Division: IN THE COURT OF APPEAL
Date: 23RD MARCH, 1959.
Before: KORSAH C.J., VAN LARE J.A., AND OLLENNU J.
ARGUMENTS OF COUNSEL
J. B. Danquah for appellant. There were two actions. The first having been dismissed in our favour, we have not appealed therefrom, except as to costs. The second is for recovery of possession; in this, judgment was delivered against us, and from that decision we appeal.
The learned Judge in his judgment showed that he realised that questions of native customary law arose, for he said that even if of general application the Real Property Act, 1833, relied on by the defendant, would not be applicable, “the parties being natives, and there being no contract or transaction between the parties to this suit from which it can be implied that they agreed that their obligations in connection with it should be exclusively regulated by English law. It is now too well established that title by long occupation of someone else’s land with such knowledge is unknown to native customary law.” Under section 25(1)(b) of Courts Ordinance the use of an assessor was mandatory, and in proceeding without one the Court had no jurisdiction (Kuntu v. Afilfa VII) (12 W.A.C.A. 48).
Per cur.: The point raised is fundamental. Benjamin for respondent called upon to reply. It is submitted that section 25 is permissive—”any cause may be tried by the Land Judge with the aid of an assessor.”
J. B. Danquah called on to continue his argument. The passage from the judgment which has already been cited shows that the Judge at one stage formed the opinion that native customary law was involved. As soon as he formed that opinion it was his duty to empanel an assessor. A judge must not evade what is stated in the law (Maxwell, “Interpretation of Statutes” 9th Edition, p. 118).
The learned Judge having dismissed one of the consolidated actions failed to award costs in respect of that case. The appellant having succeeded, he was entitled to costs.
Section 3 of the Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance provides for an executive decision. Any rights acquired under such a decision are not customary rights, but statutory rights. They should therefore be pursued according to the principles of English law. The learned Judge held otherwise in that part of his judgment already cited.
The trial-Judge held that the area marked light purple on the plan was occupied by new tenants in about 1952. That finding was mistaken, for there was continuous farming there long before 1952.
It is admitted that the plaintiff obtained an inconclusive judgment in 1913, but it is submitted that if after judgment the defendant remained in possession for thirty (30) years without paying rent, the fact that he subsequently started to pay rent would not entitle the plaintiff to succeed unless expressly pleaded (in re Hobbs, Hobbs v. Wade (36 Ch. D. 553); Bright v. Bright (9 W.A.C.A. 48).
There was evidence of payment of rent, but none that defendant’s subjects have been paying tribute or rent since 1918. There is no conclusive evidence to support the finding that plaintiff had been collecting tribute or rents.
The executive decision was a conditional judgment which was never executed, and the period of six
(6) years within which it was open to plaintiff to enforce it has elapsed.
Benjamin for respondent called on to argue with respect to costs in the first suit. The point is conceded; quantum is left to this Court to decide.
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per cur: What do you say about the finding that the Real Property Limitation Act, 1833 is not applicable in this country?
Benjamin: There are decisions of this Court which have declared that it is applicable in certain circumstances.
JUDGMENT OF KORSAH C.J.
(His lordship stated the facts, and proceeded)-:
It is obvious that the defendant’s case in answer to the plaintiff s claims in both cases is based almost exclusively on the issues of law raised in his defence, none of which can be said to be likely to deprive the plaintiff of the benefits derived from the validated judgment of 7th February, 1913 by virtue of section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance.
(His lordship read the section as in the headnote, and proceeded:)
With regard to the first of the two suits, viz. No. 2/1952, wherein the claim is for an order for the defendant to carry out the order made on 7th February, 1913, to erect pillars at the defendant’s charge, the learned Judge held that the claim is misconceived. The sentence in the validated judgment reads as follows: “Concrete boundary pillars to be erected at the following points at the charge of Inyinahin.” I agree with the views expressed by the learned Judge, that the sentence merely directed boundary pillars to be erected, the cost of which was to be charged to the defendant; that there being nothing in the order to show who should erect the pillars, if the defendant refused to erect the pillars the plaintiff could have erected them, and demanded the cost from defendant; and that it might also have been contemplated at the time that an administrative officer in the area would see to it that defendant carried out the directions of the Court. The Judge finally held that he could not agree that the defendant could be held liable by virtue of the validated decision, and thereby compelled to erect the pillars. This, in my view, is a reasonable interpretation of the sentence contained in the said decision.
