Division: IN THE HIGH COURT, KUMASI
Date: 18 DECEMBER 1964
Before: APALOO JSC
JUDGMENT OF APALOO JSC
In this action, the plaintiff representing a syndicate of Akwapim farmers, claims against the defendants an order of perpetual injunction restraining the defendants from any further interference with the rights of the plaintiff on a large tract of land said to be situated on the Banso stool land, a plan of which was attached to the writ, and damages for trespass. The plaintiff claims that the land in dispute was sold to his syndicate in 1927 by the Banso stool. Almost all the defendants are farmers and made cocoa farms on various portions of the land at varying periods. The defendants do not all derive their title from one source. The second, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, twentieth, twenty-first and twenty-second defendants rely on a customary grant from the Miriwasan stool. The twentieth, twenty-fourth,
twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first,
thirty-second and thirty-fourth claim title from the third defendant who is the Odikro of Dwedwenase. The twenty-third and thirty-third defendants claim title from the Banso stool. The nineteenth defendant alone relies on a customary oral grant from the Kyempo stool. A plan showing the land in dispute and the farms of these various defendants was made by a licensed surveyor by the name of Edifor, pursuant to an order made by me and was admitted in these proceedings as exhibit Z. For the sake of convenience, I shall designate the defendants according to the source from which they derived their title. Accordingly, I will refer to the defendants claiming title from the Odikro of Miriwasan as the Miriwasan defendants, those
relying on a grant from the Dwedwenase stool as the Dwedwenase defendants, and in like manner, I will call the twenty-third and thirty-third defendants the Banso defendants. As the nineteenth defendant alone obtained his title from the Kyempo stool, I will refer to him simply as the nineteenth defendant. The Banso stool itself sought and was joined to this action as co-defendant. Its avowed object was to resist the plaintiff’s claim inasmuch as it alleges that the land in dispute was sold to the syndicate by the Banso stool. The plaintiff also sued the Kokofu stool the stool to which the stools of Dwedwenase, Miriwasan and Kyempo are subservient. It is not apparent from the plaintiff’s writ and statement of claim, the ground on which he considers himself entitled to either an injunction or damages against the Kokofu stool qua stool, and I am inclined to think the object of their being sued is to anticipate an issue of title likely to be raised between the plaintiff or Banso stool against any of its subordinate stools.
The multiplicity of the defendants is reflected in the diversity of the issues joined between the plaintiff and the various defendants. The pleadings filed by the defendants were the subject of such constant amendments that they have proved to be anything but helpful in clarifying the questions which ought to be determined between the plaintiff and the various groups of defendants. Accordingly, the true issues are discernible from the evidence rather than what is formally set out in the summons for directions. As I see it, the most important question which ought to be determined as between the plaintiff and the co-defendant stool is: Was the agreement which was admittedly entered into between the plaintiff and the co-defendant in 1927 in respect of the land in dispute, one of sale or customary abusa tenancy? If it was the latter, then the action must collapse as the basis of the plaintiff’s claim would have failed. The
evidence, of course, establishes that the plaintiff and members of the syndicate have occupied the disputed land since 1927 and have made extensive farms and built cottages and villages on it. If the agreement was one of sale, then I apprehend the long possession and exercise of acts of ownership by members of the syndicate should prove to be of great value in determining the issue of title joined between the Banso and Dwedwenase stools. There is also pleaded by the co-defendant stool against the plaintiff, estoppel by conduct. That does not seem to me to be a serious question and was not urged with anything approaching zeal by counsel for the co-defendant stool.
The Dwedwenase defendants were put on the land by the third defendant. He claimed that that land was his and averred that he was entitled to put the defendants who claim title through himself on that land. He says the Banso stool had no right to alienate that land to the plaintiff and for his part, counterclaims for such land as is in the occupation of the Dwedwenase defendants. The evidence shows that both the Dwedwenase and Banso stools own land contiguous to each other and the issue raised between them is as to their true boundary and the consequential question as to the ownership of the land between the two disputed boundaries.
The boundary claimed by each of these two stools is shown on the plan exhibit E.
