Ibrahim Azabu Janga (suing As Head Of Family Per His Lawful Attorney ) Vrs - Scancom Limited [2022] GHACA 30 (2 June 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL TAMALE – GHANA A. D. 2022 CORAM: V. D. OFOE, JA (PRESIDING) J. BARTELS-KODWO (MRS.), JA S. R. BERNASKO ESSAH (MRS.), JA SUIT NO.: HI/3/2022 DATE: 24TH JUNE 2022 IBRAHIM AZABU JANGA - PLAINTIFF/APPELLANT SUING AS HEAD OF THE KURINHINYI DANA AZABU FAMILY PER HIS LAWFUL ATTORNEY VRS 1. SCANCOM LIMITED 2. ATC TOWERS GHANA LTD - DEFENDANTS/ 3. THE SOO NAA OF THE RESPONDENTS SOO TRADITIONAL AREA JUDGMENT V. D. OFOE The Plaintiff/Appellant herein after referred to as the plaintiff sued the Defendant/Respondents, Defendants for short, for: “i A declaration of title to all that piece or parcel of land located at Janga in the West Mamprusi District of the Republic of Ghana near Kanbonaba’s house at Fongni-Janga and bounded as follows: On one side with Naabunpoosa family land, On the second side with Jandan Andani’s family land, On the third side with Liman’s family land and on the last side Afa Mahi’s family land. ii. A declaration that 3rd Defendant is not the rightful owner of the land on which the 1st Defendant had constructed its booster pole which it later on handed over to the 2nd Defendant for management and operation. iii. A declaration that Defendants trespassed onto Plaintiff’s family land when Defendants constructed a booster pole on the aforesaid land without the consent and permission of Plaintiff’s family. iv. An order directed at Defendants to remove the said booster pole and in the alternative Plaintiff be at liberty to demolish and remove the said booster pole and the cost of such removal be surcharged on the Defendants. v. An order directed at Defendants to compensate Plaintiff for the period that Defendants has trespassed onto Plaintiff’s family land. vi. Damages for trespass. vii. Cost”. Tersely put his story supporting these claims is basically that in the Janga Traditional Area of the West Mamprusi District land is owned by families and not chiefs for which reason any transaction involving land in the Janga Traditional Area must be done with the ultimate consent of the head of family of the particular family land. He is the head of the Kurinyina Dana Azabu family which is the freehold or usufructuary owner of land in Fongni-Janga in the West Mamprusi he described in paragraph 6 of the statement of claim as follows: “ On the one side with Naabunpoosa family land, on the second side with Jandan Andani’s family land, On the third side with Liman’s family land and on the last side Afa Mahi’s family land” His family members have seJled on part of this disputed land exercising acts of ownership over this land for more than 400years. Having been recognized as the owner of the said land when the West Mamprusi District Assembly wanted to build a market on part of this land his family was consulted and it consented. Another evidence of their ownership of the land is a collapsed building put up by one of its family members near the market and the 2nd defendant’s booster pole. What has agitated this suit is a booster pole erected by the 1st defendant on part of this family land near the market without his consent. They got to know that it was the 1st defendant with the permission of the 3rd defendant who has no such right to have given the land out to the 1st defendant who had commiJed that trespass. They got to know of the 1st defendant on the land in 2006 and the 2nd defendant taking over from the 1st defendant in 2011. The 3rd defendant denied the plaintiff’s claim to allodial ownership of the disputed land or any land in Mamprusi. It is his case that allodial title lies in the skin by Mamprusi custom and nobody else. Not only that but it is also the 3rd defendant who has the right to grant land in the area where the booster pole is situate. The plaintiff has no title to the land in dispute. The plaintiff in his reply to the defence clarified his position claiming freehold interest under the allodial title which he admits is vested in the skin. Being the owner of such freehold interest any rents payable should be to his family. What would be expected from the plaintiff is evidence that will lead to a determination in its favour that he and his family have freehold interest and the only capable grantors of any land belonging to his family. What evidence did he put before the trial judge? The essentials of his evidence is that the overlord of the lands is the Nayiri who has sub chiefs under him but other entities have lands of their own under the Nayiri. As regards the land in dispute the great grandfather was the first to seJle on it and the family has been in possession and occupation since. They have been farming on it and have seJlements as evidence of their possession. When the market in the area where the 1st defendant erected his pole was to be built his family and that of the 3rd defendant agreed for its siting on that area of the land. Similarly when a teachers quarters was to be built his family was consulted. He testified that according to the custom when you are farming on a piece of land and someone wants to take that land to put up a building it is you the owner of the farm who is consulted and not the chief. If the land is vacant or virgin land the person to be consulted is the sub-chief on behalf of the Nayiri unlike land that had been cultivated. Since it is his family that is cultivating the land where the 1st defendant has erected his booster pole it is his family whose consent has to be sought and not the 3rd defendant who has no right to grant the land to the 1st defendant. Plaintiff