PAA JOY WHOEVER OWNS THE SOIL OWNS EVERYTING UP TO THE HEAVENS AND DOWN TO THE DEPTSH OF THE EARTH-cuius est solum, eius est que usque ad coelom et ad inferos Keelson v. Imperial tobacco co. of Great Britain and Ireland Ltd: the plaintiff brought an action against the defendant company seeking an injunction requiring the defendant to remove form the wall above his one-story shop, a large advertising sign which projected into the airspace above his shop of some eight inches. He claimed that the defendant by fixing the sign had trespassed on his airspace and unless restricted will continue to trespass. Held: the airspace above the shop was part of the premises demised to the plaintiff, since on a true construction of the lease agreement; there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop. The invasion of the airspace amounted to a trespass. Poutney v. Clayton [Sir Baliol Brett MR and Bowen LJ]: plaintiff brought an action to stop the defendant from mining on a parcel of land. Plaintiff bought land from a railway company which compulsorily acquired the land under the powers given by the Railway Clauses Consolidation Act. Defendants however had been mining on the land before it was sold to the plaintiff. Held: defendant cannot be stopped from mining on the land since the plaintiff bought the land subject to the activities of the defendant. Hence the ownership of the surface of the land was distinguished from the ownership of the soil below. Lord Bernstein of Leigh v. Skyviews and General Ltd : action for trespass. According to the plaintiff, the defendant took a single aerial photograph of his premises from a height of several hundred feet. Plaintiff objected to the photograph being taken and also without his permission. He contended further that the defend could not rely on the statutory defence under section 40(1) of the Civil Aviation Act 1949, since that section was limited to the bare right of passage over land and did not permit use of air space for the purpose of photography Holding: the court held , given judgment in favor of the defendant that 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. Star Energy Weald Basin And Another v. Bocardo : defendant drilled three wells under land owned by Bocardo SA in order to extract the oil that lies beneath it. Bocardo instituted action for trespass against the defendant. For the plaintiff, since it owned the land it therefore meant that it owed everything attached to it. The defendant contended that because the minimum depth of the well is above 800 feet, it cannot be reasonable to say that they are trespassing on the land and that their activity cannot negatively affect the plaintiff’s use and enjoyment of their property. Held: he who owns the land owns anything that is above or below the land..............this case can be of persuasive authority for article 257(6) of the constitution MODES OF ACQUIRING THE ALLODIAL TITLE-OLLENU J IN OHIMEN V. ADJEI AND ANOTHER There are 4 principal methods by which a stool can acquire land: 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 subject Gift to the stool Purchase by the stool JAMES TOWN STOOL V. SEMPE STOOL(1989-1990) : the James Town Mantse has dual capacity. As James Town Mantse he is the head chief of the 3 quarters namely Sempe, Akumajay and Alata and with regard to the Alata quarter he is their Mantse and all property to any of the 3 quarters is vested in him. each quarter can only claim ownership to an area which is in its exclusive possession. It will be wrong for any of the 3 stools to claim for itself the allodial ti title to all James Town lands. AKWEI AND OTHERS V.