That claimed by the Banso stool is shown edged brown and the Dwedwenase boundary is edged yellow. As the plaintiff relies on the correctness of the Banso boundary to sustain his action against the Dwedwenase defendants, the plaintiff and the Banso stool closed their own ranks and were at one in contending that the true boundary between the stools of Banso and Dwedwenase is the one shown edged brown on the plan exhibit E. If this claim fails, then the plaintiff ‘s claim, in so far as it affects the Dwedwenase defendants, goes with it. If it succeeds, the plaintiff will be entitled to the reliefs he seeks against the Dwedwenase defendants, provided he is also successful in establishing that the land in dispute was sold to the syndicate and provided further that the Dwedwenase defendants fail to bring themselves under the umbrella of the Farm Lands (Protection) Act, 1962. [1]
The evidence establishes that some time in 1952, the Kokofu stool jointly with the Odikro of Miriwasan brought an action against the Banso stool for a declaration of title to land generally called the Miriwasan lands. That action commenced in the Asantehene’s Court. On 31 December 1953, that court entered judgment in favour of the Banso stool. That judgment was affirmed by the Land Court on 5 April 1956. Although the land in dispute in that action was not delineated on a plan, it is admitted in these proceedings that it is either the whole or a slightly smaller portion of that land that forms the subject-matter of the instant suit and is therefore indentical with it in the juridical sense. When the statement of defence was lodged on behalf of the Miriwasan defendants on 10 June 1960, the first and second defendants’ further appeal against the judgment of the Asantehene’s Court was pending in the then Court of Appeal. Accordingly, it was pleaded on their behalf that, “the judgment of the Land Court dated 5 April 1956 is sub judice before the Court of Appeal, in which appeal the first and second defendants have a good fighting case on the merits.” That averment turned out to be no more than bare
optimism. On 17 March 1961, long before I began the hearing of this case in October 1962, that litigation was finally concluded in favour of the Banso stool, the appeal being summarily dismissed. The Miriwasan defendants are therefore estopped per rem judicatam from resisting the Banso stool’s title to the land in dispute. Accordingly, if I find it established that there was a valid customary sale of that land to the syndicate in 1927, there can be no question but that the Miriwasan defendants would be equally precluded per rem judicatam from contesting the plaintiff’s title to the land in dispute. This position was obviously appreciated by the legal advisers of these defendants. Accordingly, on 3 June 1963, and 12 June 1964, the Miriwasan defendants amended their statement of defence by pleading in the alternative that “even if the
land on which their farms are belongs to the plaintiff or co-defendant, by the provisions of Act 107 they cannot be dispossessed of their farms.” As it turned out, the only serious issue submitted for my determination as between the plaintiff and the Miriwasan defendants is whether or not they are entitled to be protected under Act 107.
The Banso defendants were not represented by counsel. On 6 April 1960, each of them filed a home-made defence in which they averred that they were in no position to dispute or admit the plaintiff’s claim. They say the land on which they made their farms was granted to them by custom by the Banso stool. They say further that they made their farms in ignorance of the plaintiff’s title and have at no time been warned of any adverse claim. The Banso stool admits the grant to them. The farms made by them are shown in the plan exhibit Z and lie wholly in the land in dispute. If therefore the plaintiff succeeds in establishing the prior title of the syndicate by purchase, then I conceive I must give consideration to the question whether
the evidence entitles me to invoke in their favour the provisions of Act 107. They have themselves not asked for this relief, but they have not obtained any professional assistance and if theirs is a deserving case, I believe it would be my plain duty to accord them that statutory remedy.
The nineteenth defendant contends that the land on which his farms are situated (he has two farms), belongs to the Kyempo stool and disputes the right of the Banso stool to grant that land to the syndicate. The evidence shows that both the stools of Banso and Kyempo have a common boundary. The plaintiff claims that the nineteenth defendant’s farms lie on the Banso side of the boundary on a portion of land sold to the syndicate in 1927. The nineteenth defendant says that if this averment be true, he would seek to be protected by Act 107.
None of the defendants who the plaintiff claims are on the land wrongfully, derive title from the Kokofu stool. There is no satisfactory evidence that the first defendant stool authorised any of the defendants to be on the disputed land and as I said, the basis on which the plaintiff seeks the reliefs I have already recited against the Kokofu stool is altogether unclear to me.
Having stated what the evidence reveals to be in issue between the plaintiff and the defendants, I must now attempt a determination of those issues. I have listened to the oral testimony of over forty witnesses and have perused no fewer than twenty-two exhibits. I propose to relate the evidence led in proof of the various controverted matters briefly and to state my conclusions and the reasons for them equally briefly, so that if my conclusion on any particular issue is wrong, it may be seen to be wrong and, I hope, corrected.
On the issue joined between the syndicate and the Banso stool, I have heard evidence in support of each of the rival stories. The plaintiff himself gave an extremely detailed account of how the land came to be bought and how it was demarcated and the agreed price. He also testified about and demonstrated how the guaha custom which was performed to seal the bargain, was made. He was fortunately able to call three elderly witnesses from Banso whose evidence made a most profound impression on me.