The learned Judge held, therefore, that suit No. 2/1952 was misconceived and therefore failed. This, in my view, is a correct conclusion which should not be disturbed. But the learned Judge did not apparently consider the question of costs with respect to this suit No. 2/1952. In view of the fact that there were two separate claims, which were consolidated for purposes of trial, the question of costs should have been considered separately in each of them
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and unless there was good reason to the contrary the successful party in either of them could not be deprived of his costs. No reasons have been stated, and I can find none, why in suit No. 2/1952 the defendant, who is the successful party, should not be granted costs in that suit. I would therefore allow the appeal with respect to costs in suit No. 2/1952, which by consent are fixed at £100 for Counsel, other costs to be taxed.
With regard to suit No. 5/1952, the learned trial Judge found in favour of the plaintiff, and gave judgment for the plaintiff (a) for recovery of possession, (b) for perpetual injunction and (c) for mesne profits, in respect of which he awarded £50 damages. It is from that judgment that the appeal in suit No. 5/1952 has been lodged.
The relief sought is stated thus:
(1) Separate costs to be awarded to defendant for his counsel in respect of L.C. 2/52, with an order that other costs for defendant should be taxed;
(2) the judgment in transferred suit No. 5/52, to be set aside, as without jurisdiction, or the plaintiff non-suited.
The grounds of appeal have repeated the questions of law raised in the defence, with one additional ground contending that the learned Judge exceeded his jurisdiction in trying the suit without the aid of an assessor or assessors. The relevant provision in the Courts Ordinance enabling a Judge sitting in the Land Court to try a land case with the aid of assessor, or assessors is contained in section 25 of the Courts Ordinance. Section 25, sub-section 1 reads as follows:-
“A Land Court shall be fully constituted by any one of the Land Judges but, nevertheless, any cause:
(a) may be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge considers such a course to be desirable after hearing the representations of the parties as to such course;
(b) shall be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge is of opinion that a question of native customary law is involved.
In view of the fact that the claims in both suits are founded on rights derived from the validated decision of a court of competent jurisdiction, which is not disputed, it can hardly be contended that the principles of native customary law and tenure were essential for the determination of the plaintiff s claim in either, or both, of the two (2) suits which were consolidated. In any case, there is nothing on
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record to show that in the course of the proceedings the learned Judge considered it desirable to seek the aid of an assessor; indeed, I can find nothing on the record to justify such a course.
It will be observed that, by section 25(1)(a), the law merely permits such a course if the Land Judge deems it desirable; whereas, by section 25(1)(b) it is mandatory, but only when a question of native customary law is essential for the determination of the claim. In my opinion, the learned Judge was not required in the circumstances to invoke the aid of an assessor or assessors, and was therefore competent to try the case without an assessor.
With regard to the contention that defendant’s subjects have continued to farm on the land in question both before and after the decision of the Chief Commissioner’s Court in 1913, the learned Judge held that the said decision is in full force and effect, and binding on defendant and his subjects. The defendant’s subjects farming in the area since the decision have done so as tenants of plaintiff s Stool, and have paid tribute to plaintiff s Stool since 1918, after the expiration of five (5) years of grace as permitted by the decision. Such occupation, therefore, could not entitle defendant to claim any prescriptive right or interest in the area in dispute.
In the Court below the defendant relied on the Real Property Limitation Act, 1833, which he contended barred the claim of the plaintiff. Although the learned Judge rightly held that his finding of fact made it unnecessary to consider this point, he nevertheless expressed the view that the Real Property Limitation Act, 1833, is not a statute of general application, and not applicable in this country. With the greatest respect, I am impelled on the authorities, e.g. Koney v. U.T.C. Limited (2
W.A.C.A. 188) to observe that he stated the law per incuriam with regard to the application of the Real Property Limitation Act, 1833.
All other questions of law have been satisfactorily disposed of in the judgment of the Court below.
JUDGMENT OF VAN LARE JA.
I agree.
JUDGMENT OF OLLENNU J.
I also agree.
DECISION
For these reasons I would dismiss this appeal.