AWULETEY AND OTHERS : sarkodee JSC held that the Osu Mantse as occupant of the Osu Stool is the proper person entitled to sue and be sued in respect of lands title to which is vested in Osu stool. AMEODA V. PORDIER[1967] : the court of appeal held that Ningo lands are not stool lands but are owned by various Ningo families. Nii Ago Sai v. Nii Kpobi Tetteh Tsuru II [2008] : the Supreme Court affirming of the decision of the trial High Court Judge held that Ogbojo lands are not La rural lands belonging to the La stool but to the Anahor and Dzrase families of Ogbojo. GOLIGHTLY V. ASHIRIFI : it must be clearly understood that the word caretaker does not mean simply one who looks after land for another but connotes one who has an interest in the land. The Korle Priest is not merely a caretaker of the land. He has an interest in the land and may make grants of lands to members of the stool for specific purposes, that is to farm or to build for purposes of residence or trade, but this right can only be exercised over land which is deemed to be unappropriated. PAA JOY Adjei v. Grumah : the court emphasized the principle of customary law that a subject of the stool acquires a determinable or usufructuary title in the stool land he occupies does not apply to virgin forest land on which he expended no labour. The principle is an equitable one rooted in actual possession. It creates an encumbrance or burden on the absolute tile 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 areas of virgin forest land not reduced to actual possession. THE USUFRUCT –it has indefinite duration and potentially perpetual. Awuah v. Adututu and Another(1987-88) – the Supreme Court described the usufructuary title as a specie of ownership co-existent and simultaneous with the stool’s absolute ownership . The usufructuary can alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the prior consent of the stool, this is because he is regarded as the owner of the area of land he has possession of. There is no limit to his right to alienate his usufructuary title as long as he recognizes the absolute tile of the stool. Neither can the stool divest the usufructuary of his title by alienating it to another without the consent and concurrence of the usufructuary Kotei v. Asere Stool [1961] per Denning: the usufruct right of a subject of the stool is not a mere right of farming with no right to alienate. Native law or custom in Ghana has progressed so far as to transform the usufruct right, once it has been reduced into possession into an estate or interest in 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 will perform the customary services. He can alienate it to a stranger so long as proper provisions are 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. Ollenu J (as he then was) in Yiboe v. Duedu[1957]: a declaration of ownership in favour of the individual against the stool or the family may amount to nothing more than a declaration that the individual is entitled to the usufructuary or the possessory right in the land and that declaration may not affect the absoulute title of the stool or family. ACQUISITION OF THE USUFRUCT-4 Ways; discovery, implied grant, express grant, transfer Discovery of vacant land by pioneers of a stool: as a general rule when the subjects of a stool discover unoccupied land, and subsequently settle thereon and reduce into occupation, the stool acquires the allodial title and the subjects acquire the usufruct.-Ngmati v.

Adetsia Implied grant from a stool: subjects of a stool have an inherent right to a usufruct in any unoccupied portion of stool land and the fact of the occupation and cultivation by a subject was all that was required to establish a usufruct. No formal grant is required. Bruce v. Quarnor (1959) : the plaintiff instituted an action seeking among others a declaration of title to a parcel of land in James Town Stool which was granted to Reverend Ernest Bruce, by Nii Kofi Akrashie the then occupant of the James Town Stool. The grant was made according to customary law. the 1st defendant had entered upon part of the land claiming the right to occupy that portion of the land by reason of a grant made and a deed executed to her by Nii Kofi Akrashie and she further argued that since the plaintiff had granted the land to his children he did not have any title left in the land and as such had no locus. The other defendants respectively claimed the right by a grant direct from the James Town Stool. HELD: any conveyance of land which is made in accordance of the customary law of that community becomes effective from the moment it was made and that a deed subsequently executed could only add to but could not derogate from the title and interest so conferred by the customary grant. That the plaintiff being a member of the royal family of James town; is a subject of the stool and by customary law he has a right to occupy any vacant portion of the land , which he can do upon actual or implied grant. That even if the plaintiff was occupying the said land without an actual grant, such occupation or possession is good title because he is a subject of the stool. And his title will take precedence over any grant which the stool may subsequently make on any portion of the land. Budu v. Ceasar(1959) : it was held that “by customary law, a subject of a stool is entitled either by express or implied grant from the stool, to occupy any vacant portion of the stool land; the occupant of such portion of the land becomes the owner of the possessory title in it; the land descends (upon his death intestate) to his family” –Per van Lare J Express grant from a stool: such grants were usual in the case of urban lands where some supervision of the allocation of plots was necessary for the purpose of orderly development and equitable allocation of communal lands. Armatei v. Hammond, Frimpong v. Poku , Oblee v. Armah. There was a claim for declaration of title by the plaintiff, a subject of the stool, against the defendants, subjects of the same stool. The plaintiff based his claim on a grant made to him by the stool. The defendants relied on grants made in their favour by the stool subsequent in time to the grant to the plaintiff and which grants were made without the consent of the plaintiff. The plaintiff won on his claim for a declaration of title against the defends . PAA JOY HELD PER OLLENNU J(as he then was) at 492-493: therefore whether the grant of the land to him was express or implied, the plaintiff , by occupying and farming the land , became the owner of it according to custom , and every grant which the stool purports to make of any portion of it to the defendant or ...to anyone else without the prior consent and concurrence of the plaintiff, who holds the usufructuary title in it, is null and void It must be mentioned that though the subject may now be required to seek an express grant from the stool, the subject’s access to land still remains an entitlement. Transfer this could be from a subject to a subject or from a subject to stranger –kotey v. Asere Stool(supra). HOLDER OF THE USUFRUCT HAS EXCLUSIVE POSSSSION AND USE OF THE LAND. THERE ARE NO RESTRICTIONS ON THE USE OF THE LAND-COULD BE FOR FARMING OR BUILDING PRUPOSES Oblee v. Armah: the evidence that the plaintiff has built on portion of the land and has been farming on the other portions is also evidence that the grant was for the purpose of occupation and building and not solely for farming. Even if the grant was only for farming the subject who so farms the land becomes the owner of the usufruct in the land. That interest in the land carries with it the right to build and occupy.