They are Akosua Twumwa the Queen-mother of Banso, Kwame Adubofuor and Kojo Donkor alias Yamoah. I have seldom met witnesses who gave more clearly an impression of reliability and truthfulness. Adubofuor said, and I believe him, that he in fact cut the guaha on behalf of and at the request of the Banso stool. Nana Yamoah was himself an occupant of the Banso stool and he and Akosua Twumwa were royals who were eminently in a position to have a personal knowledge of the matters about which they testified. I can see no reason at all why these three respectable witnesses would wish, so to speak, to swear away property which belongs to their own stool. I am satisfied that their testimony about the sale of the land in dispute was prompted by conscience and truth. The plaintiff’s oral testimony was wholly and completely clinched by the two documents tendered by him. I find that the two documents are genuine and were made in one case on the authority of the then Bansohene Nana Kwaku Kyei and in one case by himself and provide cogent documentary evidence of the sale. The evidence in support of the alleged abusa was given by Nana Owusu Afriyie the present Bansohene, Kofi Chimen and
Kojo Donkor. Nana Owusu Afriyie said he was not present and spoke from hearsay. Both Chimen and Donkor swore that they were present at the Ahinfie when the abusa tenancy agreement was entered into. They said the plaintiff agreed to yield over to the stool one-third of the farms upon their maturity. I am satisfied that the syndicate commenced farming on the land in about 1929 and their cocoa farms must have matured long since. Yet none of the various occupants of the Banso stool succeeded in partitioning the farms of the syndicate and taking possession of the agreed third share. In my opinion, not only Nana Owusu Afriyie, but Kofi Chimen and Kojo Donkor were mendacious witnesses and inasmuch as they sought to say that the land was granted to the plaintiff as abusa tenant I am satisfied they agreed together
to assert the same falsehood.
I find that the land in dispute was sold to the plaintiff representing a syndicate of Akwapim farmers by the Banso stool in 1927. I am satisfied that this sale was open and the ceremony of guaha was performed to perfect it. I find it proved that the area was demarcated for the plaintiff and that is the area shown edged red on the plan exhibit Z. I reject the contention that the plaintiff and the syndicate are estopped by conduct from laying claim to the land in dispute. I find that during the pendency of the Kokofu-Miriwasan and Banso litigation the syndicate identified itself with the Banso stool and paid their assessed share of the expenses incurred in that litigation (see exhibit F). Far from standing by, I am satisfied that the syndicate rendered positive financial assistance to the Banso stool in the prosecution of that suit. It follows that the codefendant’s counterclaim fails.
There is, as I have said, an issue as to boundary between Banso and Dwedwenase. The evidence led by each stool as to its boundaries is hard to follow without a plan. In the plan exhibit Z, the two rival boundaries are shown. The controversy about the boundaries between these two stools arose only since the plaintiff sought to recover damages against persons placed on the land in dispute by the Dwedwenase stool. It thus became necessary for that stool to delimit its boundaries in such a manner as to embrace the farms of its grantees. The evidence completely
satisfies me that these Akwapim farmers have been in occupation of the entire land edged red since about 1929 and have at no time been disturbed by the Dwedwenase stool. It seems to me remarkable that if they have all the time remained in trespass on Dwedwenase land, the stool should have to date taken no steps against them. I think there is a strong reason for wedwenase to wish to extend its boundaries. The Banso stool has none. Indeed that stool is itself at daggers drawn with the syndicate and in so far as it gave evidence which supports the plaintiff’s syndicate, it did so obviously grudgingly. In 1927, when the land was about to be sold to the plaintiff’s syndicate a crowd of people went on the land. It took them days to demarcate the land and in a small place, the sight of strangers buying a large tract of land would make news. I cannot believe that the Dwedwenase stool would not have heard of it. If the boundary which they now claim is true a large portion of their stool land was wrongfully alienated and yet the stool functionaries of 1927 did nothing. One’s experience of the world teaches one that that is not the way in which the Dwedwenase stool would behave in the light of what they must have known. Furthermore, if the land sold to the syndicate had been near to Banso’s ancestral boundary with Dwedwenase, I feel sure that the elders of Banso would, doing what custom demands, have invited the Dwedwenase elders to be present. There is no reason why I should assume that stool elders and stool occupants of the 1920’s would not behave reasonably. After all, native custom is said to consist in the performance of the reasonable in the special circumstances of the case. But if as seems probable, the Banso stool knew that the land sold to
the syndicate was far away from their boundary with Dwedwenase, one can begin to see some reason why Dwedwenase was not invited to witness the demarcation.
The land in dispute originally belonged to people called the Miriwasans. Nana Yamoah of Banso gave evidence in the Kokofu-Miriwasan litigation that Nana Opoku Ware fought the Miriwasans and defeated them about 200 years ago. They then fled the land which was thereafter entrusted by the Asantehene to the Banso stool (see exhibit D). That is how the Banso stool came to share a boundary with Dwedwenase. The present Miriwasan defendants who claim to be the descendants of the vanquished Miriwasans returned to settle on the disputed land comparatively recently. Gyabeng said this was about 25 years ago. He said the ancient boundary was then shown to the second defendant alone at his request. Nothing was
done to mark this. I find it hard to believe that an ancestral boundary between two stools can as a matter of custom, be shown only to one individual. Not very long ago (in the 1950’s) Ofoase was engaged in litigation with Dwedwenase. In the course of it, it became necessary for the entire boundaries of Dwedwenase lands to be shown. A plan was made by Mr. Hagan (exhibit 1) and this shows what the Dwedwenases claim is their true boundary with Miriwasan lands. On their own showing, the Miriwasans were not invited, let alone the Banso stool, to witness the boundary. Both Kofi Nimo and Mr. Hagan said while they were in the process of cutting the track, the second defendant who was and is still the Miriwasanhene appeared and agreed that what had so far been done was the true boundary between his stool and Dwedwenase and thereafter disappeared. That strikes me as an odd story and I decline to believe it. I think the Dwedwenases were engaged in cutting out a boundary that suited them.
