HIGH COURT, ACCRA
DATE: 10TH APRIL, 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Anto v. Mensah (1957) 3 W.A.L.R. 218
(2) Ntsin v. Ekutey and Others (1957) 3 W.A.L.R. 11
NATURE OF PROCEEDINGS
APPEAL from a judgment of a local court in a land case.
COUNSEL
E. N. Moore for B. J. da Rocha for the plaintiffs-appellants.
Yeboah (E. K. N. Olaga with him) for the defendants-respondents.
JUDGMENT OF OLLENNU J.
The land subject-matter of this appeal is situate at Christiansborg, Osu, and is identified as the site of an old market. The appellants, plaintiffs in the local court, are members of the Nii Lomo family of Christiansborg and claimed the land as portion of land of the said Nii Lomo family which had been granted to the first plaintiff by the said family. The defendants disputed the plaintiffs’ claim, and contended that the land formed part of land of Nii Lomotey family.
The local court dismissed the plaintiffs’ claim on a number of grounds; these are:
(1) the plaintiffs failed to prove how their family (Nii Lomo We) came to own the land;
[p.269] of [1962] 1 GLR 268
(2) a judgment of the Ga Native Court ‘B’ which is part of exhibit A relied upon by the plaintiff, was first of all vague, and secondly was not a certified copy, and therefore did not carry much weight;
(3) that an endorsement made by the Osu Mantse on a declaration made by the defendants’ family, the Nii Lomotey family, exhibit G conferred title to the land upon the defendants’ family;
(4) that Osu Mantse and his elders constituted the competent authority to make the said declaration because they know the boundaries of lands owned by all families of Osu; and
(5) that one Akwetey Jones said to be the head of the Lomo family had not been called to support the case of the plaintiffs.
The defendants admitted that the plaintiffs’ family, the Nii Lomo family of Osu own land at Osu in the vicinity of the land in dispute; in fact they alleged that a street divides this land from the land of the plaintiffs’ family. What they dispute is the contention of the plaintiffs that the land in dispute formed part of the plaintiffs’ family land. In such a case where there is no dispute that the plaintiffs own land, and the only issue is the extent of the land, there is no necessity for the plaintiffs to prove their root of title before they can succeed, because that is not in issue. The principle in such a case is precisely the same as in a case where it is apparent that title is not in issue, and that the true nature of a claim is trespass to land: Anto v. Mensah.1(1) The local court was therefore wrong in dismissing the plaintiffs’ case on the ground that they have failed to prove the root of title of their family the Nii Lomo family.
The observation made by the local court that the judgment exhibit A should not carry much weight is well-founded. A local court should not admit in evidence an uncertified copy of a judgment: Ntsin v. Ekutey and Others.2(2) But as shown in the statement which the local court magistrate recorded after he had delivered his judgment, the plaintiffs did tender the certified copy of that judgment to him on the day of the judgment, prior to the delivery of the judgment. He was at that stage bound to accept the certified copy and to give due consideration to it, even if its admission meant postponing the delivery of the judgment to a later date.
Evidently the local court magistrate did not read the judgment exhibit A with any degree of care due, no doubt, to the fact that at the date he was considering his judgment the only copy he had before him was the uncertified copy. If he had taken a little time to read it, he could not have said of it that it is vague. He would have realised without the slightest difficulty that that judgment of 1948 dealt specifically with the land now in dispute, the site of the old market at Osu, and that the Native Court ‘B’ declared that at that date it was the only piece of Lomo family land which had not been granted to any member of the family and not alienated to a stranger. But as the local court magistrate failed to understand that judgment he failed also to take notice of the evidence that the first plaintiff in the former case is the mother of the co-defendant,
[p.270] of [1962] 1 GLR 268
and he further failed to take into consideration the evidence on the record particularly that of the co-defendant that Adotey Quao also known as James Addo is one of persons through whom the defendants base their title to the land, and also that the said James Addo (Adotey Quao) was the first defendant in the suit of 1948 in which the judgment exhibit A was delivered.
