Golightly v. Ashrifi [1961] GLR 28

Material Facts:

The plaintiff, the head of the Okaikor Churu family, was given the right to farm land at Kokomlemle by the Gbese stool, and they have been in possession of the land since 1875. However, in 1942, the Atukpai family, claiming ownership of the land, sold it to purchasers. The plaintiff then instituted an action against the Atukpai family for a declaration of title to the land, damages for trespass, and an injunction restraining the Atukpai family from laying claim to the land. The Korle family, represented by the Korle priest, later joined the suit as co-plaintiffs.

Procedural History:

At the trial court, it was held that the Atukpai family had no rights to the land, and it was the Korle family, together with the Ga and Gbese stool, that had title to the land. The trial judge also declared that the plaintiff (the Okaikor Churu family) was a possessory owner of the land "subject to the rights of the Ga, Gbese, and Korle stools, which are recognised by customary law as being the allodial owners of the land". On appeal by the defendants (the Atukpai family) to the West African Court of Appeal, the judgement of the trial court was upheld. The defendants again appealed to the Privy Council against the finding that the Korle family had any right or interest in the land, save as caretakers of it.

Issue:

What is the position of the Korle priest? (This was what the Atukpai family sought clarity on when they appealed to the Privy Council.)

Arguments of the Appellant (the Atukpai family)

1. That the trial court erred when it held that the Ga, Gbese, and Korle stools were the owners of the Kokomlemle lands. The Korle priest is a mere caretaker and takes care of the lands on behalf of the Ga, Gbese, and Korle stools.

Holding

The Korle priest, even though described as a caretaker, is not one who merely looks after the land for others without an interest in the land. Among others, he can make grants of unappropriated land to subjects of the stool.

Ratio Decidendi:

Their lordships stated that the question of the position of the Korle priest is a question of native customary law, which, per the decision in Angu v. Attah, has to be proved in the first instance by calling witnesses acquainted with it until the particular customs have, by frequent proof in the courts, become so notorious that the courts take judicial notice of them.

In the present case, both the trial court and the West African Court of Appeal, upon careful consideration of all the evidence, came to the following conclusions:

(1) that 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;

(2) that 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 native customary usage against the clandestine disposal of land without the knowledge of the necessary parties;

(3) that 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, 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 land.

Their lordships accepted the above positions.

Summary of Principles:

1. Meaning of "allodial": Per Lord Denning, "Their Lordships read the word "allodial" as meaning that the three stools are owners free of external control. They do not hold of anyone else."
2. Land that is unappropriated can be granted to others for specific purposes.
3. Land can be outright alienated, by which the allodial title of the seller is lost and the purchaser obtains that title. However, any such sale must be with the consent of all those who have ownership of the land, which in this case is the Ga, Gbese, and Korle stools.
4. However, even the allodial owners of land cannot sell the land without obtaining the consent and concurrence of the usufructuaries.