Gyabeng who represented the Dwedwenase stool admitted in cross-examination that in ancient times, his forbear marked boundaries with natural features such as rivers and hills. In Ashanti, where wars were fought perennially, such features would be extremely valuable as bulwarks against invading enemies. The boundary which the Dwedwenases claim as their ancient one with the Miriwasans and a fortiori the Bansos, does not run along one but across many streams. Hagan said he had to cut quite a number of streams while demarcating the Dwedwenase Miriwasan “ancestral boundary.” In my opinion, as an ancient boundary, the Dwedwenase boundary is an extremely unlikely one. I think the Banso boundary is the more likely. That, at least, has the merit of running for the most part along streams and hills (exhibit
Z).
There is certainly no love between the plaintiff and the Miriwasan defendants in this action. I form the distinct impression that the Miriwasan defendants were in no way inclined to help the syndicate fight its case. Yet the fourth defendant who represented the Miriwasan stool gave evidence about the boundary between Dwedwenase and Miriwasan which more or less accords with what is shown in the brown boundary. The fourth defendant himself owns a farm which is marked in the plan exhibit Z as A2. If the Dwedwenase boundary is true, his form lies along that boundary. But he says his farm is far away from the Dwedwenase-Miriwasan boundary. He estimates it at three miles. I think his evidence of the boundaries is true. Although the fourteenth defendant who is the Krontihene of Miriwasan did not impress me as having as dependable a knowledge of the boundaries as the fourth defendant, he admitted in cross-examination what counsel for the Banso stool put to him as the true boundary between Miriwasan and Dwedwenase. In accepting the evidence of the fourth and fourteenth defendants as corroborative of the Banso evidence on the boundaries, I have not lost sight of the letter exhibit G by which the Bansohene sought to collude with the Miriwasans to the prejudice of the Akwapim farmers. I think their evidence of the boundaries is nevertheless true.
In the plan exhibit 1 in which the Dwedwenases unilaterally drew out their boundaries, there is shown on the Dwedwenase side of the boundary, a large mountain therein described as “Miriwasan Beppo.” The Krontihene of Miriwasan said in cross-examination that that mountain lies wholly in Miriwasan land. Either Miriwasan land derived its name from this mountain or the mountain must be of special value to Miriwasan for a village to be named after it. When Gyabeng realised that it was unlikely that Miriwasan Beppo should lie on Dwedwenase rather than Miriwasan land, he tried to change its name. He called it Dompim Beppo and said that part on the Dwedwenase side of the boundary is called “Dwedwenase Beppo” while the part which lies in Miriwasan goes by the name “Miriwasan Beppo.” If
that be true, it completely passes my understanding why they gave the name of that hill to their surveyor as “Miriwasan Beppo” and tendered as part of their case a plan in which that mountain was so described.
An appraisal of the evidence led in support of the rival boundaries which I have attempted, constrains me to prefer the Banso boundary. I conclude that it is the true one. I find that that is the boundary shown on the plan exhibit Z and marked brown. Inasmuch as the Dwedwenase stool admitted making a grant of land and putting the Dwedwenase defendants in possession of portions of the area edged red, I hold that it is liable in damages to the plaintiff’s syndicate in trespass. It goes without saying, that the Dwedwenase stool’s counterclaim against the plaintiff and his syndicate fails. I will assess damages against the Dwedwenase stool later in this judgment.
The area of land which I found to have been sold to the syndicate is extremely large: 4.5 square miles. I find that this land was partitioned among various members of the syndicate who reduced their respective areas into occupation. It is possible that in or about 1944, some areas were not reached by cultivation. Kwesi Quaye’s evidence suggests that some old farms of departed members of the syndicate were left unattended and these areas may have taken on the form of virgin forest. I find it proved that in or about 1944, Nana Akumia of Dwedwenase made customary grants of some of these areas to some farmers from Koforidua, New Juaben. It is not possible to determine on the evidence whether he made these grants fully conscious of his want of title. It is probable that he may have thought they form part of his stool land. I find that such grants were made to Kojo Fordjour (twenty-sixth defendant) Kwasi Nkrumah whose nephew Fordjour Kumah was sued as the twenty-eighth defendant, Kojo Amofa (twenty-fourth defendant) and possibly Kojo Donkor whose successors Amoakohene and Larbi were sued as the twenty-fifth and twenty-seventh defendants. I am satisfied that they commenced farming as soon as they obtained their respective grants. I find positively that they were not aware that that land belonged to the Banso stool or that seventeen years previously, a large tract of land including the areas granted to them was sold to the syndicate by the Banso stool. Kojo Fordjour carved out a portion of his farm for his son Kojo Boateng who was sued as the twenty-ninth defendant. Their various farms are shown on the plan exhibit Z and are marked A20, A22, A18, A19, A21 and A23 respectively. I am bound to find and I do find that each of these defendants acquired his land in good faith. The evidence does not entitle me to hold that their respective areas have been farmed eight years before the acquisition. I hold therefore that these defendants bring themselves within subsection (1) of section 2 of Act 107. Accordingly, notwithstanding the defect in their title I propose to confer on them valid title to their farms but they will pay to the plaintiff the compensation which I will hereafter assess.