admiJed however that documentary grants of the lands are by the 3rd defendant but the owner of the land must agree. He concluded his evidence on the note that the family sued because they were not consulted when the grant was made to the 1st defendant. Plaintiff’s witness Salifu Ziblim confirmed the plaintiff’s evidence that farm lands do not belong to the Soo Naa but that if the maJer concerns development project it is the Soo Naa who has the power to deal with the maJer but he must seek the consent of the land owner. Asked about the hospital cited on his own family land witness answered that the people consulted the Soo Naa who got his family’s permission for the construction. Witness testified that they were compensated because they were farming on the land. Fuseini Zakariah a witness of the plaintiff, when asked who was consulted when the market was to be built he said it was the Soo Naa. In respect to the booster pole the witness said it was necessary for the family to be consulted. Asked about Dr Mensah’s Mill Project, the Nasia Rice, the Government Rice Project witness admiJed it was the Soo Naa who granted the land for these projects. A direct question to him that in entire Mamprusi it is only the Nayiri and subchiefs who grant lands and not the family he answered in the affirmative. Also asked whether he is aware that in Mamprusi the Nayiri is the person with the greatest control in terms of land he answered again in the affirmative. In respect of family lands he maintained however that even though Soo Naa is in charge of all lands he does not own the family lands and has to consult the family for any grant of land belonging to the family. He like the plaintiff testified that it is the plaintiff’s family members who farm on the land and that a member even had a building which currently is in ruins on the land. Mahama Musah, the last witness of the plaintiff was to confirm the evidence that their family has been cultivating the land before the 1st defendant entered with the booster pole. They are objecting to the grant of the land to the 1st defendant because they were not consulted by the chief when he gave out the land to the 1st defendant. He maintained that the Soo Naa cannot grant land to anybody unless the family consents and the chief has not sole ownership of the land. When he was referred to the GN Bank who had also acquired land in the area witness admiJed that it was the Soo Naa who gave the formal lease to the Bank after the owners were compensated. Bugri Nantogmah testified for the 3rd defendant. He is the Tempe Naa. In his evidence in chief, he denied the plaintiff has any right to allocate land where the pole is located and that he as the sub-chief has never recognized the plaintiff as land owner within his area and that the plaintiff has no right to allocate land within his area. Some of his answers in cross examination were that those who are farming inherited their farms from their ancestors. It is part of his functions that when anybody needs land he informs the Soo Naa who allocates. Even though testifying for the defendant he testified supporting the plaintiff’s case that all the lands within his jurisdiction was owned and occupied by individual families. In respect of the Kpakyoo he testified that it is land that had been cultivated by someone in the outskirts of the town. If a farmer stops farming on a Kpakyoo any other person can farm it. As if testifying for the plaintiff this other witness of the defendant, Alhassan Inusah, was firm in his evidence that as head of his family he is in control of his family lands and has allocated some with the consent of the Nayiri who he informed in advance before he did the allocations. The alloJees met him first before the Nayiri. These were the relevant pieces of evidence that came out at the end trial on the basis of which the trial judge concluded that the plaintiff and witnesses corroborated the fact that in Mamprusi though individual families own land it is the chiefs who alienate land for developmental purposes and not the individual families who exercise usufructuary rights over these lands. He alluded to the fact that even though the 3rd defendant did not testify he was able to make his case through his witnesses corroborated by the plaintiff’s own witnesses. After making these findings he went into research findings of two indigenes of Mamprusi on Ownership and Access to Land In Urban Mamprusi, Northern Ghana. Before then he referred to an article entitled Land and Tree Tenure and Rural Development in Northern Ghana 1993-95) 19 UJ IO2 by Professor E. N. A Kotey. What did Professor Kotey say? That allodial title which is the highest title in customary land holding is vested in the various skins but practical management is in the various sub chiefs. In respect of the researchers they found that all land in Mamprusi belong to the Nayiri who holds it in trust for the people under his jurisdiction. He delegates the management of these lands with lesser chiefs like divisional chiefs, village chiefs under him. This is referred to by the researchers as macro land holdings and management. At micro level lands that have been reduced by cultivation and seJled on belong to the clan or family. It arises from the first seJler or the person first to cultivate it owns it and may eventually be family property. There is land holding referred to as the Kpakyoo. This is virgin land that has been reduced into farming by any person. Virgin lands belong to the Nayiri and he maintains the macro level ownership and reserves the right to freeze micro level ownership. Land ownership in the Mamprusi can be classified