COURT OF APPEAL
Date: 25 OCTOBER 1971
BEFORE: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.
CASES REFERRED TO
(1) Amoabimaa v. Badu (1956) 1 W.A.L.R. 227, W.A.C.A.
(2) Fynn v. Kum (1957) 2 W.A.L.R. 289.
(3) Sarpong v. Amartey (1913) 2 Ren. 787.
(4) Vanderpuye v. Cudjoe (1915) K.F. 87.
(5) Okaikor v. Opare (1956) 1 W.A.L.R. 275.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Prempeh J. (as he then was) ordering a partition of family land communally
owned by the parties. The facts are fully set out in the judgment of Lassey J.A.
COUNSEL
J. K. Ahenkorah for the appellants.
No appearance by or for the respondents.
JUDGMENT OF LASSEY J.A.
On 22 February 1971 we dismissed this appeal and we now give our reasons for such dismissal.
The appeal was brought by the defendants against the decision of the High Court, Ho, granting the
plaintiffs the relief of partition whereby the land commonly owned by the parties was ordered to be
divided between them. The central issue in the appeal turned on the validity of this order of division.
I find it unnecessary to repeat the full facts which formed the background to the dispute, as these have already been set out in the judgment [p.45] of [1972] 1 GLR 43 appealed from. The dispute, no doubt, appeared to have been a longstanding one, and not of recent origin. The land in question is a village settlement occupied by the families of two tribal groups alongside the banks of the Volta river, and has ever been in their joint ownership and occupation. It seems some generations past the ancestors of both tribes migrated and settled on separate portions of this territory. Their manner of occupation was such that by mutual understanding one section was permitted to squat on one part of the land, while the other kinship group also established itself on the remaining tip of the common property. The plaintiffs who are of the Djavier tribe of Tefle refer to the portion of the communal land in their definite possession as “Tamlago” land, and the defendants who belong to the Hervier tribe call their area “Akpafleto” land. The territory thus shared between these two groups of
people is the ancestral land which is the subject-matter of the present dispute. Although this ancestral land now in dispute has not been distinctly demarcated between the tribes as such, yet the areas in separate occupation of either tribe are recognisable and easily identifiable by means of natural or physical features which have been traditionally accepted by the parties as forming the dividing boundary line between them. The history of the early settlement on the ancestral land showed that for many years the families of the two tribes lived side by side peacefully and shared common benefits and privileges equally in their environment on account of their common origin. An important feature of the way in which the two tribes lived on separate portions of the land now in dispute was that members of one group were not allowed to trespass or encroach upon the cultivation rights enjoyed by members of the other section in respect of the piece of land under its separate occupation, while it was also expected of each group to safeguard or guarantee the rights of the other to free utilisation of the benefits realisable from its area of occupation, and also to have peaceable and quiet enjoyment of it without molestation in any form whatsoever. The parties and their families also shared without hindrance, free access to common foot-paths running
through the land. This mutual arrangement whereby the families of the two tribes lived in peace and harmony on the ancestral land worked very smoothly and satisfactorily until such time that serious and constant differences or dissatisfaction between the various families living on separate portions of the land tended to disturb the spirit of good neighbourliness which hitherto had formed the basis for their co-existence and co-operation. The result of this was that the undivided portion of the piece of the land in the definite occupation of the plaintiffs, the Djavier tribe, was subjected to frequent and unwarranted invasions or encroachments by members of the defendants’ tribe who ravaged the same continually. As might be expected, the Djavier tribe resisted these acts of undue interference with the lawful exercise of their rights of occupation, and on two occasions, sued various members of the Hervier tribe for a declaration [p.46] of [1972] 1 GLR 43 of title in respect of the portion of land in their separate occupation, but failed in both actions. The court in each instance declined to grant the declaration sought by the plaintiffs mainly on the ground that the disputed land being jointly or commonly owned by the two tribal groups, each tribe enjoyed equally competing legal rights in it as the other, and as such it was not divisible into separate ownership at the instance of the Djavier tribe without the concurrence of the Hervier tribe. When the Hervier tribesmen renewed their acts of hostility and trespass against the plaintiffs’ portion of the land in dispute, the Djavier tribe commenced the action in the present appeal against them about the year 1957, claiming partition of the communal land between them. Their reason for asking for this kind of relief was obvious. They feared that the way the defendants and their agents conducted themselves on the land made further joint control and management of the land impracticable or difficult and occasioned the urgent need for a separate and individual ownership of either tribe. The plaintiffs contended that partition
was the only means whereby amity could be restored between the families of both tribes living on the
land. The Hervier tribe on the other hand refused to support the plaintiffs’ desire for partition and to turn what hitherto had been under their joint ownership into individual tribal ownership, contending that the court was not competent to decree the relief which, apart from being incompatible with the nature of the holding in question, was unknown to custom.