I find that at some time subsequent to April, 1956, when the Miriwasan litigation was on appeal to the Supreme Court the Dwedwenase stool also made grants of portions of the area edged red to Kwasi Nantwi (thirtieth defendant) Kofi Sraha (thirty-first defendant) Teacher Boakye (thirty-fourth defendant) and Yaa Nyebieye (thirty-fifth defendant). These various persons made farms on their lands and these are shown in the plan exhibit Z as A24, A35, A28 and A29 respectively. Having found that that land belongs to the syndicate, the only question left to be decided between the syndicate and these various defendants is whether they are entitled to be protected under Act 107. Although they have been duly served with the writ, the thirty-first, thirty-fourth and thirty-fifth defendants have not seen fit to give evidence and endeavour to bring themselves under the statutory protection. Accordingly, I hold that as against the thirty-first, thirty-fourth and thirty-fifth defendants, the plaintiff is entitled to an order of perpetual
injunction and damages for trespass. This, I am soon to assess.
The thirtieth defendant gave evidence and said he obtained the grant about sixteen years ago. That would put the date of his grant back to about 1948. I find against that. He said he has been on the land continuously since and has not been disturbed by anyone. Kwesi Quaye however gave evidence that when he saw the thirtieth defendant on the land, he told him that the farm belonged to his late brother by the name Abradu but the thirtieth defendant said he bought the land from the Dwedwenasehene. I prefer that version of the matter. It seems to me however that this was some time after he had settled on the land. Whether or not he acquired the land in good faith must depend upon the state of his knowledge at the date of the original acquisition. He obviously cannot have known that that land was rightfully sold to the syndicate in 1927 and his subsequent knowledge of an adverse claim, cannot in my judgment, relate back to the original acquisition. I find that he acquired his land in good faith and in all other respects, brings himself within the protection of the Act. I propose therefore to confer on him also valid title subject to payment by him of compensation to the plaintiff. The thirty-second defendant also appears to have derived his title from the Dwedwenase stool but he has not been served with the writ. I therefore make no order for or against him.
I have already said the only serious question submitted for my determination as between the syndicate and the Miriwasan defendants is their entitlement to protection under Act 107. The judgment of the Asantehene’s Court in the Kokofu-Miriwasan dispute (exhibit F) decided that when the original Miriwasans were defeated, they sold the land which Nana Asantehene thereupon entrusted to the Banso stool. I have already found that in 1927, the area in dispute was sold to the syndicate and this was partitioned and occupied by the various members of the plaintiff’s company. In or about 1939, that is about 25 years ago, the second defendant and a few of his relations who claimed to be descendants of the vanquished Miriwasans came and settled upon a portion of the area in dispute. This area belonged to a deceased member of the syndicate by the name Duodu. I find that Kwesi Quaye who was then in charge of the whole land, warned the second defendant and his relations of their title. They stayed put and continued in trespass. I find it established that Kwesi Quaye reported this trespass to the then Bansohene, Owusu Arhin. The latter went on the land but failed to introduce himself to the trespassers as the Bansohene. He was destooled for this. He was succeeded by Nana Yamoah, certainly a militant individual. Nana Yamoah went on the land with a considerable number of his subjects and set fire to the cottages and other possessions of the second defendant and his people. I find that this scared away most of second defendant’s followers and they escaped with the notable exception of the fourteenth defendant. Meanwhile, Nana Yamoah and some of his subjects paid the penalty for abating the trespass much too effectively. They were prosecuted and fined for arson. Spurred on by what he considered his victory in the criminal action, the second defendant invited back to the land many more persons of Kwahu extractions. I find that these persons came on the land in or about 1952 and were granted land in abundance and indiscriminately among the farms of members of the syndicate. These farmers are the present Miriwasan defendants. I think the second defendant’s object was to establish possession of the land as an adjunct to the claim of ownership he was minded to put up. On 18 September 1952, the second defendant in conjunction with the Kokofuhene commenced the proceedings which culminated in their vanquishment. On the facts of this case, it would take a lot to convince me that these Miriwasan defendants can have been unaware of the adverse claim of the syndicate and the object of their being urged to farm on the land. In this wise, the evidence of Yaw Asiamah, one of the Kwahu farmers whom the second defendant caused to be put on the land, is particularly revealing. Among other things, he said in re-examination as follows:
“If there is virgin forest between two old farms new farms can be cultivated between them and that is what my people did in this case. Abena Kuma (eighteenth defendant) for example made her farm between the farms of the Akwapim people. Even the first area I was given forms boundary with the farmstead of an Akwapim man called Kwame Kumah. He came and drove me away. When I was driven away a cousin of mine by name Kwabena Asesu who said he was strong, said he would make his farm there and that if he was challenged, he would fight. He in fact made the farm which is in existence now . . . A lot of the farmers have boundaries with the Akwapims . . . Some just walk through the farms of the Akwapims and make farm at their extreme edge and share boundary with them.”
