SUPREME COURT, ACCRA
DATE: 19TH FEBRUARY, 1962
BEFORE: VAN LARE, ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.
CASES REFERRED TO
(1) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18
(2) Ababio v. Quartey (1916) P.C. ‘74-’28, 40
(3) Sokpui II v. Agbozo III (1951) 13 W.A.C.A. 241
(4) Re Land at Nkwantamang; Owusu v. Manche of Labadi, Divisional Court, February 9, 1932 (unreported)
NATURE OF PROCEEDINGS
APPEAL from a judgment of Acolatse J. in the Land Court, Accra, delivered on the 22nd December, 1958 (unreported), dismissing a claim by the plaintiffs-appellants for recovery of possession of and damages for trespass to, certain land in Accra. The facts, which are set out in the headnote are taken from the judgment of Adumua-Bossman, J.S.C.
[p.89] of [1962] 1 GLR 86
COUNSEL
E. Akufo-Addo for the appellants.
H. V. Franklin with him E. N. P. Sowah for the first respondents.
Koi Larbi for the second and third respondents.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
[His lordship narrated the facts as set out in the headnote and continued:] From the pleadings there emerged as the main issues between the appellants and the first and second respondents (the original defendants and the registered trustees) the following:
(1) whether the appellants were entitled, or had any right to sue in the representative capacity in which they sued;
(2) whether the first respondents’ admitted entry on a portion of the land was or was not unlawful; and whether in making entry they did the acts complained of in paragraph 5 of the statement of claim, namely, laid waste farms;
(3) whether or not the appellants had usufructuary rights over the land according to native customary law, and Whether, if they had, any alientation without their consent was not void.
As between the appellants and the third respondent, i.e. the Onamrokor Adain family the main issue was whether the third respondent was entitled or not to grant to the first respondents the right of ingress and egress along the narrow strip of land used as a road across the Apenkwa land.
In respect of the first issue as to the appellants’ right to sue, the learned trial judge’s conclusions were expressed in the following terms: “I am not satisfied with the case for the plaintiffs of their authority to bring this action for themselves and on behalf of the Apenkwa Community. There had been no conclusive proof of the plaintiffs’ authority. The evidence is conclusive that not all of the Christian inhabitants of Apenkwa are the followers of the plaintiffs in bringing this action. The onus fell on the plaintiffs to prove adequately their authority to sue in this action in a representative capacity, and I find as a fact that the plaintiffs failed to satisfy the court that they have been duly authorised. It is for me to consider the evidence which had been tendered in that regard, and I formed the conclusion after hearing the evidence of third party that the plaintiffs have not the full authority of the unhabitants of Apenkwa. The first plaintiff failed to prove that he is the head of the Apenkwa community. The evidence showed clearly that the head is usually elected by the Christian community and then he is presented to the church and if he is approved of by the church he is given blessing and installed as head of the community. The first plaintiff had admitted that he had not been installed as yet as head. Therefore hold that he is not the head of the Christian Community of Apenkwa since he has not been installed by the custom and regulations of the Christian congregation and inhabitants of Apenkwa … and therefore has no locus standi in this action as a plaintiff against the defendants; and they the plaintiffs, are not the proper persons to sue. The second plaintiff gave no evidence.”
The appellants complain against the conclusions ex-pressed as above, and contend in ground 2 (a) of their grounds of appeal that the fact that there was no official head of the Apenkwa community does not prevent the members of the community from electing the plaintiffs to sue on their behalf. in other words the trial judge should have considered whether authority to sue was expressly and specifically conferred by the community upon the appellants (the appellants gave evidence of this) and not limited his consideration of the issue of authority to sue to simply the kind of authority derivable from the holding of the traditional office of head of a community, which the first appellant claimed to hold.