The plaintiffs alleged and proved in the court below that members of the defendants’ tribe regularly
attacked them and incessantly interfered with their rights of occupation in respect of the portion of the communal land agreed to be in their individual occupation, and often attempted to evict the tenants or licensees they put on their part of the land. They also stated in evidence at the trial that members of the Hervier tribe frequently cut or pillaged their economic trees which they planted on the land and had on many occasions burnt them. They produced evidence to show that the families of the defendants indulged in violent and criminal forms of living on the land in a manner which made further participation with them in managing the land impossible, hence their demand for an order for a division of the land between them. After carefully weighing all the circumstances in the case, and also considering the customary law position of the respective tribes in relation to their separate occupation of different portions of the village settlement in dispute, the court made definite findings in favour of the plaintiffs and granted them the relief they sought. The defendants felt aggrieved by the decision and appealed against it to this court mainly on the ground that the findings were against the weight of evidence. In making his submissions in this court in support of the grounds of appeal filed, learned counsel for the appellants, Mr. Ahenkora, argued that the judge was wrong in ordering a partition of the disputed land in [p.47] of [1972] 1 GLR 43 the absence of evidence showing that the family had broken up into component parts. Counsel cited the cases of Amoabimaa v. Badu (1956) 1 W.A.L.R. 227, W.A.C.A. and Fynn v. Kum (1957) 2 W.A.L.R.
289 in support of his contention that partition can take place only if the family had broken up.
In the situation of the two tribal groups in this case, the effect of the partition ordered by the High Court meant that each tribal group became as from the date of the decision the absolute owner of the portion granted to it because the aggregate of the interests of all the members of the two tribes in the communal land became exhaustive of the entire property. The plaintiffs chose to ask for this kind of relief from the court because they felt their legitimate rights of occupation were being usurped by the defendants and their agents and that made partnership between them in further management of the entire land no longer advantageous and convenient to members of the Djavier tribe.
It is beyond doubt that the disputed ancestral settlement is held under customary law, and the form of this holding being in the nature of joint ownership, the legal interests of the members of the two tribes were co-extensive, and therefore, it was not possible to sever the interests of one tribe without the concurrence of the other. Such being the position under customary law, the insistence by the Djavier tribe for partition without the consent of the Hervier tribe would seem to be against the general restrictions imposed by customary law and therefore not tenable. This is because the cardinal rule of the custom of such ownership is that the interests are not capable of being severed save with the concurrence of all those who are entitled. The central point in the appeal being the validity of the order for division made by the High Court, the origin of the court’s jurisdiction to entertain such an action in the first instance raised some important doubts. The early decisions on record show that in the past application for this kind of relief was not frequently brought before the judges. In Sarpong v. Amartey (1913) 2 Ren. 787, some attempt was made to consider whether it was possible for the divisional court to entertain a partition suit. The original action was laid in trespass against the head and certain individual members of a family who indulged in wilful acts of trespass and sabotage against the lawful exercise of rights of occupation enjoyed by other members of the family in relation to the family property. The divisional court was of the opinion that there could be no real opposition to the granting of such a relief. But in an administration suit entitled Vanderpuye v. Cudjoe (1915) K.F. 87 the court held that it could not go into the question of title raised to a landed property in a partition suit. What happened there was that an administratrix, having a joint interest in land with her children, mortgaged the property as her own. The mortgagees later forclosed, and the defendant purchased and claimed the entire property. As a result, the children brought a partition suit for their share of the property. [p.48] of [1972] 1 GLR 43 The different ways in which the early judges looked at the question relating to the power of the court to entertain an action affecting partition of communal or family property showed that there were still serious doubts about the exercise of the jurisdiction by the court in granting this relief in former days. But a survey of the decisions given in recent times affecting severance of family ties and consequent division of communal properties among members individually, tends to show that the approach of the courts to the question now is rather different from that to be found in earlier judgments, and this significant change shows a more flexible or elastic method of dealing with questions affecting division of joint property held under custom. Decisions in such cases as Amoabimaa v. Badu (1956) 1 W.A.L.R. 227, W.A. C.A. and Fynn v. Kum (1957) 2 W.A. L. R. 89 illustrate the tendency in the courts now to move away from strict adherence to the enforcement of the ancient restrictions imposed by customary law against partition of family or communal property. The paramount consideration in such cases has always been the convenience of all the parties who are entitled to own the property to be partitioned. In this particular appeal there was no evidence that the custom of the locality forbids partition as there was in the partition cases mentioned; such custom strictly applies to closely knit families. A case for partition is therefore in my view stronger in the circumstances of the two tribes in this case. Viewed in this way, there can be justification for the court’s exercise of its equitable jurisdiction in granting the relief of partition even when all the co-owners have not given their consent.
