Article 295(1) of the Constitution of 1992 defines a stool as follows: “Stool” includes a skin and the person or body having control over skin land”.
A stool may connote a customary community similar to a body corporate headed by a chief, who holds some traditional political authority. It may also connote the symbol of office of a chief or other customary office holder. It normally consist of a small black carved wooden stool. A stool as a customary law corporation, having a separate legal personality distinct from the individuals who belong to the said corporation. The said individuals are called subjects. In some parts of the country the equivalent of the stool is a skin.
Management of Stool Property
Section 31 of the Administrative of Lands Act, 1962 (ACT 123) defines stool land. The reference to lands in the Northern and Upper Regions was superseded by the 1979 Constitution which divested the said lands of state control.
Article 257 (2), (3) & (4) of the 1992 Constitution revested the lands in the Northern, Upper East and Upper West Regions in the appropriate traditional owners.
Article 295(1) of the 1992 Constitution also defines stool land to include “…land or interest in, or rights over, any land controlled by a stool or skin or the captain of a company, for the benefit of the subjects of that Stool or the members of that community or company”.
Section 1 of the Administration of Lands Act (Act 123 of 1962) provides that “The management of Stool lands shall be vested in the Minister”. Article 267(1) of the Constitution of 1992 vests all stool lands in Ghana in the appropriate stools on behalf of and in trust for the subjects of the stool in accordance with customary law and usage. A question that linger is whether stool lands includes family lands.
From Article 267(1) of the Constitution of 1992, stool lands are vested in stools as trustees for the subjects and in accordance with custom and usage. Under the custom and usage the stools’ allodial titles were the highest interest in land with its incidents. However, as already noted, this is subject to various restrictions and limitations.
Also, under the State Lands Act (Act 125 of 1962) as amended stool land could be vested in the President in trust for the people. The courts have held that “vested in the President” does not take away the powers of the stool to manage and control stool lands or even to litigate in respect of same.
NANA HYEAMAN II v OSEI
The plaintiff brought an action for the setting aside of a timber lease of a parcel of land attached to his stool. Defendants raised a preliminary objection to the capacity of the plaintiff on grounds that by virtue of the Concessions Act only the president could institute proceedings on behalf of the stools concerned. S16 of Act 124 vested lands to be constituted as foreign reserves in the president & also vested all rights with respect to timber. HELD: The vesting of stool lands that are subject to concessions in the president does not remove the stool’s inherent rights to own property. The statutory powers of the President ought to be construed as running side by side with the powers of the stools as the allodial owners of stool lands.
Litigation in Relation to Stool Land.
Litigation in respect of stool property is enunciated in Order 4 Rule 9 of CI 47. In other words the customary law position is that the Chief is the proper person to sue or to be sued in respect of stool land.
GYAMFI v OWUSU
FACTS: The appellants who were chiefs of Kumawu Traditional Area colluded & fraudulently claimed for themselves compensation paid by the government in respect of an acquisition of Digya-Kogyae lands which was stool land for a game reserve. The respondents who were Kumawu stool subjects successfully sued for the recovery of the compensation. On appeal, counsel for appellants contended that since the lands in question were stool lands, the respondents had no locus to bring an action since it was a settled customary law principle that the stool occupant was the right person to bring an action in respect of stool property. They also contended that according to the Administration of Lands Act, the Minister responsible for lands was the right person to receive the revenue & bring an action in respect of stool lands & therefore the respondents had no locus. HOLDIN: They had no capacity under customary law to sue in respect of stool property; only the occupant of the stool could sue in respect of stool property. Also since all the lands were stool lands, the provisions of the Administration of Lands Act, 1962 (Act 123), were applicable. Under section 17 of the Act, the minister was the proper person to collect stool revenue and therefore the proper person to maintain the action for the recovery of the compensation moneys paid to the claimants.
In the absence of the Chief another person may be appointed to represent the stool if by customary law that person is competent to represent the stool. OFUMAN STOOL v NCHIRAA, BUKURUWA STOOL v KUMAWU STOOL
Private citizens have no standing to commence or defend proceedings in respect of stool lands. Indeed in Gyamfi v. Owusu, the Court of Appeal rejected an invitation by counsel to extend the exemptions in Kwan v. Nyieni, (relating to family property) to stool property.
NB: S. 2 of the Administration of Lands Act empowers the President to direct the institution or defence of, or intervention in any proceedings relating to any stool land in the name of the Republic, on behalf of and to the exclusion of any stool concerned, and may compromise or settle any such proceedings. Vesting in the President under Act 125 has not affected the powers of stools to litigate in respect of stool lands.