If the local court magistrate had appreciated the significance of that judgment exhibit A in the case, he could not have come to the conclusion he came to in his judgment. On the contrary he would have felt himself compelled to the conclusion that the defendants are now estopped by that judgment from denying that the site of the old market is Nii Lomo family land. The co-defendant tried to wriggle out of the difficulties by saying that there were two Nii Lomos; but the magistrate did not accept that evidence.
Again the local court magistrate erred in holding that the Osu Mantse and his elders know the boundaries of the lands of each family at Osu, and that the Osu Mantse and his elders are the accredited authority to declare lands which belong to particular family. The assertion by the local court that the Osu Mantse and his elders know the boundaries of lands owned by each family in Christiansborg is rather sweeping. It is impossible for the chief and the immediate elders of his stool to possess such detailed knowledge of private properties of subjects. That statement of the local court magistrate when read along with the evidence of D.W.1, the Osiahene of Christiansborg, that “I know that the old market site belonged to Nii Lomotey and Nii Lomo, I do not know their boundary”, it would be seen that that finding of the local court magistrate is not practicable.
Again the finding of the local court that one Akwetey Jones was the head of the Nii Lomo family, was based solely upon the evidence of D.W.1, the Osiahene. No other witness mentioned it. It was never suggested to the plaintiffs that the said Akwetey Jones was the head of their family, the Nii Lomo family. Of course, if D.W.1 who gave that evidence had proved himself to be a reliable witness there could be something to be said for that finding of the local court. But should a court believe a witness who in the one breath said that the old market site, the land in dispute, belonged to Nii Lomo and Nii Lomotey and that he did not know the boundary of the two men on that land, then in the other breath changed the story and said “the Amentra Street divided Nii Lomo and Nii Lomotey lands, Nii Lomo’s on the eastern side and Nii Lomotey is on the west.” Here it must be pointed out that it is common ground that the site of the old market abuts the western side of Amentra Street. It is dangerous to rely upon the evidence of a witness like that.
Again the local court appears to have attached special weight to exhibit G the declaration of their title made by the defendants’ family and the endorsement of the Osu Mantse thereon. The true position is that the said exhibit G is a unilateral act of the Lomotey family, and is not binding on anyone except themselves. The endorsement of the Osu Mantse did not improve the ex parte declaration in any way.
It would be a most dangerous thing to hold that a person can acquire title to land by that process. That amounts to saying that if A made a private declaration that he is the owner of Blackacre, and he got the chief of the area to endorse that declaration, then A automatically became owner of the said Blackacre even though B is the owner thereof.
[p.271] of [1962] 1 GLR 268
Again it should be pointed out that while the local court magistrate attached such great significance to the exhibit G, the ex parte declaration and the Osu Mantse’s endorsement thereon, he completely forgot all about the extracts from the minutes of the meeting of the Accra Town Council held on the 13th February 1928, a public document, wherein it is reported that the then Osu Mantse had objected to the council selling the old market site to one Mr. Hammond, reminding the council at that time that the site belonged to the Nii Lomo family, and that it was from the head of the said family that the council originally obtained permission to occupy the same and to build a market on it, and that the family was paid compensation for their leave to the council to occupy that land.
The various points discussed above reveal that the plaintiffs discharged the onus which laid upon them to establish their title by preponderance of admissible and credible evidence, and that the local court erred in dismissing their claim. For that reason I would allow the appeal.
The appeal is allowed, the judgment of the local court is set aside including the order as to costs. Any costs paid to be refunded. For that judgment the following is substituted: there will be judgment for the plaintiff and co-plaintiff against the defendant and co-defendant for declaration of title to the land as claimed, and £G25 damages for trespass.
The appellants will have their costs in this court fixed at 20 guineas and their costs in the local court agreed at £G16.
DECISION
Appeal allowed.