[p.90] of [1962] 1 GLR 86
There is no doubt that the the phraseology used in the latter part of the learned judge’s observations above set out, in which some emphasis is laid on the evidence available, including the first appellant’s own admission that the usual ceremonies or rites of installation of a head which takes place in the Apenkwa church were not performed for first appellant, does seem to give one the impression that the trial judge concerned himself with considering only authorisation emanating from the appointment to and tenure of the office of head of the community. But, as counsel, Mr. Sowah for the first respondents points out, that was due to the way in which the appellants in their statement of claim pleaded only the fact of their alleged tenure of their respective offices of head and elder of the community, but did not further plead or disclose this additional allegation that they were specifically appointed and empowered to sue at a special meeting. Nevertheless, I do not think Mr. Sowah’s further submission can be sustained, to the effect that the appellants cannot rely on this further or alternative right to sue derived from the appointment at a special meeting, because the same was not expressly pleaded and issue was therefore not joined in respect of it. The more accurate legal position, it seems to me, is that the fact not having been pleaded, counsel for the respondents should have taken every care to exclude evidence of it, in which case, there being no evidence on record of it, necessarily the appellants could not rely on it. But as counsel for the respondents did not object, and thereby admitted the relevant evidence, the court was bound to consider the case put forward by that evidence. So in the case of Abowaba v. Adeshina,1(1) Verity Ag. P. explained the legal position as follows: “There are certain types of evidence, such as hearsay and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal, but in our opinion, the case is different where evidence, which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the Judge. In our opinion the evidence as to waiver of forfeiture in this case falls within the latter class and the trial Judge was bound to take it into consideration . . . “
The principle of the above cited case is in complete accord and fully consistent with the principle stated by the Privy Council in Ababio v. Quartey2(2) where Buckmaster, L.C. stated: “If there was any capacity disclosed in the course of the action which would have enabled the plaintiff to have maintained his suit, he ought not to have been non-suited; but the Court ought to have allowed all the necessary amendments that were required for the purpose of settling the real controversy between the parties.”
It falls therefore to consider how far the evidence adduced towards establishing that alleged expressly conferred authority is reasonably convincing.
The first appellant under cross-examination testified that the authority was given at a meeting held sometime in October, 1956, his material evidence being as follows: “I brought this action in the name of the inhabitants of Apenkwa … I am representing about 400 of the inhabitants of Apenkwa all of whom are members of the church. The population of Apenkwa is about 400 and they deputed me to take this action at a meeting. I have no written authority. The meeting was held in 1956 during the month of October. No minutes were taken at this meeting.
[p.91] of [1962] 1 GLR 86
I cannot remember the date of the month. All the inhabitants of Apenkwa, including the Session members of Apenkwa [attended]. I cannot say if Christian Holm attended the meeting as the people were many … W. C. Dormon was at the meeting on that day as well as Sarah Korkor and Cadesia. Dormon was not present when the authority to sue was given me. He left the meeting at a certain stage.”
But immediately after he had testified as above giving the impression of a meeting at which he was present when authority was given him to sue on behalf of the community, when further pressed under cross-examination, he testified as follows:
“I was not present when the inhabitants gave me the authority to sue. This was at the second meeting. I was at Sekondi when the second meeting was held at which I was deputed to take this action. S. O. Doku informed me of the authority which the inhabitants gave me to sue. I had returned from Sekondi for the week-end. I used to travel to Apenkwa every week-end from Sekondi as headman … I was authorised to sue at the second meeting. J. B. Yeboah was one of the inhabitants who gave me the authority to sue. All the inhabitants gave me the authority to sue.”
As to this evidence of the first appellant, it seems to me most remarkable and almost beyond comprehension, that if it be the truth that it was at a second meeting at which he was not present that he was given authority to sue and he was informed of this on his arrival from Sekondi, that he should have given the first piece of evidence at all, namely that he was given authority at a meeting in October, 1956 . Secondly, Yeboah an inhabitant of some importance whom he alleged was among those who gave him the authority to sue was called as one of his Witnesses, but his evidence was decisively destructive of this claim to an authority given at a meeting expressly convened. That
witness Yeboah’s position, it is admitted, was that of “spokesman for the inhabitants”, at any rate at the important meeting which the Moderator and other members of the Synod Committee held with the members of the Apenkwa church on the 15th November, 1956, about leasing of a portion of the land to the first respondent. His testimony as to the appellants’ right to sue was the following: “Mr. Yartey is the present head of Apenkwa Community. Stephen Oko is an elder of the community.
The plaintiffs brought this action because they are the head and elder (respectively) of Apenkwa.” Nowhere in his evidence does this witness say anything whatsoever about any meeting at which authority was expressly conferred on the appellants to go and institute proceedings on behalf of the community against the first respondents. It is true that another witness, Sampson Oku Doku, who described himself as Chairman of Apenkwa Emergency Committee and who was mentioned by the first appellant as giving him the information that he had been authorised at a meeting held in his absence to institute proceedings against the first respondents, gave evidence purporting to confirm the first appellant’s evidence. That witness Mr. Doku’s version was: “Mr. Yartey instructed me to convene a meeting of the inhabitants to discuss what steps to take about the projected lease. I convened the meeting in front of the chapel. The inhabitants all agreed to take this action against the lease to the defendants [first respondents.] The plaintiffs were appointed to take this action. Mr. Yartey was not at the meeting. Oko was present.”