The stool is not entitled to dispose or deal with that land or any interest in such land in the subject’s possession without the consent and concurrence of the subject usufructuary owner. THE STOOL CANNOT MAKE A VALID GRANT OF LAND IN WHICH A SUBJECT HOLDS THE USUFRUCT WITHOUT THE CONSENT OF THE SUBJECT Pastor Yaw Boateng v. Kwadwo Manu & Anor (2008): the plaintiff sought for declaration of title to 50 pieces of building land. He claimed the lands were for the oman which had been given to him by the entire township of Basore. The defendant counterclaimed that all the said lands were family land. per Brobbey JSC : to my mind one of the most important serious questions raised in this case whether in this day and age of constitutional rule with all the talk of fundamental human rights to own property, the Oman could just get up and grab any land that belongs to a family because the town had to be developed, as was alleged by the appellant in his evidence at the trial court. My view is that the Oman could do that if the land was stool land which had not been reduced into the possession or ownership of any citizen or family within that Oman. In the instant case , the land seemed to belong to the family of the 1st respondent who had judgments in his favour at the customary arbitration and a previous circuit court litigation. The Oman could not just get up and allocate fifty building plots to an individual where the evidence suggested that the plots formed part of land which was not stool land. That could be done with the consent of the family because of the elementary principle of nemo dat quod non habet or that no one can give what he does not have. If land is to be given away, that could be done if it is established that the land is undoubtedly stool land or state owned. In the instant case , there was no evidence that the land belonged to the stool Awuah v. Adu tutu(1987-88): the stool cannot divest the usufructuary of his title by alienating it to another without the consent and concurrence of the usufructuary. Mansu v. Abboye and another(1982-83): A hallowed customary law was that the stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and unrectified breaches of customary tenure or upon abandonment. Total Oil Product v. Obeng per Ollenu(1962): and now to the lease which the Tafohene purported to grant to the plaintiff –company . that is a lease by a stool to a stranger of land in the possession of a subject of the stool or his grantee. Upon the well – established authorities, the lease is null and void and passed no interest in the land to the plaintiff-company. Baidoo v. Osei and Owusu per ollennu (1957): the plaintiff a stool subject sought a declaration of title to land and damages for trespass against the defendants. The land in question was a portion of stool land and the plaintiff claimed to have acquired usufructuary title by being the first to bring it under cultivation form virgin forest. The second defendant was also a stool subject and he granted the disputed land to the first defendant who was a stool –stranger without the consent of the plaintiff. The first defendant obtained a confirmatory lease from the stool . Held:The stool is not entitled to grant any interest in stool land over which a subject has acquired a usufructuary title 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. Ollenu in oblee v. armah (1958) -supra. ollennu J (as he then was ) at 492-493 said: Where a subject is in possession of the land, the stool is not entitled to dispose or deal with the land or any interest in such land without the consent and concurrence of the subject usufructuary owner. If this is done without the consent of the subject, the grant is null and void. BRUCE V. QUARNOR [1959]:

