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most if not all accounts of customary land law take the form of legal
systematization: a lay person therefore enters this area of study at his own
peril. It would thus be unwise to proceed on the assumption that we shall
somehow be able to strip the existing accounts oftheir legal interpretations
and shall then be able to present land tenure arrangements 'as they are' (or
'were'). The best we can do is to opt for the interpretation that seems the
most adequate.
In this respect there is little to be said in favour of the so-called
'realism', launched by Sir William Brandfor Griffith when he served as
Chief Justice in the Gold Coast Supreme Court between 1895 and 1911, and
which dominated the superior courts in the first quarter of the 20th century
(Asante 1975: 41). This school aimed explicitly at recognition ofthe rights
of cultivators as being equal to English freehold (in fee simple)5 so that, in
view of the permanent occupation and cultivation ofland for cash cropping
purposes, it would become freely alienable (Asante 1975: 41-45). The
subsequent interpretation, which was based on the rediscovery of 'pure
native tenure' and was influential from the early 1920s to the late 1950s, is
equally inadequate. This school had its beginning in a 1921 decision ofthe
Privy Council in which Lord Haldane delivered the opinion of the Judicial
Committee 'that the notion of individual ownership is quite foreign to
native ideas '. 6 According to this view individual ownership of land was a
concept alien to West Africa and nothing but an intrusion of English legal
ideas. Subsequently, the superior courts of West Africa clung to the concept
of communal ownership of land as the first postulate of customary land
law. In this way they engaged in a concerted but completely misguided
action to ignore and thereby suppress the existence of individual ownership
in any form, as well as the related right to alienation ofland (Asante 1975:
45- 50).
If, then, we have to accept that our knowledge of Akan land tenure
is inextricably bound up with common law interpretations under conditions
of colonialism (and later of neo-colonialism), we must not resign ourselves
to interpretations that aim either at establishing property relations which
conform to English legal conceptions or at emphasizing the 'traditional'
with a view to freezing the situation. We prefer an interpretation of native
law that is concerned with recognizing social reality and thus has a more
open eye for the changing nature of economic and social practices. Such
an interpretation was first developed in 1957 by Ollennu when, in Ohimen
vs. Adjei, he ruled that the usufructuary is regarded as 'owner' of the land
in his possession and can alienate it voluntarily to a fellow subject (of the
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