There are, however, incredible features about this testimony; firstly, it is difficult to understand that the first appellant if he had directed a meeting to be specialty convened concerning this proposed lease to the first respondents, would go away and leave the meeting to be held in his
[p.92] of [1962] 1 GLR 86
absence; secondly, the allegation that all the inhabitants agreed to take this action is disproved by Yeboah’s evidence, even apart from evidence adduced on behalf of the second respondents (the registered trustees); thirdly, it stands alone, uncorroborated by the evidence of any other person alleged to have been present at that special meeting, when it ought to have been confirmed at least by the second appellant, Stephen Oko, also said to have been present at that meeting. The case of the appellants on this allegation of a specific authority to bring this action which was given at a special meeting, was that the whole community of Apenkwa met and gave the authority. As I have already set out, the first appellant’s evidence in regard to the matter was: “All the inhabitants gave me the authority to sue”, and the evidence of his supporting witness Sampson Oku Doku was: “The inhabitants all agreed to take this action against the lease to the defendants [first respondents]”.
Having set up such a case. of an authority to sue conferred by the whole community, the appellants became bound to prove or establish it strictly, as was held in a similar case, Chief Sokpui II v. Chief Agbozo III3(3) in which the decision of the Anlo Native Court “B” was accepted and affirmed by the West African Court of Appeal, Verity Ag. P., who delivered the judgment of the Court, observing as follows: “The first question that the Native Court had to determine was whether or not the plaintiffs were duly authorised to sue in a representative capacity. The Native Court considered that question and for reasons which they gave in their judgment came to the conclusion that the plaintiffs were not duly authorised … The manner in which persons can be authorised in those circumstances is a matter which I think must be peculiarly within the province of a Native Court to determine, and for myself, I am quite prepared to accept the decision of the Native Court.”
The material part of the decision of the native court on the issue of the authority of the plaintiffs to sue in that case was in the following terms: “Be it noted according to plaintiffs’ case that those two witnesses (1st and 2nd) were some of the people Chief Agbozo the defendant herein was driving from the land and on whose behalf this action is instituted; but here we are confronted with the evidence of these two witnesses that the summons issued by the plaintiffs was without their knowledge and consent and therefore not in order. It is therefore sufficient for this Native Court to hold that this action was instituted by the plaintiffs on behalf of the general community of Dzelukope without the knowledge, consent and authority of the said community and therefore fails.”
If therefore, in our instant case, the appellants were bound to prove authority conferred by the whole community, then it is clear they failed signally to do this. The case of the registered trustees, the respondents, was that there was no meeting of the whole community at any time at which authority to sue was given as alleged, and that the village was in fact almost equally divided on the question of the lease to the first respondents. Reverend Theophilus Laryea, the second witness for the second respondents, the minister in charge of the pastoral district at the material time said this: “My estimation about the lease was that half the members of the Apenkwa Community opposed the grant and the other half were in favour of the grant.” This is substantially confirmed by the admission of the appellant’s own first witness, Yeboah, as follows: “The Synod Committee and Session are on one side and some members of Apenkwa Community on another side upon the question of the lease.”
It would seem to follow that the whole community could not have concurred with the appellants as to instituting an action. Moreover, reference has already been made to other evidence of this important
[p.93] of [1962] 1 GLR 86
witness of the appellants themselves, which is decisively in favour of the second respondents, that no meeting of the whole community was at any time held at which authority to sue was conferred upon the appellants, and it seems only necessary to refer to that evidence of the witness Yeboah again at this stage that: “Plaintiffs brought this action because they are the head and elder of Apenkwa” but not, it would seem to follow, because they were given any authority at any meeting to bring the action.
Although, therefore, it would seem to be a legitimate criticism as implied in the appellants’ second ground of appeal, and as expressly argued, that the learned judge should not have confined himself to considering only the question of authorisation emanating from the appellants’ claim to be the holders of certain traditional offices in Apenkwa, but should have considered also their evidence of having been specifically authorised to sue at a special meeting of the community, my own anxious and careful examination of this alternative case of authority conferred at a meeting, satisfies me that the evidence was of the weakest possible nature, was decisively discredited, and failed completely to establish the alleged authority conferred by the whole community.