FRIMPONG V. NANA ASARE OBENG II
FACTS: The defendant was a concessionaire operating partly on the plaintiff’s stool land. In the course of operations the defendant illegally felled trees in an area falling outside his concession. The plaintiff reported to the Lands & Forestry department & also sued for damages for trespass to his stool land. Trial judge held for the plaintiff & the defendant appealed, contending that by virtue of S2 of Act 123, the plaintiff did not have the locus to sue by virtue of S2.
HOLDING: On construction, S2 of Act 123, did not take away the inherent right of an occupant of a stool to sue in respect of his stool land because the wording of the section contemplated that the proceedings in respect of which the President might intervene must have been pending and commenced by someone on behalf of the stool. In law, the proper person in that regard was the occupant of the stool.
BEKOE V. SEREBOUR
FACTS: The plaintiff chief claimed that the land occupied by the defendants was stool land, thus sued for a declaration that the stool was entitled to half of the proceeds from palm trees felled on that land & also that the defendants should render accounts to him. Defendants contended that under s17 Act 123 the plaintiff was not the proper person to sue.
HOLDING: The land was stool land and therefore the person who had the capacity to institute an action to recover any revenue in connection with it was the Minister. Accordingly the plaintiff had no locus standi and his action was misconceived.
REASON: Where the land in issue was stool land, under section 17 (1) and (2) of Act 123, all the revenue and the absolute title to the profits of the land were vested in the Minister and should therefore be collected by him.
ALIENATION OF STOOL LAND
There is one overriding principle applicable to all stool land, and that is that the supreme paramount interest is not vested in any single person or body as such. The absolute title is deemed to belong to the whole family; dead, living and unborn.
The general rule is that a valid alienation is one which is made by the occupant of the stool with the consent and concurrence of the principal councillors. ALLOTEY v ABRAHAMS Again, where the occupant does not participate in the transaction, it is void. AGBLOE v SAPPOR
OWIREDU v. MOSHIE
FACTS: the plaintiff obtained a lease from the chief of effia without the consent of the elders. The defendant obtained a lease from the predecessor of the chief which was consented to by the elders. Judgment of trial court was in the defendant’s favor. Appeal Korsah J HELD: the lease given the plaintiff appellant was given them without the consent of the head and principal members of the family and without the approval of the overlord of Effia stool as required in customary law. That lease was therefore not binding on the stool family.
However, a document purported to be executed by the occupant of the stool and at least the linguist would be deemed to be binding on the stool. AMANKWANOR v ASARE
ADJUBI V. MENSAH
FACTS: The linguist stool was newly created & a common ancestor of the parties occupied it. He acquired a lot of property in private life before ascending the stool & he died without earmarking his self-acquired property or indicating his intention to gift his property to the linguist stool. His successors to the stool were also appointed personal successors & they had free use of the property until the double succession ceased. The plaintiff thus contended that by customary law upon the death of O. his self-acquired property became family property and so in her capacity as the present successor in the family, she was entitled to their enjoyment and occupation. The defendant on the other hand submitted that upon the death of O. his self-acquired property enured for the benefit of the linguist stool created and first occupied by O
REASON: Unless a chief’s private property was earmarked when he ascended to the stool, it became mixed up with the stool property and could not be recovered after death or on deposition. This rule of customary law, however, was now subject to the qualification that if it could be proved by evidence that the new ascendant to the stool had by words or conduct indicated that he regarded the property as privately owned, then the question of ownership and right to possession of the particular property remained in the family of the stool occupant at death. It was now a rule of evidence and not a rule of customary law.
SERWAH V. KESSE
FACTS: The plaintiff was enstooled Queen Mother of New Juaben and destooled some years later. The defendant was her successor. During her reign, the Department of Agriculture paid rehabilitation grants in respect of 28 farms to the plaintiff and after her destoolment the grants were claimed by her successor the defendant, on the ground that the farms were stool property since they were paid to the plaintiff as stool occupant and not as beneficial owner of the property. In the circumstances the plaintiff brought an action claiming declaration of title to the farms, the recovery of any payments made by the Department of Agriculture to the defendant, an account and also an injunction.
HOLDING:
REASON: The stool of the Queen Mother of Juaben was of recent creation and not an ancestral one and as the stool had no property which could be inter-mixed with the self-acquired property of its occupant there was no necessity for a declaration of such private property prior to or upon installation. There are many exceptions to that rule one of them is that where the stool holder has to the knowledge of the elders of the stool, kept his self-acquired property distinct or where whilst he is on the stool he engages in his private business to the knowledge of the elders, from which he earns an independent income, his failure to make pre-enstoolment declaration of his self-acquired property will not make his self-acquired property stool property.