into two: where the Nayiri owns all the lands and where families and clans own part of the land. That of the families and clans is subject to the oversight of the Nayiri and can be withdrawn by the Nayiri depending upon circumstances. In respect to farm lands for agricultural purposes it can be acquired either by clearing agricultural lands or access to a Kpakyoo. Where the land is virgin land it is acquired through the chief. In respect to a Kpakyoo the owner’s permission will have to be sought for its usage. Such ownership is vested in the individual or the family or clan. Its use does not need the consent of the chief. As regards lands for seJlement where it is a new seJlement if it is a virgin land permission is sought from the chief. If it is land that has ever been cultivated permission is sought from the individual owner or the family before the chief’s approval. With lands within already developed seJlements the chief grants if the land has never been cultivated. But if the land is a former seJlement or farm the chief will need the consent of the family before granting or giving permission for its use. In respect to lands for residential purposes the chiefs would usually overrule and grant permission for development even if the family objects. These are findings of the two researchers To the trial judge if the Nayiri has overriding authority in granting permission for use of land for development purposes and there is an instance where the Nayiri overruled the resistance of the Terena family granting their land for the construction of the Regional Hospital why is the plaintiff claiming the Nayiri has no authority to grant the disputed land for development purpose like the erection of a mast? He found that the land is not agricultural land because it is in a market place. He concluded and this can be found at page 30 of the record of appeal, that “ Since the land was released for developmental purposes the 3rd defendant had the right to assign even if objected to by the plaintiff’s family. The 3rd defendant has led sufficient evidence that he has the right to grant the leases and the onus would shift to the plaintiff to lead contrary evidence” He continued at page 307 assessing part of the plaintiff’s evidence: “……… Since there is evidence to the effect that it is only the Soo Naa who could grant land for developmental purposes, the onus is on the plaintiff to prove that individual families in Janga could grant lands for such purposes and that would call into question the validity of the lease granted to the 2nd defendant. The plaintiff could not call any family in Janga which had made such allocations and he could not tender any such lease agreement. He only made bare claims that in respect of GN Bank land and hospital land it was the family that gave same out without proving same by calling those family members or tendering any such lease agreement. One point the plaintiff is missing is that when by dint of hard work a family has made some investment (farming) on the land and there has been the need for that land to be used for a developmental project then the family has to receive some compensation for the investment it has made on the land. This should not be confused with the right of the chief to make allocations for developmental purposes which includes residential/ industrial plots. If it is bare land the chief has the right to make the allocation without resort to the family. However, a chief cannot use his authority and take over a purely farming land of another family because of his capacity as the chief. It is only when the land comes within/near Janga that he could make such grants for developmental purposes. At the Macro level the land belongs to the Nayiri and his chiefs and the micro level the same people exercise these rights when the land falls within a sehlement. The concept of family land as known amongst the parts of the Volta Region is unknown to Mamprugu Customary Law. In my view the plaintiff failed woefully that families or clans in Mamprugu could grant leases as if there are landowners in the true sense of the word. On the whole I hold that the 3rd defendant is the rightful person to grant leases in Janga for developmental uses ….” In respect to plaintiff’s claim to the customary freehold ownership of all that piece or parcel of land located at Janga in the West Mamprusi District in the Northern Region of the Republic Ghana with the boundaries he indicated in his writ, the trial judge dismissed the claim because the plaintiff failed to establish his boundary owners. The plaintiff is aggrieved at this judgment and has 4 grounds of dissention which he is appealing should form the basis for our reconsideration of the trial court’s decision. These are: a. That the judgment is against the weight of evidence b. The judge erred in law when he held that the plaintiff failed to prove the identity of the disputed land or all the boundaries of the disputed land when the description given to the land by the plaintiff in his pleadings and witness statement was not disputed by the defendants c. The judge erred in law when he relied on a mere article wrtihen by scholars to hold that an allodial holder can dispose of the usufruct interest of the subject without the consent of the subject which was against the decided authorities of the Supreme Court of Ghana” d. The judge erred in law when he found that the evidence of the 3rd defendant had been corroborated by the evidence of plaintiff’s witnesses. We have read the record of appeal in its entirety as demanded by case law authorities like Oppong Kofi vrs Ahibrukusu (2011) SCGLR 176, Akufo Addo vrs Catheline (1992) 1GLR 377, Djin vrs Musah Baako(2007-2008)SCGLR 686 and we have no doubt what our duty is in this appeal. In Oppong Kofi vrs Ahibrukusu the Supreme Court stated the duty clearly when it provided as follows: “It would be expected that the Court of Appeal in allowing the appeal by the plaintiff from the judgment of the High Court in favour of the defendants, would have dealt adequately with the sole ground of appeal by the plaintiff, namely, that “the judgment is against the weight of evidence”. Essentially, the effect of that ground of appeal, was to invite the Court of Appeal to review the whole of the evidence, documentary and oral, adduced in support of the judgment of the trial court or otherwise. Where findings were based on established facts, the appellate court was in the same position as the trial court and it could draw its own inferences from the established facts. Consequently, in considering the appeal by the defendant, the main focus of the Supreme Court, would be to look closely at the totality of the evidence adduced at the trial and seek to do what, the view of the court, both the trial High Court and the court of Appeal did not do adequately, i.e., to draw necessary inferences from the facts that had been clearly established by the evidence, both oral and documentary. It was only when that had been done that the expectations of justice would be fully met”. Also significant in the hearing of appeals is the accepted principle that findings of fact made by the trial judge should not be interfered with unless such findings are inconsistent with or does not support the evidence on record. For this principle we refer to the cases of Koglex Ltd (No2) vrs Field (2000) SCGLR 175, Gregory vrs Tandoh & Hanson (2010) SCGLR 971. In Djin vrs Brako (2007-2008) 1 SCGLR 686 the court explained that unless the findings were shown to be wrong or the trial court did not take all the circumstances and the evidence into account or had misapprehended some evidence or had drawn wrong inference without any evidence in support or had not taken proper advantage of his having seen or heard the witnesses, an appellate court had no business interfering with the findings of fact made by the trial court. On the first ground of appeal which is that the judgment is against the weight of evidence he argues that the trial judge erred in his findings that the plaintiff failed to establish the boundaries of the land for which he is seeking for a declaration because the defendants did not deny the boundaries he pleaded both in their pleadings and in the evidence in chief. This is tenor of the submission of counsel “My Lords it is significant to state that the identity of the disputed land was never in issue. The main issue was whether or not the disputed land is appellant’s family land (freehold) or it is Janga skin land. There was therefore no dispute to the description of the boundaries of the land and all the respondents only disputed Appellant’s claim of ownership and not his description of the land. We therefore humbly submit that the Appellant therefore needed not prove further the identity of his land” On reading the records we found this submission of counsel for the plaintiff inaccurate. The pleadings disclosed clearly a denial of the boundaries he claimed by all the defendants. Plaintiff has his pleadings on this boundary issue in paragraph 6 of his statement of claim. The 1st defendant denies this claim in paragraph 2 of its defence, 2nd defendant denies this in its paragraph 6 of the defence, and the 3rd defendant denies it in its paragraph 5 of the defence. With such denial the case authorities demand that the plaintiff leads evidence to establish all his boundaries. This exactly was the view of the trial judge. The plaintiff on the evidence, as rightly mentioned by the trial judge, called evidence of two of the boundary owners and not the other two. That definitely is a failure on the part of the plaintiff to establish the land area he sought from the court a declaration of title on application of authorities like Anane vrs Donkor (1965) GLR 188, TeHeh vrs Hayford (2012) SCGLR 417, Agyei Osae & Ors. vrs Adjeifio & Ors. (2007-2008) SCGLR 499 and Nortey (No. 2) vrs African Institute of Journalism and Communication (2013-2014) 1 SCGLR 703. Whilst it is true on the evidence that the primary issue that was fought during the trial was family ownership of Janga lands it is incorrect to say, as counsel contended, that there was no issue joined on the land size claimed by the plaintiff on the pleadings. The plaintiff sought a declaration of title over a specific area of land and the court should be enabled by the evidence led to consider that claim and make a determination thereon, as the authorities have explained, to enable a court order, like an injunction and its aJendant contempt proceedings to be properly determined and the judgment itself serve the purpose of the principle like res judicata. It is always necessary, in our opinion, for parties and their counsel to bear in mind that it is the duty of the court to give judgment not only according to law but also clear and enforceable judgments. And for that reason the argument should not simply be whether the parties have admiJed the boundaries claimed by a plaintiff but whether indeed such admission will enable the court make appropriate orders in respect of the land claimed. For instance where in a declaration of title to 2 acres of land the plaintiff pleads only two boundary owners, and this is admiJed by the defendant, should the court be bound by such admission as to grant the plaintiff the 2 acres? Definitely the court will