I bear in mind that this witness admitted that he was sued on his farm by one Kwaku Adjei and that judgment was taken against him ex parte and that he might be a not altogether disinterested witness, but his evidence merely confirms the view I have myself formed.
Eight of the Miriwasan defendants, namely, the fourteenth, twenty-first, fifth, seventh, eighteenth, fourth, twenty-second and thirteenth whose farms are shown on exhibit Z as A10, A15, A3, A5, A13, A2, A16 and A9 gave evidence before me. They all said they obtained customary oral grants from the second defendant and made their farms on virgin forest. They also sought to imply that they were unaware of any adverse claim. But the fifth defendant seemed to have knocked the bottom out of this pretension in an answer she gave to cross-examination. She was asked, “Did not Fenteng [meaning the second defendant] tell you before you went on the land that there were some strangers on his family land and that you should
come and farm to stop them?” To which she replied, “Yes, he told me so.” I do not find that any of these defendants acquired his or her land in good faith. On the contrary, I am satisfied that they all obtained their grants and commenced farming in their respective areas in absolute bad faith. Accordingly, I hold that none of the above-mentioned defendants is entitled to the protection of Act 107. Indeed, I cannot believe that any rational system of law can ever seek to give legal protection to persons who showed contemptuous disregard of the rights of others as these Miriwasan defendants have done. Apart from the Miriwasan defendants who gave evidence, the second, sixth, eleventh and twelfth defendants who also rely on Miriwasan grants made farms on portions of the area in dispute. Their farms are shown in the plan exhibit Z as Al, A4, A7 and A8 respectively. None of these defendants have seen fit to give evidence. Accordingly, they will forfeit their farms with those Miriwasan defendants who gave evidence. In my judgment, the plaintiff is entitled against all these defendants to an order of perpetual injunction and damages for trespass. Such damages I will soon assess. The eighth, tenth, fifteenth, sixteenth and seventeenth defendants who also apparently farmed on the land on the faith of grants from the Miriwasan stool, have not been served with the writ and as against them, I make no order.
The issue between the syndicate and the Banso defendants (i.e the twenty-third and thirty-third defendants) presents the least difficulty of the multifarious issue joined in this case. I find that about twelve years ago, the Banso stool made oral customary grants to them of an area of land on which they have since made cocoa farms. These farms are shown in the plan exhibit Z and are marked A17 and A27. Those two farms lie in the land which I have adjudged to belong to the syndicate. In regard to these defendants, the only real question is whether they acquired their lands in good faith. I find that they have. Indeed their collective bona fides simply strikes one in the face. I am satisfied that they commenced making their farms as soon as they obtained their grants and were not aware of the defect in their title at the date of the grants. I do not find that eight years before they obtained their grants, their respective areas were farmed by anyone else. Accordingly, I decide that they are deserving of the relief provided by
section 2 (1) of Act 107. But they deprived the syndicate of a large portion of their land and must each pay to the plaintiff the compensation which I shall assess. I however confer on them a valid title to their farms.
That leaves me only with the issue joined between the syndicate and the nineteenth defendant. As I have said, he claims his title through the Kyempo stool. It is not in dispute that that stool has a boundary with the Banso stool. The Kyempo stool has not sought to join this action to contest its boundary with the Banso stool and thus have it judicially declared. Although the co-defendant gave detailed evidence as to his stool’s boundary with Kyempo, I do not consider myself called upon to declare strictly the boundary between these two stools. The Kyempo stool is no party to this suit and will not be bound by it. I conceive therefore that my duty is merely to decide whether the two farms of the nineteenth defendant, both of which lie in the area edged red, lie on Banso stool land. The burden is squarely on the syndicate to satisfy me as to this I think this burden can be discharged on a balance of probabilities.