Turning now to the second main issue, namely whether or not the Apenkwa Community as such had the right or interest as possessory or usufructuary tenants in the whole parcel of Apenkwa land which the appellants made the subject-matter of the action, the learned trial judge expressed his conclusions in the following words:
“I do not think that case for plaintiffs is maintainable on the claim for recovery of possession . . . The plaintiffs admitted the ownership of the land in the Mission, but they claimed that their consent to any alienation of the land was necessary . . . The effective occupation and holding by the plaintiffs of the portion of the land in use by them is not affected. The area leased was vacant land and under the immediate control of the registered trustees.”
It will be observed, therefore, that although the appellants sued about the whole area of Apenkwa land, the learned judge found as a fact that it is not the whole area of land which is in dispute, that the portion effectively occupied and in use for habitation by the community is not affected, and that the dispute relates only to a portion which is “vacant land under the immediate control of the registered trustees”. In respect of that area in dispute he held that the appellants’ action is not maintainable.
Although the appellants in their pleadings alleged that they were in occupation of this disputed portion and had farms thereon which were destroyed by the first respondents, the original defendants, at the date or time of the latter’s entry and alleged trespass which gave rise to this action, the allegations were not established, and learned counsel for the appellants does not quarrel with that particular finding of fact that the portion in dispute was vacant land at the material time, i.e. the time of the acts which gave rise to this action. Indeed, in the face of the evidence of the appellants’ own third witness, Mr. Okoe Aryee, and the plan (exhibit J) which he tendered, it is difficult to see how there could be any quarrel with the learned judge’s finding on this aspect of the case.
On the other hand it is agreed that the area in dispute was a farming area of the inhabitants of Apenkwa, and learned counsel for the appellants has directed attention to the admission of the Synod clerk,
[p.94] of [1962] 1 GLR 86
Mr. Kwansa, who represented and gave evidence for the registered trustees, when he said: “I do not dispute that the people have been farming on the whole land since their settlement for their livelihood . . . There are no farms on the area leased. There are isolated Mango trees … It is possible there might have been some farming on the site. The site looks like a shifting cultivation.”
On that premise therefore, namely, that the area in dispute had been an area where the members of the Apenkwa Community had been farming for their livelihood since about the date of the acquisition of the land in 1890, the question arises whether that admitted fact is sufficient to establish the appellants’ case of a usufructuary interest acquired by the community as a whole in that area.
Before answering that question it seems necessary to consider firstly whether the evidence adduced on behalf of the appellants discloses any ground at all for the alleged communal interest in the whole parcel of land claimed on behalf of the Apenkwa Community as such. On turning to consider the evidence I find that any relevant evidence as to the acquisition of, and settlement on, the whole parcel of land, was given by the first appellant only, and it was the following: “I know the history of Apenkwa as told me by my father who died about six years ago… My father and his father originally came from Osu and settled at a village behind Achimota. They and others were
converted to Christianity by the Basel Mission. They found it difficult to live side by side with their fellow countrymen who were heathens and left the village one by one to settle at APenkwa. Two of my ancestors went to Onamrokor family to negotiate for the Apenkwa land for the Basel Mission. They were Mensah Din and Yeboah. They were among the first of the Christians from Achimota village to go on the land. They were among the first Christians who were settled on the land by the Basel Mission. in course of time a small township was created as other Christians from Achimota and other villages came to settle at Apenkwa… There are a number of buildings in Apenkwa that comprise the village . . . The members of the community use the land for habitation and farming.”
But in testifying, as the first appellant does, after admitting that the title to the whole parcel of land was acquired by the Basel Mission, that his ancestors and others who became the early Christian converts “were settled” on the land by the Basel Mission, he does not go on further to explain and elucidate the manner and nature of the settlement, and how the same developed to become or constitute the communal usufructuary ownership or title to the whole parcel of land, which is now claimed. The appellants’ able counsel arguing before us, stated: “It is one thing for a stool to found a village, and the villagers go on to farm the neighbouring land; there they are mere licensees; but the case here is that the whole land was intended for the use of the inhabitants of Apenkwa. . . . Our case is that we were settled on the Apenkwa land by the church, and the church cannot dispossess us without our consent.”