The court held that the plaintiff, as proved by the witness for the defendants is a member of the royal family of James Town, the stool family. he as a subject of the said stool, is entitled by customary law to occupy any vacant portion of the land of the said stool. This he can do either upon actual or implied grant. Thus even if the plaintiff’s possession and occupation of the land was not upon actual grant, his possession and occupation as a subject of the stool is good title , and it will take precedence over any grant which the stool may purport subsequently to make of any portion of that land. By customary law, a stool has no right to grant land which is in the occupation of a subject to any one subject or stranger-without the consent and concurrence of the person in possession. Golightly v. Ashirifi(1961): the 3 stools cannot however alienate stool land without obtaining the consent and concurrence of individuals or families who are lawfully in occupation of the land such as subjects of the Gbese stool who are in occupation or strangers who have been properly granted some interest be it a farming or occupation interest in the law. Saaka v. Dahali [1984-46]: the plaintiff/appellant sued for a declaration of title and recovery of possession to her late father’s house in Tamale, the Court of Appeal held that the chief of Tamaly rightly gave the land in question to the appellant’s father, Saaka Dagomaba, to be built upon for Saaka Dagomba being of the Dagomba tribe is entitled under Dagomba skin for building purpose. Thus once Saaka Dagomba has exercised this right and has built on it, he has a usufruct of that land which cannot without just cause be taken away from him by the skin. Robertson Nii Akramah II and Others (Consolidated) [1973]: the court relying on the statemet of law stated by ollennu in his book p. 56 , held that since the Asere stool made grants of portions of Mujose lands and that those grants were made without the prior consent of the plaintiff’s family, it must follow that such grants were invalid. Ollennu stated in his book thus : having regard to the very superior nature of the determinable title, customary law prohibits the absolute owner from alienating that land , or dealing with it in any way without the prior consent of the subject owner . Any grant which the stool (or the head of family) purports to make, either to a subject or to a stranger , cannot affect the title of the a subject in possession. The purchaser upon such alienation cannot obtain possession, and he and his grantors commit trespass if they enter upon the land for the purpose , or in pursuance of the alleged grant.” A SUBJECT NEED NO PERMISSION FROM A STOOL TO USE STOOL LAND FOR FARMING. Oblee v. Armah [1958]per Ollenu: there was a claim for declaration of title by the plaintiff a subject of the stool, against the defendants subjects of the same stool. The plaintiff based his claim on a grant made to him by the stool. The defendants relied on grants made in their favour by the stool subsequent in time to the grant to the plaintiff and which grants were made without the consent of the plaintiff. Held : a subject who requires land for farming need not obtain express permission of the stool to occupy vacant stool land ...but if to avoid a clash with other subjects already occupying land in the area, it should become necessary for the stool to make an express grant of stool land to a subject for farming , all that the elders would do is to take this subject to the land and show him the boundary from which and the direction in which he can farm....It is different in the case of lands adjoining the town which are ready for development for the extension of the town...in the case of such lands express permission of the stool is always required , and limits are set to the extent of lnad which one subject may occupy, in order ot maitnan proper adminsiteration of the land , and ensure that each subject who reqrueis land to build gets his fair share . it is in the cse of such gratns that the area granted to the subject is demarcated. BY CUSTOM SUBJECTS OF STOOL ARE NOT RATIONED IN THE AMOUNT OF LAND THEY CAN OCCUPY AND FARM-oblee v.

