H. E. Golightly & Anor V. E. J. Ashrifi & Ors (1955)

Native Law and Custom—Ga tenure of land—Alienation—Flexibility of custom—Application of customary law—Courts Ordinance, section 87 (1).

Facts

“Land belongs to the community, the village or the family, never to the individual . . . He (viz. the head of the community or village or family) has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family.

He cannot make an important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger from the judgment of the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria, adopting the report on land tenure in West Africa made by Rayner, C.J., as substantially true: 1921, A.C. 399.

“The chief characteristic feature of native law is its flexibility . . . the most important incident of tenure which has crept in and become firrqly established as a rule of native law is alienation of land Webber, J., in Brimah Balogun and Others v. Saka ChiefOshodi (1930), 10 N.L.R. 36, p. 53.

The effect of section 87 (1) of the Courts Ordinance (text in judgment infra) is that where (as in this case) all the parties are natives the native customary law shall be deemed applicable unless it is shown that it should not be.

The land in question had been until recently farming land, but a suburb of Accra began to develop there and a scramble to sell and buy ensued. In origin it belonged to the Korle House and the Korle priest was the caretaker. The Korle House is part of the Gbese Stool, which is part of the Ga State.

The questions arising out of the transactions made by one or another of those three or by families owing allegiance to them were principally as to who could alienate land out and out and in what circumstances, having regard to the nature of the tenure of the land and to rights of families or members in occupation.

In particular three families claimed rights of absolute ownership and freedom of alienation under old grants, but the trial Judge found against them. In regard, however, to one of them (namely the Odoi Quao family) when in 1933 Government acquired some land compulsorily in their holding, neither the Ga Manche nor the Gbese Manche put in a claim, and the Korle priest testified that that family were the owners; and when in 1950 Government wanted to put up an electrical testing box on the land, the Gbese Manche wrote that he had no claim over the land, and the Ga Manche wrote that the head of that family was the owner of the land.

The numerous cases concerning the land in question were consolidated. The findings of the trial Judge were that any member of the Gbese Stool could farm a portion of the land, that the Korle priest could make grants of land not so used to members of the Stool for residence or trade, that a pledge or lease in customary law to a stranger to the Stool needed the consent of the Gbese Manche, but that outrightsales or mortgages in English form with a right ofsale needed the consent of both the Gbese Manche and the Ga Manche, the Korle priest being the third controlling authority with them, and thatsuch sales could not be approved unless a Stool debt was in existence without the fault of the individual and unless the principal members of the family involved had consented.

The main criticism on appeal was against the finding that Stool land could never be sold outright except to satisfy a Stool debt and the finding that the Korle priest could only effect an outright sale with the prior consent of the Gbese Manche and the Ga Manche. The questions argued on appeal were:—

(1) whether Stool lands within the area in question could be alienated and in what circumstances;

(2) if they could be, whether it was a complete severance or whether there was a reversion in the Stool;
(3) who was the proper authority to alienate Stool lands, and what the position was of the Korle priest;
(4) whether there could be any relaxation of the native customary law or usage;

(5) whether on the facts of this case equity and good conscience required that the Court should hold that there should be, or in fact had been, a relaxation.

There was evidence that the Gbese Manche had certified some conveyances by the head of the Atukpai family, and it was sought to build an argument on that evidence. The Kotey family, also, claimed a right to alienate.

Held

(1) Native law is flexible; alienation of land has become firmly established as a rule of native law; the existence of a Stool debt was not a necessary condition to the sale of Stool land.

(2) If the proper authorities with the proper consenting parties make an outright grant without any reservations, they cannot say later that reservations of some kind were implied.

(3) The Korle We or House are co-owners with the Ga and Gbese Stools, and the prior consent of all three is needed for outright alienation, which also needs publicity, for they cannot alienate Stool land without obtaining the consent of subjects of the Gbese Stool in occupation or of strangers who have properly been granted some interest in the land.

(4) Where, as in this case, all the parties are natives, the existing native law shall, in view of section 87 (1) of the Courts Ordinance, be applicable, and the onus of showing that it should not be applied in the present cases has not been discharged; the custom requiring alienation by outright sale to be made jointly by the three controlling authorities fetters each of them and thereby safeguards the rights of generations unborn.

(5) The equities in these cases are more on the side of the subjects of the Stool than in favour of speculators who have ignored the nature of the title they sought to acquire, and this was not a case in which it would be right to implement the actions of persons who have purported to sell as a fee simple a usufruct in land amounting to customary’ occupation of Stool land.

(6) There had been no absolute grant to the Atukpais; they could not convey any land, and the fact that the Gbese Manche had certified conveyances made by the head of the Atukpai family gave them no authenticity as they were null and void.

(7) As regards the Odoi Quao family, a grant had properly been made to them more than a century before, and the Manches and the Korle priest having by their conduct acknowledged it to have been an outright grant, could not now be heard to say that there were reservations amounting to a reversion in the Stools.

(8) There was no reason to disturb the finding, based as it was on the evidence, that the Kotey family had only farming rights in the land in their occupation and could not transfer ownership.

Appeals by the Atukpai representative or a party claiming through them dismissed; Judgment varied in favour of the Odoi Quao family; appeals relating to the Kotey family dismissed.