Counsel for the appellants cited the Amoabimaa case (supra) in support of his proposition that partition of family land can occur only if the family concerned has broken up into component parts. One important principle implicit in this decision is that it shows that lack of consent was no longer a bar to the granting of the relief, and that whenever severance of the ties that unite the several families into one unit can occur, partition of their common property becomes possible. The dispute in the case arose out of differences among various sections in the family, and this ultimately resulted in a claim by a member seeking a declaration of title to an aliquot portion of the family estate. This brought about a severance of the family ties and a division of their family property as well. This case was followed shortly by the Fante case of Fynn v. Kum (1957) 2 W.A.L.R. 289 decided by the then Land Court at Cape Coast. There the dispute was between two branches of the family, and the action was instituted by a member for a declaration of title to a portion of the family property which he claimed for himself. Okaikor v. Opare (1956) 1 W.A.L.R. 275, also decided that partition of family property is permissible under customary law. In this case the matter in dispute between members of the family was eventually referred to an arbitration which ordered a partition, and the High Court affirmed the decision of the arbitration. The action was instituted at the instance of a member of the family who insisted that he was entitled to the whole of the family house upon the death intestate of his brother. The [p.49] of [1972] 1 GLR 43 dispute was then referred to the arbitration which ordered that the rooms in the house should be divided among the members of the family.
The importance of these recent decisions in relation to partitioning of family property lies in the practical common-sense approach adopted by the courts in modifying the application of the strict rules of customary law, and the disappearance of the notion which was once held that family or communal property was not capable of being severed or partitioned. This liberal attitude may probably be the result of the pressure of commercial value of land now in this country. The key note in all these decisions is that the courts can grant partition in cases where (a) it is advantageous to the whole family and (b) the property itself is capable of being partitioned. This places some limitation both on the right of a joint-owner to ask for a partition, and the scope of the power to grant it. One advantage of partition over a sale of communal property is that the property which is partitioned does not pass out of the family to a stranger. In a partition there is only a change of ownership. Instead of communal or joint ownership there is now an individual ownership or control. In this respect, the order which the learned judge of the High Court was impelled to make by force of the evidence seems to be in accordance with what is the customary practice in the particular locality which does not partition. This is implied in the evidence of the chief of Sukpe which the judge also appeared to have considered before reaching his final conclusion. It is also clear from the recent decisions that partition will always be presumed against communal or joint ownership of the family, unless the party desiring partition supports his claim with sound reasons. It follows from this that the court will not order partition at the instance of one joint owner out of selfish motives or for reasons which are tenuous. In Fynn v. Kum (supra) it was held that mere dissatisfaction among members of a family is not enough ground to ask for a partition of family property or a severance
of ties. To be effective the conduct among the members of the family who desire partition must be such as to show sufficient good ground that a split in the family property among members is necessary or desirable. In the present appeal, the High Court in ordering a division of the communal land, must have considered that partition was convenient and advantageous to both tribes. It is also clear that where the property to be partitioned is according to its nature not capable of being divided, the court will not recommend partition as a means of solving the dispute. In this case the parties themselves have already shared the land in a manner which makes permanent division of it easy. Therefore having regard to the nature of the evidence led, the strife between the two tribal groups had reached such a proportion that continued partnership between them in further management or control of the land in dispute was no longer advantageous or in their own interests, and as such, partition was the only practicable means left for providing a suitable remedy or solution. In these circumstances, I am of the same opinion as the learned judge in the High Court, Ho, that a division of the land between the two tribes was inevitable. It was for these reasons that the appeal was dismissed. [p.50] of [1972] 1 GLR 43
JUDGMENT OF AZU CRABBE J.S.C.