not have assisted the trial and the judicial process if he grants the 2 acres knowing that such a claim needs boundary owners more than two. A refusal of the claim to the 2 acres is obvious despite the admission by the parties. We are in agreement with the trial judge refusing to grant the plaintiff’s relief because he failed to establish his boundary owners which will enable the court grant the declaration for the land area he sought for in his writ of summons Next argued by counsel is the submission on the ace question of the plaintiff’s family’s claim to freehold ownership of the land in dispute. Relying on the evidence of the parties and admissions made by the 3rd defendant’s own witnesses counsel found it unacceptable the trial judge’s finding that there was rather evidence on the contrary corroborating the 3rd defendant’s case to ownership of the land in dispute. To counsel the evidence was clear and supported by the 3rd defendant’s and his witnesses that family owns land in Mamprusi and therefore Janga. The plaintiff’s family therefore owns the land in dispute on which the 1st and 2nd defendants have mounted their booster poles. We are in agreement with counsel that there was evidence in preponderance in favour of the case of the plaintiff that families also own lands in Janga. They may be the usufructuary owners of these family lands. But this was accepted by the trial judge in his judgment, also accepted was the practice of the Kyakyoo. We therefore do not see why the complaint of the plaintiff. What the trial judge found further was that despite this family ownership system when it comes to land for development purposes, whether it is family land or skin land it is the chiefs, in our case the Nayiri, who alienates. The record of appeal provides support for this view of the trial judge when we consider evidence in relation to establishment of the market by the District Assembly, Dr Mensah’s Mill Project, Nasia Rice, Government Rice Project and the construction of the regional hospital, all of which were granted by the Nayiri. There is sufficient evidence before the court that all these were granted by the Nayiri and not the families on whose lands these development projects were executed. These are appropriate findings of fact which has roots in the evidence an appellate court based on principle is disabled from interfering with. The families where appropriate were compensated. We dismiss ground of appeal alleging the evidence is against the weight of evidence as without merit Reading the judgment from pages 294 to 306 it is clear that the trial judge did not use the research findings as basis for his findings. Rather he alluded to the research as supportive of evidence led in the court in coming to his findings. The grievance of the plaintiff in his 3rd grounds of appeal complaining about the use of the research findings has no merit and is dismissed. Counsel for the plaintiff has drawn our aJention to some Supreme Court authorities where the nature of an usufructuary interest and his unlimited competence to alienate land without reference to the allodial owner has been explained and emphasized. Some of these cases mentioned are Thompson vrs Mensah (1957) 3 WALR 3240, Nunekpeku vrs Ametepe (1961) GLR 301, Kotei vrs Asere Stool (1961) 1 GLR 492, Awuah vrs Adututu & Another (1987-88) 2 GLR 191. Whilst we take note of these authorities the question to ask is whether these authorities were not speaking in general terms? We ask because customary law is reputed to vary within the various units of the ethnic group and tribes. In any case these authorities that recognize the usufructruary interest owner’s right to alienate lands limits this right to the paramount interest of the allodial overlord. That is why cases like Thompson vrs Mensah (1957) WALR 240 and others emphasize that the usufructs dealing with the land should not prejudice the right of the absolute alodial owner. His over lordship should be recognized and that includes its right to exact customary performances. How can one argue that the overlord’s right over the usufruct should not include the overlord making grants of even lands owned by the usufruct where development of the community is concerned? In the instant case the evidence established the Nayiri had made several grants for such development initiatives and this has been accepted within the traditional area. It has been accepted because he is seen as the overlord with rights to override the usufructary interest. One of such developments is the erection of a booster pole by the 2nd and 3rd defendant. We have stated that we are in agreement with the trial judge in recognizing the Nayiri’s right in the grant of the land to the 2nd and 3rd defendants. Evidence of respect for the consent of each other- the family and the Nayiri and his subchiefs- in transactions relating to land has been pervasive on the record. It should therefore be expected that each will give maximum respect to the practice for sound land administration in the traditional area. It is in very extreme cases that the family withholding its consent, particularly regarding development projects, should result in the invocation of the powers of the overlord on behalf of the people to subdue such refusal. Proceeding from the above reasoning we conclude dismissing the appeal in its entirety. (SGD.) V. D. OFOE [JUSTICE OF APPEAL] J. BARTELS-KODWO (MRS.), (JA), I agree (SGD.) J. BARTELS-KODWO (MRS.) [JUSTICE OF APPEAL] S. R. BERNASKO ESSAH (MRS.), I also agree (SGD.) S. R. BERNASKO ESSAH (MRS.) [JUSTICE OF APPEAL] COUNSEL: SYLVESTER ISANG FOR APPELLANT SHEIKH-ARIF ABDULLAH FOR 2ND RESPONDENT