Armah and affipong Awuah v. adututu(1987-88) per Abban JSC delivering judment: a subject of the stool is not rationed in the amount of the forest land he may occupy THE HOLDER OF THE USUFRUCT CAN MAINTAN AN ACTION IN TRESPASS AGAISNAT THE STOOL AND CAN IMPEACH A GRANT MADE BY THE STOOL WITHOUT HIS CONSENT Awuah v. adututu(1987-88) per Abban : the courts have repeatedly held that a subject of the stool , or a stranger-grantee of the stool for that matter, can maintain an action against even the stool in defence of the usufructuary title and may impeach any disposition of such interest effected without his consent in favour of a third party. Such grant to a subject or stranger being one under customary law is effective from the moment it is made and a deed subsequently executed by the grantor may add to but cannot take away from the effect of the grant already made under customary law BRUCE V. QUARNOR [1959]: it was held that any conveyance of land which is made in accordance of the customary laws of that community becomes effective from the moment it was made and that a deed subsequently executed could only add to but could not derogate from that title and interest so conferred by the customary grant . Mansu v. Aboye[1982-83] : it was held that the stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and unrectified breaches of customary tenure , or upon abandonement. Ohimen v. Adjei(1957): it would be repugnant to natural justice and good conscience if, while the Stool can insist upon the services and customary rights due to it form the subject, it could arbitrarily deprive its subjects of the enjoyment of the portions of the stool land in their possession. 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. If he proves that, he is entitled to a declaration of this title to that land. Whether according to customary practice , an owner of land over which he has permitted a licensee to live and farm can exercise his undoubted right of ownership or use of portions of this land contemporaneously with the right of the licensee to live on and use those portions of such ancestral land which have not been specially allocated to or appropriate to actual use by the tenant or licensee or is the original grantor or his descendants’ right to possession or to occupy and use this land excluded entirely because of the subsistence of the license? Mensah v. Blow[1976]: the court held by concluding that it would be against custom to hold that the respondent, who is a licensee at custom could during the subsistence of the license or permission exclude the appellant who is lessor or members of his family from using portions of their own land. If she could, then it shows that as against her landlord, the appellant , she holds an estate grant which cannot be extinguished or forfeited for all purposes. But if she cannot, it can only be because her landlord or lessor enjoys a present right of possession or user over portions not occupied by her. This ...is the correct view of the position of the respondents according to customary law. WHETHER A SUBJECT HAS SATISFIED THE DEGREE OF OCCUPATION REQURIED TO CONFER THE USUFRUCTUARY TITLE IS A MATTER TO BE DETERMIEND ON A CASE BY CASE BASIS. THE PRESENCE OF ECONOMIC TREES ON THE LAND IS A PRIMA FACIE INDICATION THAT SOMEONE IS IN OCCUPATION Norquaye-Tetteh v. Malm(1959) per Ollenu J (as he then was): the defendant’s father bought a parcel of land from the property of the Akumadjaye Stool. A deed of conveyance was made by Nii Abose Okai, the caretaker of the Abose lands. the father bequeathed the said lands to his daughters by a deed of gift. Thirty years later a portion of the Abosse Okai lands were conveyed to the plaintiffs by deeds of conveyance perfected by the Mantse of Akumadjaye acting on behalf of the Akumadjaye Stool.

