Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 20TH NOVEMBER, 1959
Before: OLLENNU J.
COUNSEL
Plaintiff (Kano) in person.
de Graft Johnson for defendant (Atakpla).
JUDGMENT OF OLLENNU J.
(His lordship reviewed the history of the matter, and continued:—
The Native Court gave judgment on the 11th March, 1958, in the first action (Atakpla v. Kano) in the following terms:—
“In this case Atakpla sued Kano to show before the Court Narteh whom he Kano referred to in a letter Exhibit “A” giving him a portion of land situate at Ayikuma. The Court has heard the evidence given by parties, and the witness called by Kano who had told the Court the agreement reached between them when the land was given. From the evidence of that witness it is clear that it was not Narteh who gave the land to Kano and who gave the land should be mentioned and not Narteh who only acted as a Linguist, and in that case Kano’s letter Exhibit “A” is uncalled for. Judgment therefore for Atakpla against Kano with costs.”
In this Court it has been submitted on behalf of Atakpla that that judgment operates as res judicata, since it declares Atakpla the owner of the land. Upon the clear wording of the judgment (which I have quoted in extenso) I am unable to see how a decision of that nature can operate as res judicata in the present dispute. All that that judgment decided was that if Atakpla was the grantee of the land, on any matter arising which affected that land the proper person for Atakpla to mention would be his grantor (not Narteh, who merely acted as a Linguist at the grant). In effect, therefore, that judgment upheld the contention which Kano put up in the instant case—that he is a grantee, entitled to quiet possession of the land. It does not, in my opinion, hold (as Counsel would wish the Court to accept) that Kano had no interest in the land. There is no substance in the submission of Counsel that the dispute is res judicata by reason of that judgment.
[p.389] of [1959] GLR 387
It was submitted further on behalf of Atakpla that the judgment of the Native Court was against the weight of evidence, because the judgment cited had led him to believe that he was the owner of the land, and that he was entitled to give notice to Kano to quit the land at his will. With respect to learned Counsel, I must say that this submission is contradicted by the letter which Atakpla wrote to Kano, and which necessitated this action. In that letter Atakpla expressly states that he was giving the notice, not in his personal capacity, but as an agent of Kwami Larkotey, the present owner of the land and son of the original owner. In the face of that, I fail to see how it can be suggested that Atakpla was misled by the judgment to believe that he was declared to be the owner of the land, and could therefore molest the plaintiff and request him to quit the land. If he fell under any misapprehension, it was by his own fault.
Again, learned Counsel referred to the following passage in the judgment of the Native Court whose proceedings are the subject of the present appeal (Kano v. Atakpla).
“According to custom, if land is given to another to build and settle on it, and he has doneso and settled, and later you require your land back, you will either pay for his building on the land, or help him to build on another site if the relationship is good, but you cannot eject him by force as it is being done in this case.”
Counsel submitted that the proper interpretation of that statement of customary law is that a grantor or licensor can eject his licensee at will, unless there is good relationship between him and his licensee or grantee, in which latter case he would either have to pay him the cost of any building he has erected on the land, or assist to erect an alternative building. I am unable to place such an interpretation upon that statement made by the Native Court. In my opinion, all that statement means is this-that a grantor or licensor of land who has permitted his grantee or licensee to occupy and build on his land, or to incur expenditure to improve it is, by customary law, not entitled to eject the grantee or licensee at will. He can only do so upon terms to be agreed upon between him and the grantee or licensee—such terms as payment of compensation for the disturbance of his possession, and the value of his buildings on the land, or provisions of an alternative accommodation comparable to what the grantee or licensee is to lose.
By customary law, where an owner of land grants land to another person for purposes of building, and the grantee builds on that land and occupies it (that is, expends money to improve the land) the grantor is not entitled to eject the grantee upon any flimsy excuse,
[p.390] of [1959] GLR 387
or at his will. He can eject only where the grantee denies his title; even in that case, in order to perpetuate and evidence the fact of his ownership as grantor and the grantee’s acknowledgement of his title he may request the grantee to pay rent or tribute for his continued occupation. If the grantee fails to make that acknowledgement, only then will the grantor be justified in ejecting the grantee. But so long as the occupation of the tenant or the licensee is not inconsistent with the title of the owner, and the licensee or grantee does not deny the title of his grantor or licensor, the possession of the grantee or licensee will be protected by customary law, and he cannot be ejected. I would add that if the Native Court had held otherwise I would have felt myself bound to hold that such a custom was repugnant to natural justice, equity, and good conscience, and was one which this Court by virtue of section 87 of the Courts Ordinance would not enforce.
DECISION
The judgment appealed against is, in my opinion, sound. The appellant has not been able to show in any way whatsoever that it is wrong. The appeal is without substance, and must be dismissed, with costs fixed at £8.