Let it be granted, for argument’s sake, that the Mission intended the land for the use of the inhabitants. But a man intending another to have the use and benefit of property, may nonetheless retain control and management and grant the person he intends to benefit only a licence to use, as in the case of the stool and its subjects, which learned counsel himself instanced. Therefore it seems to me to be necessary for the appellants, claiming as they are doing that the Mission effected some form of settlement which vested them with usufructuary title to the whole parcel of land, to have gone to the trouble of explaining the nature or manner of the settlement, particularly as the appellants, as plaintiffs had the burden of proof upon themselves. For example, it might well have been explained that the Basel Mission authorities or representatives,
[p.95] of [1962] 1 GLR 86
at some time or other after the acquisition of the land, convened a meeting of the whole, or even just the elders only, of the early Christian converts whom they intended to benefit, and formally handed over the parcel of land to them with the declaration that they were to have possession, control, management, and use of it for themselves, their descendants, and such other persons as they may admit to membership of their group, to assist them to live the Christian way of life which they came to live on the land. If possession, control, and management, of the parcel of land had been so declared, or made to be vested in, the elders for the villagers as a whole then undoubtedly the possessory or usufructuary right and interest of the community as a whole in the land which is now claimed would be beyond question.
The first appellant indeed gave some evidence which at the first blush suggested something of that nature, i.,e., control of the land being vested in the elders of the community, when he testified as follows: “Any young man or woman who desires to build a house, he or she gets a plot allocated to him or her by the elders, and the catechist-in-charge would witness the grant. I mean the elders of Apenkwa grant the land to persons of Apenkwa for building a house. We do not grant to an one outside Apenkwa except those who come to live among us as Christians and not to any person who wants land for commercial buildings.”
This evidence, however, was decisively discredited and utterly destroyed not only by evidence adduced on behalf of the registered trustees, (the respondents) but also by admissions contained in documents emanating from the leaders (the Presbyters) of the Apenkwa Community, including the first appellant himself. This discrediting evidence established conclusively that control and management of the whole parcel of land have at all times remained in, and been exercised by, the Mission through its agent on the spot, a council or committee of the Apenkwa church known as the “Session”. By the constitution or rules of the parent church (see exhibit 13) the Session is the governing council or committee of the local church and is constituted by (a) the reverend minister in charge of the pastoral district in which Apenkwa is included (i.e. the minister of the Adabraka church, a non resident of Apenkwa); (b) the catechist in charge of the Apenkwa church or congregation, and (c) the Presbyters, the majority of whom are not even residents of Apenkwa but rather of neighbouring villages like Dome, Akweteyman, Agbofu, etc., whose residents join Apenkwa residents to worship in the Apeakwa church. It is this council or committee which, on the incontrovertible evidence, including admissions contained in a document exhibit 1 to which the first appellant himself was as a signatory, has all along represented the registered trustees on the spot to deal with applications for allotment of Plots of land for building or for permission to use any of it. Exhibit 1 was a letter written on the 13th April, 1956, before the dispute arose and addressed to the Synod clerk concerning the subjects (a) granting of Apenkwa lands; (b) permission to quarry and (c) a plot required for a public place of convenience. It was signed by the catechist and presbyters of Apenkwa church, including the first appellant. The whole tenor of it decisively refutes the first appellant’s evidence suggesting that control of the Apenkwa land for the purpose of making grants of plots for building was in the elders of Apenkwa, but it seems only necessary to refer to a passage in it, as follows:
“Hitherto the procedure adopted is that when an Apenkwa citizen approaches the Session for a site for building the Session reserves the right to grant such land without referring to the District Pastor; but when the applicant
[p.96] of [1962] 1 GLR 86
comes from outside Apenkwa, it is the duty of the Apenkwa Session to refer it to the district pastor. But when the trustees visited Apenkwa last October, 1955, they ruled that both Apenkwa citizens and those outside Apenkwa are to pass through the local Session to the district pastor who in turn is to approach the trustees whose duty is to come to the spot and grant and allocate the site to the applicant. The Session find this ruling concerning Apenkwa citizens inconvenient, in that they are our own children staying on the station land with us and we grant them plots only according to merit. Therefore we humbly ask that we shall be allowed to co-operate with the district pastor as the last authority in granting them land for building. But in the case of people coming from outside Apenkwa, we abide by the ruling of the trustees.”
Standing by itself the letter exhibit 1 was damaging enough to the appellants’ case; but when regard is had to the reply to it which the presbyters received from the Synod, to which they appeared to have reconciled themselves and in which they acquiesced, it seems difficult to understand how the appellants thereafter came to conceive the idea of disputing the right of the registered trustees to deal with the portion of the land now in dispute. The significant terms of the reply (exhibit 19) were the following:
“The Session—Presbyterian Church—Apenkwa—Through Rev. T. T. Laryea—Accra.