After the grant the brother one of the brothers went ahead to erect a barbed wired fence over the land they bought, on seeing this , the daughters claiming it was their father’s land and thereon erected a signboard on the land stating the owner of the land . the two brothers brought an action against the defendants. The plaintiff submitted that the only evidence the defendant led of their occupation of the land was evidence of the existence of three mango trees on the land, the fruits of which they alleged they had been harvesting. They went on to further submit that harvesting of the fruits of the mango trees on the land is not sufficient evidence to show that the land is in the possession of the defendants. Held: mango trees cannot survive on the Accra plains without someone tending to it , and even though trees generally sprout up in cultivated areas, it is the owners of the farm that look after and tend to it, therefore where mango trees or cashew trees grow on a land that is overgrown with weeds, it 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. Wuta ofei v. Danquah(1961) : the plaintiff acquired a land which he did not immediately occupy but put pillars on. The defendant built on it. Held per guest (P.C) : this was trespass. The presence of pillars was taken to evidence possession. Owusu v. manche of Labadi ALIENATION OF THE USUFRUCTUARY The subject can alienate so long as the obligation to recognize the allodial ownership of the stool is preserved. Awuah v. Adututu(1987-88) per Abban J: the usufructuary is regarded as the owner of the area of land reduced into his possession; he can alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the prior consent of the stool. There is practically no limitation over his right to alienate that usufructuary title. So long as he recognized the absolute title of the stool, that usufructuary title could only be determined on an express abandonment or failure of his heir Total oil product v. obeng and Another[1962]: the land in dispute was a portion of the Tafo stool lands under the Akim Abuakwa paramount stool. The land was granted to the plaintiff company by the defendant, an Ashanti man, and not a subject of the akim Abukwa Stool for lease of a term of years. The plaintiff had paid G250 pounds to the first defendant for the lease. They were subsequently ejected from the said land by the Tafo stool. The plaintiff submitted that the stool can alienate land in the possession and occupation of a subject without informing the subject in possession and occupation. Held per Ollenu J : the court held inter alia that the lease of land by a subject is not alienation of his usufructuary title or any interest in the land; it does not therefore require the prior consent of the stool. The judge relied on the decision in the case o f Thompson v. Mensah where the court of appeal stated the law as follows : ...the correct statement of the native custom is that a usufructuary title can be transferred without the consent of the real owner provided the transfer carries with it an obligation upon the transferee to recognize the title of the real owner and all the incidents of the subject’s right of occupation including the performance of customary services to the real owner.” CONSTITUTIONAL INTERVENTIONS Article 267(5) prohibits grants of freehold in stool land.-No interest in or rights of over any stool land in Ghana shall be created which vest in any person or body of persons a freehold interest howsoever described. It has been argued that this article should not be interpreted as an outright prohibition on the grant of ‘customary freehold’ in stool lands, and neither should the provision invalidate such freehold where already declared, or prohibit the registration of a land transaction described as a ‘customary freehold’, where the grantee or transferee is a subject of the land owning group.

The reasons being : the rational was to ensure that the stool’s PAA JOY allodial interest was not lost to it which is for the benefit of the future subjects of the stool and so it will be consistent if the subjects rights still prevail as it will continue unto their generations.; the right of the subject is not created by statute but it is an inherent right; finally article 267(5) should be read and interpreted in the light of Article 267(1) and subject to customary law and usage, which recognizes that the subject or member of a family is entitled as of right to a portion of vacant stool or family land and upon occupation the subject or member acquires the ‘customary freehold’ oblee v. Armah, Armatei v. Hammond. Yiboe v. Duedu[1957] per Ollenu : the plaintiff claimed for himself and on behalf of the Amandja Clan of Akloba a declaration of title to and recovery of possession of a piece or parcel of land. The defendant suing as sub-chief of the said Nkenya Akloba counterclaimed for a declaration that the said land is communal land for all tribes inhabiting the town, and that it is under his control and administration as the overlord or chief of the said town. HELD: Upon subsequent appeals , it was finally held that in cases of claims by a stool against a subject , or by a family against a member , the ownership of the subject or member – defendant in possession could be only a usufructuary interest while absolute title might be vested in the stool or the family. Therefore, a declaration of ownership in favour of the individual against the stool or the family may amount to nothing more than a declaration that the individual is entitled to the usufructuary or the possessory right in the land and that declaration may not affect the absolute title of the stool or family. for that reason it is only in rare cases that a stool can succeed against a subject in an action for trespass, and for that matter a family against a member thereof. In such a case all the plaintiff, a subject or member of the community m needed to prove to succeed in the action for trespass by the stool or head of the community was possession or occupation WHEN ALIENATION IS WITHOUT THE CONSENT OF THE STOOL, IT IS ONLY VOIDABLE, NOT VOID AND CAN BE SET ASIDE ONLY WHEN THE STOOL ACTS TIMEOUSLY. Buour v. Bekoe(1957): the plaintiff sought to redeem a plot of stool land from the third defendant. He claimed that the plot was one which his predecessor had held of the stool for a determinable estate and had pledged to the first defendant. The first defendant asserted that although he had been involved in the transaction, the pledge has in fact been taken by the second defendant. The third defendant claimed to have purchased the land from the second defendant and asserted that the original transaction between the plaintiff’s predecessor and the second defendant had therefore been fully entitled to re-sell the land to him. the native court found for the plaintiff. on appeal , it was argued for the plaintiff inter alia , that even if the original transaction had been a sale ( and this was denied) it was void ab initio because , as stool land was involved and the purchaser was a stranger to the stool, the necessary consent of the stool to the alienation had not been obtained. Held: if the original transaction had in fact been an outright sale then, since it would have caused the alienation to a stool-stranger of a determinable estate in stool land , the consent of the stool would have been necessary to validate the transaction. The absence of consent in such circumstances renders a sale voidable at the suit of the stool: it does not make a sale void ab initio . in this respect the consequences of such a sale are the same as where the head of a family or other family member alienate family land without obtaining the necessary family consents. Mansu v. Abboye (1982-83) : the plaintiff-appellant , hereafter called the plaintiff, sought a declaration of title to his family’s land. He pleaded that his ancestors had reduced the virgin forest into cultivation and had been in uninterrupted occupation of it until the trespass complained of.

