SUPREME COURT, ACCRA
DATE: 9TH APRIL, 1962
BEFORE: KORSAH C.J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Land Court, Cape Coast, which had declared the plaintiff owner of the land in dispute, found the defendant liable to pay tolls to the plaintiff and referred the matter to the Cape Coast Municipal Court to ascertain the amount due. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
S. Baidoo for the appellant.
J.V.M. Ntow for the respondent.
JUDGMENT OF VAN LARE J.S.C.
Van Lare, J.S.C. delivered the judgment of the court. The plaintiff lost in this action which he instituted in the year 1957 before the Cape Coast Municipal Court against “the defendant to assign his reasons for failing to account to the plaintiff as ebusuapayin of the family of Nana Tuaa of the Ntwaa-Abadzi family of Cape Coast for tolls collected by the defendant since fifteen years ago as caretaker for the plaintiff “. The action relates to the Abakan village land alongside the Cape Coast—Elmina Road and raises the question of title and ownership of the said land. The plaintiff claims that his great-grand-uncle Kobina Tuaa of Cape Coast settled at Amamima village and acquired the area in dispute together with its adjoining area known as Kusipra by clearing the virgin forest. His case is that by an agreement between the respective predecessors of the parties, the predecessor of the defendant became the caretaker of the said land and had been paying two-thirds tolls collected in
[p.239] of [1962] 1 GLR 238
respect of fishing canoes operating on the land to the plaintiff’s family. The defendant is the present Odikro of Amamima village which is to the north of Kusipra, and claims that the said Abakam village, on the sea-shore, forms the southern portion of his stool lands. He denies paying tolls to the plaintiff’s family in respect of the said land as such, but says that like his predecessor, he has been paying a fixed sum of £G5 annually to the plaintiff’s predecessor as head and representative of the Bentsir No. 1 Asafu Company of Cape Coast and not as head of his family. The defendant’s case is that this sum of £G5 was an agreed and fixed sum and not representing two-thirds portion of tolls collected from Abakam village and was paid on behalf of members of the Bentsir No. 1 Asafu Company Cape Coast resident on the defendant’s stool lands as their contribution to assist the annual performance of the fetish festival of the said Asafu Company of which the plaintiff’s predecessor was head. It is, however, quite plain on the evidence that this action arose only because the defendant defaulted in the annual payments of the amount due to the plaintiff during the preceding years, and not because he had refused to pay and he has in fact made a payment of £G40 to the plaintiff since commencement of this action.
The trial municipal court did not consider the evidence adduced by the plaintiff in support of title sufficient upon which to declare him owner of the land in dispute and entered judgment for the defendant.
On appeal to the Land Court at Cape Coast, the learned judge reversed the finding of the municipal court holding that the trial court failed to appreciate the importance of a case between the representative of the plaintiff and the defendant before the Paramount Chief’s Tribunal of Oguaa (Cape Coast) in the year 1945 in which the defendant submitted to judgment in a claim for £G15 described as amandzi, due and owing to the estate of the plaintiff’s predecessor, one Kofi Amuah, who was a successor of Nana Tuaa of the Ntwaa-Abadzi family of Cape Coast. The claim was in respect of the said Abakam village land and represented arrears for three years, that is to say,
1942–1945, at £G5 a year amandzi. The learned judge rightly in our view held that this piece of evidence estopped the defendant from now laying claim to the Abakam village land, and therefore declared the family which the plaintiff represents in this action to be owners of the land in dispute.
The judge then ordered the defendant to account to the plaintiff for “tolls properly and fairly due and payable” and referred the matter to the municipal court to take evidence and determine the same on the basis of plaintiff’s alleged claim of two-thirds of the total tolls collected on canoes on the Abakam village land.
We are not satisfied that the evidence clearly establishes that according to the agreement between the predecessors of the parties the plaintiff’s family is entitled to two-thirds of tolls in respect of canoes on the land, as the plaintiff’s own evidence makes it quite clear that in the past even where canoe tolls that could be collected amounted to as much as £G120 a year, the defendant’s predecessor paid not more than £G5 a year to the plaintiff’s predecessor without challenge. We are however satisfied that this annual sum of £G5 was paid to the plaintiff’s predecessor in respect of the family land of which plaintiff is now head, and that the defendant’s contention that he and his predecessor have been paying to plaintiff’s predecessor as Supi of the No.1 Asafu Company of Cape Coast and not as head of the plaintiff’s family is untenable.
[p.240] of [1962] 1 GLR 238
As the learned judge of the Land Court, Cape Coast, relied on the 1945 proceedings and judgment (exhibit C) as an estoppel against the defendant asserting claim of ownership to the land, he ought to have equally considered that the plaintiff is also estopped from now putting up a claim to two-thirds of tolls collected from canoes on the beach, because in 1945, the claim against the defendant was for only £G5 a year, for three years, i.e. 1942–1945, being arrears of what was due and payable. We notice further that that claim suggested a fixed sum, amandzi, i.e. recognition fee, which that word in the Fante language imports and it is described as a ground rent in exhibit C. The plaintiff is, therefore, in our view also estopped from putting up a different story as to the nature of what the defendant has to pay annually to the plaintiff-family. It is apparent on the evidence that had the defendant not
defaulted in the regular annual payments of £G5 this action would not have been taken in 1957. The learned judge of the Land Court therefore erred in failing to consider the question of estoppel against the plaintiff as to the nature of his claim against the defendant and should not have referred the matter to the municipal court to find what may be due and payable to the plaintiff as such amount is easily ascertainable on the evidence and which is £G5 a year, and the date of last payment is also clear and which is the year 1945.
The arithmetic is simple. At the commencement of the action in 1957, the arrears due and payable to the plaintiff-family by the defendant cover twelve years (i.e. 1945 to 1957) the amount then due being £G60 (i.e. £G5 x 12). The plaintiff has admitted that £G40 has been paid to him since the action; this therefore leaves a balance of £G20 outstanding. The amount due and payable by the defendant since 1957 (i.e. 1957–62 = five years) is £G25. The amount now due and payable by the defendant to plaintiff is therefore £G45.
For the reasons given we dismiss the appeal with respect to the declaration of the Land Court as to title and ownership of the Abakam village land, and are satisfied on the evidence that the defendant is liable on the account as we have found, to pay to the plaintiff the sum of £G45 being amandzi now due, covering the current year, from him in respect of the said plaintiff’s family land. We enter judgment for the plaintiff for the said sum accordingly.
In view of the above we vary the judgment of the Land Court by deleting therefrom, the following portion: “. . . and that defendant-respondent is liable to account for tolls collected in respect of the said land as caretaker thereof and to pay two-thirds share of the amount found due to the plaintiff. The matter is hereby remitted to the municipal court to take evidence and determine the amount of tolls properly and fairly due and payable unless having regard to the evidence that there has already been some attempt to settle, the parties can come to a final settlement as to the amount payable.”
Subject to the extent indicated in this judgment the appeal is dismissed; but the respondent is entitled to only one-half of his costs in this court, he having partially failed in his claim.
DECISION
Judgment of Land Court varied.