Dear Sir, At the Synod Committee meetings field on 17th, 18th and 19th April, 1956, your petition was carefully discussed, and I have been instructed to inform you:
(1) That the decision of the Synod Committee Executive which was communicated to you by the Moderator and Synod Clerk remains unchanged. No land can be granted to any person for building, farming, or quarrying, without the expressed approval of the Synod Committee who are the accredited Trustees of all Church properties.
(2) That all applications for permission to use Church lands should be addressed to the Synod Committee through the District Pastor.
(3) That the application of the Municipal Council for a piece of land to construct a place of convenience was approved by the Synod Committee, and the Apenkwa Session in consultation with Municipal Authorities and the District Pastor should choose a suitable site for the purpose.”
It is deserving of notice that the district pastor, Reverend Laryea, giving evidence for the second respondents, testified in respect of the contents of exhibit 19 that: “It is not a new directive but an old rule of the church” which means, as I understand it, that the procedure outlined in exhibit 19, has been the established procedure for obtaining a portion of the land for use from the earliest time. This position appears to have been accepted by the fact that the terms of the letter were not objected to but rather acquiesced in, and the procedure outlined would appear to have been in operation for sometime before the dispute broke out leading to the institution of this action. In the face therefore of the undoubted fact that control and management of the whole parcel of land has been at all times in the Mission or its representatives and that every occupier has had to obtain a grant or permission from the Mission, I am satisfied there is no ground whatsoever for this communal right and interest which is claimed in the land.
Turning finally to deal specifically with the question whether the admitted fact that members of the community have been farming on the area in dispute since about the 1890’s has operated to create a usufructuary interest in the land in the community, I am satisfied that the farming, which is admitted, has not created any interest in the community or even in any individual farmer.
[p.97] of [1962] 1 GLR 86
In a similar case, an acquisition case entitled In Re Land at Nkwantamang, Christian Boi Owusu and Another v. Manche of Labadi,4(4) in which the inhabitants of the village of Nkwantamang (along the Accra-Dodowah Road) who had been farming the land surrounding the village for a long number of years claimed to have carved out an estate in the land out of the stool title of the Labadi stool, Deane, C.J., dealing with the matter, stated the material facts about the farming as follows: “The fact is that such cultivation as is carried on for purposes of producing food is intermittent; a patch of land is cultivated, and as soon as the crop is reaped, the farmer moves on to some other spot; there is nothing permanent about the relationship between man and farm to link the man with the land so that one can say the land is in his possession except temporarily.”
The learned Chief Justice proceeded in due course to an enunciation of principles as follows: “Now there is no doubt that the Courts acting on equitable grounds have recognised estates as having been carved out of stool lands. When persons, subjects of the stool have settled down upon stool lands and have for a long period of time so identified themselves with the lands as to become well-recognised as the owners, the Courts, in spite of the fact that the Statutes of Limitations have no application between Natives, so that mere occupation alone gives no right as against the owner, have always held that such occupation, if coupled with circumstances which raise an equity in favour of the occupier, should enure to the advantage of the occupier as against any one who seeks to oust him from such occupation. But it is to be noted, what is indeed clear upon principle, that mere occupation alone for a time however long raises no equity, although it may serve as evidence of an agreement by the party claiming to abandon or release a right. It is only where the original owner has so acted as to induce the occupier to alter his
position on the reasonable faith that he has released or abandoned his claim, that any equitable right accrues to the occupier, and apart from such circumstances, occupation win be immaterial.”
He applied the principles and ultimately decided as follows: “In as much as the Claimants have only proved with regard to this area that their family have had houses at Nkwantanang and Bawaleshie within it for a long period of time, and have been recognised as the leading people in these settlements and fathers of the Community, but that with regard to the surrounding lands they have never brought them into any effective and exclusive occupation but have only exercised rights of intermittent farming over them in common with other Labadi men, then I say that they have established no title by prolonged occupation.”
It seems to me that the principles enunciated in that case are applicable to the facts of this case and that the evidence as to farming on the portion of land in dispute did not establish the communal usufructuary interest claimed in the land in dispute.
In my view therefore the learned judge’s conclusion on the main issues in the case are amply supported by the evidence and his judgment sufficiently justified and I would therefore dismiss the appeal.
DECISION
Appeal dismissed.