It is obvious from the foregoing that the nineteenth defendant’s farms are both on the land which I find the Banso stool sold to the syndicate. I accept Kwesi Quaye’s evidence that that area used to be the old farm of Bempong, a deceased member of the syndicate. Quaye said there was a pillar marked “6” where Bempong made his farm. Although that pillar has been broken down, its concrete base is still visible and was shown on the plan exhibit Z by the surveyor. Quaye also recalled that there was an odum tree standing in Bempong’s farm. It is apparently still there and was shown by the surveyor. This evidence shows that from about 1928 or thereabouts, the Akwapims have been in occupation of this area. No one suggests that they were ever disturbed by the Kyempo stool. The evidence of the nineteenth defendant himself suggests that the Akwapims were on the land before he obtained his grant. He said he met an Akwapim man called Afful there and formed boundary with him. The other person the nineteenth defendant forms boundary with is Kwabena Amoah, who said he is on Miriwasan land. I think the probabilities are that the nineteenth defendant’s farms are also on Miriwasan land. Although the Kyempo stool at no time challenged the syndicate, the nineteenth defendant admitted that the Bansohene told him that where he made his farms belongs to the Banso stool. Bediako, the Krontihene of Kyempo, gave evidence that the nineteenth defendant’s farm is situated on Kyempo stool land and said the grant was made to him about fifteen years ago by the Kyempo stool. His evidence of Kyempo’s ownership of that area was bare. He said the Banso boundary with Kyempo was at a place known as Fufuonikorkor. He admitted that the land on which the exact boundary ran was sold by the Kyempo stool to some people of Koforidua about 39 years ago and those persons became adjoining boundary owners with the Banso stool. I am satisfied on a balance of probabilities that the land on which both farms of the nineteenth defendant lie belonged to the Banso stool which sold it to the syndicate in 1927.1 I hold therefore that that land was not Kyempo’s to grant and that the nineteenth defendant’s title is, on that score, defective.
I must now give consideration to the question whether the nineteenth defendant has succeeded in bringing himself under the umbrella of the provisions of Act 107. I think he came on the land about the same time as Amoah and had he also obtained his title from the second defendant, I should have no difficulty in rejecting his claim for protection under the Act. He obtained his grant from Kyempo which was known to form boundary with Banso. He cannot have known that in truth that land belonged to Banso rather than Kyempo. Quaye’s evidence suggests that Bempong’s land was left unattended when he died and the nineteenth defendant must have entered upon it when it has all the semblance of a Virgin forest. I think he became aware of the Bansohene’s and the syndicate’s adverse title after coming on the land. In all probability, pillar No. 6 was broken on his orders or by himself. I cannot think of anyone else who would be interested in its disappearance. But I cannot, only on that account, apply anything like a relation back theory and hold that he originally acquired the land in bad faith. I find that he acquired the land from the Kyempo stool in good faith about twelve years ago. I am satisfied that he commenced farming on it as soon as be obtained the grant. I cannot find on the evidence that the area on which he farmed was farmed eight years previously. Accordingly, like the others, I propose to confer on him valid title to the two farms made by him and which are shown in the plan exhibit Z and marked A30, subject, of course, to payment him of compensation.
I am left only with the claim of the syndicate against the Kokofu stool. As I have said repeatedly, I cannot find on the facts of this case that the Kokofu stool has done anything to entitle the syndicate to an injunction and damages against it. The fact that the two wrongdoing stools, Dwedwenase and Miriwasan are under it cannot by itself be a basis of liability. It was suggested to the Kokofuhene that when he lost the Miriwasan litigation, he instigated the Dwedwenasehene to put tenants on the plaintiff’s land. He denied this. I am not able to find on the evidence that the Kokofuhene authorised or instigated any of the trespasses I have held established in this action. Accordingly, the claim against him fails and is dismissed. The Kokofuhene appeared in person and was in court only a few times. I award him £G50 costs against the plaintiff.
Before assessing the damages and compensation in this case, it is necessary to dispose of a submission of law which was made on behalf of the syndicate. It was submitted by counsel for the plaintiff that in addition to any compensation that may be awarded against deserving defendants under subsection (3) of section 2 of Act 107, the syndicate are also entitled to damages against them for trespass. I was at first exercised in my mind about the correctness of that contention as it seemed to me hard for the defendants, that they should be made to pay compensation twice over, damages itself being a form of compensation by a different nomenclature. But on reflection, I think that that contention is in fact right. Had this Act not
been passed, the plaintiff would have been entitled to be awarded against the trespassing defendants, not only damages for the invasion of the syndicate’s possession, but would also be entitled to an order for recovery of the land trespassed upon. The latter remedy had been statutorily commuted to a money payment but the right to damages under the ordinary law remains untouched. I think therefore that those defendants whose titles I have held to be defective but on whom I nevertheless conferred a valid statutory title are liable to pay to the plaintiff both damages for trespass and compensation under subsection (3) of section 2 of the Act. I do not however propose to assess these two remedies separately. In those cases where both remedies are available against the defendants, I will make one lump assessment.
As far as the assessment of damages for trespass is concerned, I am to exercise my own discretion and in quantifying the damages, I think I ought to take into consideration not only the extent of the land on which the trespass has been committed by the individual defendants, but also the length of time the syndicate have been wrongfully kept out of the land. The Miriwasan defendants alone richly deserve to be condemned to pay exemplary damages to the plaintiff but in view of the fact that they would lose their farms by reason of this judgment, I do not propose to award against them more than ordinary damages.
