations customarily used and observed in the protected territories.”

As a member of the Abokyi family of Akim Swedru, Opanyin Yena was thereafter entitled to all the
rights and benefits of his membership and could not without notice to the family and by deliberate
public act cease to be a member of that family. I can find no evidence on record which supports the
contention now advanced in this court, that Opanyin Yena ever contemplated severing himself from
membership of his original family at Akim Swedru; on the contrary, his continued association with
the members of that family and the gift of the two cocoa farms to Kweku Apreku, the head of that
family, clearly negatived the suggestion that he had severed his connection with that family. In my
view, exhibit A, the document by which Opanyin Yena purported to dispose of his self-acquired
property, namely the cocoa farms he had cultivated at Odoben, does not by customary law support the
view propounded by the appellant that he thereby severed his connection with the Abokyi family of
Akim Swedru.
The second and third grounds of appeal introduce a novel proposition unsupported either by the
evidence on record or by any legal authority. Throughout the proceedings even members of the Barfo
family who gave evidence did not contend that such a gift would be void nor did they say that it was
without their knowledge; Mr. Assimah, head of that family who gave evidence for the defendant
recognised the gift, but qualified it by saying it was limited to the life of Kweku Apreku, the
plaintiff’s predecessor, but did not contend at the trial that the gift was either void or even voidable. If
such a contention were tenable, it would certainly have been canvassed in the native court at the trial.
There is ample authority for the view that the legal maxim quicquid plantatur solo solo cedit is not
applicable to land held under native tenure. Once permission of the owner has been obtained to build
a house or to farm on family land the house or farm remains the property of the licensee and his heirs
and successors until the house is demolished or destroyed, when the land would revert to the owners.
In Attopee v. Nancy3(3) the plaintiff gave the defendants land on which to build a house. A house
having been built, the plaintiff claimed the land back. Held: the plaintiff must either pay the cost of
the house or accept payment for the land. In Boun v. Steele4(4) the plaintiff bought land on which
was a house erected by permission of the vendor. Held: that the plaintiff had no right to the house. In
Amma v. Nelson5(5) the plaintiffs built houses on land which apparently belonged to another member
of the family, and remained in undisturbed occupation for years, Held: that by Ga custom they had
acquired the right to occupy their houses as long as they kept them up. In Lyall v. Dougan6(6) it was
held that where the

[p.107] of [1961] GLR 103

house belonged to a judgment debtor, but not the land on which it stood, execution could issue against
the house only. In Roberts v. Awortchie7(7) execution having issued against the defendant who had a
house on company (Asafo) land and the land having been attached, it was held that the land could not
be attached but that the house materials could.
There are the innumerable instances of farmers pledging and in some cases executing mortgages on
their farms for loans for many years, but in no case has it been held that such pledge or mortgage
necessarily conveyed title to the land on which the farm is cultivated, except where the parties clearly
indicate such intention, and the landlord or owner of land gives his consent by executing the deed
declaring such intention.
It is therefore obvious that in the absence of clear evidence to the contrary, the permission which was
granted to Opanyin Yena to cultivate cocoa farms on Barfo land must be presumed to exclude title to
the land as it is the practice and in accordance with native tenure and customary law. It must also be
presumed that the right interest and title of Opanyin Yena in the said farms would in the absence of
clear evidence to the contrary enure to the benefit of his heirs and successors if he died without
parting with the said farms. On the other hand, where there is such clear evidence, as in this case,
proving that he transferred his right interest and title in the two farms to Kweku Apreku without
limitation during his own lifetime, then the said Kweku Apreku having stepped into the shoes of
Opanyin Yena, such a gift inter vivos cannot be defeated by exhibit A which can take effect only in
respect of property the testator possessed at the time of his death. Consequently on the death of
Kweku Apreku such interest and title to the two cocoa farms which he had would pass to his heirs and
successors.
Lastly, the contention of the appellant that plaintiff’s claim is based on slavery cannot be sustained. It
was not an issue before the native court nor was it canvassed during any stage of the proceedings prior
to the 7th November, 1960, when the supplementary grounds of appeal were filed.
For these reasons this appeal should be dismissed.

JUDGEMENT OF VAN LARE J.S.C.

I agree with the judgment that my lord the Chief Justice has just read. It is common ground that the
late Opanyin Yena obtained permission of the real owner of the land on which the disputed farms
were cultivated and there is no denial that he was in possession of the farms with leave and licence,
that is to say without paying tribute. He became an owner of a self-acquired interest or estate in
respect of the farms and was possessed of title that may be used in the sense of usufructuary right - a
very usual form of native title which is a qualification or burden on the final or absolute title of the
owner of the land. Such interest according to the authorities is transferable so long as title of the
allodial owner is recognised. This is the interest I consider to be the matter in controversy between the
parties.
There is a concurrent finding of fact by the courts below, with which finding there is no ground for
interfering, that the late Opanyin Yena had

[p.108] of [1961] GLR 103

transferred this interest of his, during his lifetime, to Kweku Apreku whose successor is the plaintiff
in the case. The plaintiff was therefore entitled in my view to judgment, but as there is some nicety
between title simpliciter and possessory title as I have indicated, and in view of the claim being a
simple declaration of title, in dismissing the appeal I would, however, clarify the position by saying
that the true position is that the plaintiff-respondent has a possessory title to the two farms in dispute
and so long as he or his descendants do not abandon the farms they are entitled to as much security as
if they are owners provided they recognise the title of the real owners of the land.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I also agree that the appeal should be dismissed and the position of the respondent clarified as
indicated by my lord van Lare.

DECISION
Appeal dismissed.
 Endnotes
1 (Popup - Footnote)
1 Re Yena dec’d [1960] GLR. 19
2 (Popup - Footnote)
2 Cap 108 (1951 Rev.)
3 (Popup - Footnote)
3 (1853) Sar. F.C.L. 149; Griffith’s Digest, 92
4 (Popup - Footnote)
4 (1893) Sar. F.L.R. 77; Griffith’s Digest 93
5 (Popup - Footnote)
5 (1911) D. & . ‘11-’16,2; Griffith’s Digest, 93
6 (Popup - Footnote)
6 (1890) Sar. F.L.R. 56; Griffith’s Digest, 93
7 (Popup - Footnote)
7 (1884) Sar. F.C.L. 149; Griffith’s Digest, 930