I agree with the conclusion of Lassey J.A. that this appeal should be dismissed, and I wish to state my
reasons briefly. The plaintiffs’ claim was for an order for partition of the land which was the
subject-matter of the judgment of Coussey J. dated 22 November 1950 in the consolidated suits: Avafia Adabla and Kpoku Amekuodi v. Kabutey Obubuafo and Koklo Kisseh and Atsuvier Boni Kwashie for and on behalf of the Djavier tribe of Telfle v. Avafia Adabla and Kpoku Amekuordi for themselves and on behalf of the Hervier tribe of Sukpe. The real issue in that case, as Coussey J. discovered, was whether the land in dispute was the property of the Hervier tribe or of the Djavier tribe, or was jointly owned by the two tribes. Coussey J. found that the Herviers and Djaviers had a common origin, and that the two tribes owned the land jointly in the following manner:
“the Djaviers confining themselves to the land between the Ango Creek on the west on the Mafa Shuno and Jabetta Creeks, while the the Herviers’ occupation appears to have been mainly from the eastern banks of these Creeks eastward to the Volta River. ”Coussey J. further found that the Djaviers were firmly established on what was described as Tamlago land. In the present action the plaintiffs (the Djavier tribe) claim that the land which Coussey J. had adjudged that they owned jointly with the defendants (the Hervier tribe) should be so partitioned that they (the plaintiffs) might have as their exclusive property the area on which they had been firmly established, and the defendants might have that area on which they were also firmly established as found by the court. The grounds for the claim were that the defendants had in spite of the judgment of Coussey J. constantly disturbed and harrassed the plaintiffs in their occupation and use of the common land; and that the conduct of the defendants had made it impossible for the two tribes to live together in peace and harmony as joint-owners, and that only a partition of the land could save them from further harassment.
The defendants denied that they had ever interfered with the plaintiffs’ occupation, and further contended that native custom at Sukpe frowned upon partitioning of land, and that the plaintiffs had no cause of action. The learned trial judge, Prempeh J. (as he then was), thought, rightly in my view, that the onus was, therefore, on the defendants to show that such a custom existed. On this question of the onus of proof the learned trial judge said in Kisseh v. Adabla [1961] G.L.R. 440 at p. 444:
“. . . I am satisfied that they have completely failed to discharge that onus as I can find nothing in their evidence to show that any peculiar custom exists in Sukpe which prohibits, or is a taboo to, the partitioning of land between joint owners or owners in common or even as between or among relatives. ”The learned trial judge also found that the defendants by themselves and their people had been constantly interfering with the plaintiffs’ enjoyment [p.51] of [1972] 1 GLR 43 of the Tamlago land, and the enjoyment of those claiming under the plaintiffs. He then proceeded to say at p. 445: “I am satisfied further that no evidence of any peculiar custom had been shown to exist at Sukpe by reason of which an order for partitioning of this land cannot be made. I am further satisfied, consequent upon my finding of the aggressive attitude of the defendants’ people towards the plaintiffs’ people who are now joint owners or owners in common of the land, that if an order is not made to give each of the parties exclusive right to their possession of the land whereby they can maintain rights of trespass and other remedies at law, there can never be peace and tranquility on that land, and that serious consequences can be expected.” I think that there is ample evidence to support the findings of the learned trial judge. A claim for the partition of tribal or any communal land is, in my view, a matter for the discretion of the court, and unless it is shown that there is some specific customary rule that forbids partitioning, this court ought not to interfere where there had been a proper exercise of that discretion. In this case, I think that Prempeh J. exercised his discretion properly and that this appeal ought to be dismissed.
JUDGMENT OF SOWAH J.A.
I also agree with the conclusion.
DECISION
Appeal dismissed.
S.A.B.