With regard to the assessment of compensation, there is a statutory guide provided by subsection (3) of section 2 of the Act. The Act lays it down that the compensation shall not exceed twice the consideration which the farmer paid for acquiring the title which turned out to be defective. This guidance has not proved to be of any help in this case because in almost all the cases, the grants were obtained free of charge. In my judgment, it would be wrong and unjust to deny the plaintiff compensation only on this account. I have therefore of my own bat sought the help of the Lands Department as to what in their view, is a fair compensation for uncultivated forest land per acre. I was thrown back on the Rent (Cocoa Farms) Regulations, 19622 which the Minister responsible for lands has made pursuant to the Rents (Stabilisation) Act, 1962.3 The regulations pegged the rental for agricultural land suitable for cocoa production at five shillings per acre per annum. Accordingly, I was advised that in order to determine a fair compensation per acre of agricultural land, the rental of five shillings per acre per annum will have to be capitalised. Adopting a return of six per cent. in respect of investments in agricultural land, I was advised that the capitalised value of the land will fluctuate between £G5 to £G7 10s. per acre I. do not propose to take the highest or the lowest of these estimates. I will strike a golden mean between these two figures and in those cases where I award compensation, I will do so at the rate of £G6 per acre and add to the assessed compensation, a small sum by way of damages for trespass. I propose also to award damages
against the Banso stool. This is because that stool authorised the twenty-third and thirty-third defendants to trespass unto the plaintiff’s land for the purpose of making farms. The Banso stool knew or ought to have known that it sold the whole of the land in dispute to the plaintiff and this syndicate.
It appears that the person called Asare was sued both as the twelfth and twentieth defendant. Badu of Miriwasan was also sued as the fifth and tenth defendant. I will therefore award damages against them once only. Accordingly, I propose to award damages and compensation in the manner tabulated below:
| No. of Defendant |
Acreage | Compensation and Damages |
Damages only |
Remarks |
| £G | £G | |||
| Banso Stool | Nil | — | 100 | |
| 2 | 67.44 | — | 200 | |
| 3 | Nil | — | 200 | |
| 4 | 28.81 | — | 100 | |
| 5 | 3.94 | — | 25 | |
| 6 | 2.25 | — | 20 | |
| 7 | 13.44 | — | 75 | |
| 8 | Nil | Nil | Nil | Not served |
| 9 | 11.75 | 3/4 | 60 | |
| 11 | 5.94 | 3/4 | 35 | |
| 12 | 3/4 | 100 | ||
| 13 | 28.25 | 3/4 | 40 | |
| 14 | 7.25 | 3/4 | 150 | |
| 15 | Nil | Nil | Nil | Not served |
| 16 | Nil | Nil | Nil | Not served |
| 17 | Nil | Nil | Nil | Not served |
| 18 | 12.50 | 3/4 | 60 | |
| 19 | 84 | 600 | 3/4 | |
| 21 | 37.38 | 3/4 | 150 | |
| 22 | 16.50 | 3/4 | 80 | |
| 23 | 13.50 | 100 | 3/4 | |
| 24 | 136.50 | 900 | 3/4 | |
| 25 | 34.81 | 250 | 3/4 | |
| 26 | 29.38 | 200 | 3/4 | |
| 27 | 23.75 | 170 | 3/4 | |
| 28 | 25.38 | 180 | 3/4 | |
| 29 | 12 | 85 | 3/4 | |
| 30 | 6.81 | 60 | 3/4 | |
| 31 | 32.94 | 3/4 | 50 | |
| 32 | Nil | Nil | Nil | Not Served |
| 33 | 9.62 | 70 | 3/4 | |
| 34 | 4.44 | 3/4 | 30 | |
| 35 | 5.75 | 3/4 | 35 |
I enter judgment for the plaintiff against the defendants and co-defendant in the sums severally entered against them with costs. I also make against the Miriwasan defendants who have been served or who gave evidence, namely, second, fourth, fifth, sixth, seventh, ninth, eleventh, twelfth, thirteenth, fourteenth, eighteenth, twenty-first and twenty-second defendants an order of perpetual injunction restraining them, their servants or agents from entering the farms wrongfully made by them on the land in dispute. I make a similar order against the Dwedwenase defendants, namely, thirty-first, thirty-fourth and thirty-fifth who, though served, have led no evidence which entitles me to hold them protected under Act 107. For authorising the trespass, the Dwedwenase stool itself will pay only the damages I have assessed supra.
The plaintiff is entitled to costs which are considerable. I assess counsel’s costs at 350 guineas. Other costs including survey fees and witnesses attendance to be taxed. I order that the total costs shall be paid in the manner following: (a) The Miriwasan stool and the defendants claiming through it jointly and severally one-third; (b) The Dwedwenase stool and the defendants claiming through it jointly and severally one-third; (c) The Banso stool and the defendants claiming through it jointly and severally two-ninths; (d) The nineteenth defendant Kwaku Beng one-ninth.
I hereby discharge the order of interim injunction made by this court on 12 November 1960, and similarly revoke the appointment of receiver and manager. I hereby order that the said receiver and manager shall dispose of the moneys in his hands as I shall direct.
DECISION
Judgment for the plaintiff.
T.D.K.