The defence failed to challenge the plaintiff’s boundary neighbours who testified in his support and who claimed to be still in possession of their farms. The co-defendant’s case was however that as the Odikro of Yarbiw he was the allodial owner of Yarbiw lands. he had also fought for the release of the lands from the State Farms Corporation which had previously acquired them compulsorily. The lands had reverted to him with the blessing of the town committee and therefore he had every authority to grant a license to the defendant to trap and uproot palm trees, perhaps in the better interest of husbandry and for the good of the entire community. He, however, made no claim against the plaintiff for breaches of customary tenure which would justify forfeiture, nor was he attempting re-possession following abandonement. Indeed , his was the novel proposition that a stool could retreat a subject’s land and extinguish his possessory title , if land compulsorily acquired were later released, or if the town committee decreed it. the court of Appeal held that since plaintiff had paid his contribution to the fund set up to reimburse the Odikro, as custom demanded and had not failed n his obligations, here was no basis to warrant any forfeiture of his lands. the judgment denying him his claim was a travesty . by one eclectic stroke the circuit judge was rejecting a hallowed cannon of customary law , that the stool subjects in possession can only be dispossessed of their usufruct in land with their consent or on proven and unrectified breaches of customary tenure, or upon abandonement. FOR THESE CASES SUCH TRANSACTION WILL BE VOID AB INITIO Gyeabour II v. Ababio [1991] : an alienation of Kaase stool lands without the consent of the Kaase Chief was void ab initio, and follows that any document signed thereof will be ineffective-per Francois JSC , Amuah Sekyi and Adumuah JJA Nortey v. Duncan per Ollenu [1958] : a person can only act in an office where there is no substantive holder of the office. The one indispensable person in dealing with stool or family land is the occupant of the stool or the head of the family for the time being . any document executed without him by the principal elders of the stool or the family, no matter who their members is null and void. PAA JOY STATUS OF A DOCUMENT PREPARED AFTER A GRANT Awuah v. adututu : documents which are prepared after a grant according to custom , like the present , serve merely as documentary evidence of the grant and they do not alter the customary nature of the transaction.

Interest which exist in commonlaw, is a legal interest.

In the development of the commonlaw in England, there were a number of occurrences. As it was developed , because of its insistence on formality, there were a number of situations of injustice. The position was that the creation of a legal interest in land , must be by deed(in writing) . because of the nature of interest in land , the view was taken that in order to eliminate fraud it was important that interest in land are created in writing .

So where there was an oral contract for instance relating to the sale of land , or even where payment had been made, the court will afford no remedy since the statute of law stipulated that the creation of an interest in land was to be in writing.

As people felt that justice was not being done, they began to appeal to the king and the chancellor and eventually the court of Chancery. The equity Court shared the view that the statute of law instead of minimizing fraud was rather perpetuating fraud. Hence, the equity , court said if what had happened could not create the legal interest they will grant an equitable interest

This established an equitable interest in land as against a legal interest in land. It was developed such that the rights was not just enforceable against the parties, but enforceable against everyone , thereby becoming a proprietary interest in land.

Another reason apart from the formality approach is that the common law insisted on technicalities. Eg. Was that which related to trusts. Whereby the beneficiary could not obtain any remedy in the commonlaw courts when for instance the trustee does not use the trust or the benefit of the beneficiary.