ASIBEY III AND OTHERS v. AYISI [1972] 1 GLR 102
COURT OF APPEAL
Date: 31 JULY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.
CASES REFERRED TO
(1) Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.
(2) Appiah v. Baabu, Court of Appeal, 15 May 1967, unreported.
(3) Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102.
(4) Afriyie II v. Tete [1964] G.L.R. 90, S.C.
(5) Addai v. Donkor [1972] 1 G.L.R. 209, C.A.
(6) Eastcheap Dried Fruit Co. v. N.V. Gebroeders Catz’ Handelsvereeniging [1962] 1 Lloyd’s Rep.
283. [p.106] of [1972] 1 GLR 102
(7) In re Brook, Delcomyn and Badart (1864) 16 C.B. (N.S.) 403;143 E.R. 1184; 33 L.J.C.P. 246.
(8) Ewia v. Erziah (1927) F.C. ‘26 – 29, 280.
(9) Ababio v. Tutu [1962] 1 G.L.R. 489, S.C. (10) Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2) [1942] A.C. 601; [1942] 1 All E.R. 657; 111 L.J.K.B. 418; 167 L.T. 74; 58 T.L.R. 240; 86 S.J. 294, H.L. (11) Poku v. Frimpong [1972] 1 G.L.R. 230, C.A. (12) Metropolitan Asylum District v. Hill (1881) 6 App.Cas. 193; 50 L.J.Q.B. 353; 44 L.T. 653; 45 J.P. 664; 29 W.R. 617, H.L.
(13) Hitchcock v. Way(1837) 6Ad.& El. 943; 112 E.R. 360; 6 L.J.K.B. 215.
NATURE OF PROCEEDINGS
APPEAL against the decision of the High Court that the plaintiff was entitled to compensation as well as damages for trespass under the Farm Lands (Protection) Act, 1962. The facts are adequately set out in the judgment of Azu Crabbe J.S.C.
COUNSEL
Harold Darko for the second, fourth, fifth, seventh, eighth, tenth, eleventh, thirteenth, fourteenth,
fifteenth, sixteenth, nineteenth, twenty-first, twenty-second and twenty-third appellants. Jonathan Arthur for the third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-fourth and thirty-fifth appellants.
Ahenkorah for the co-appellant. Heward-Mills for the respondent.
JUDGMENT OF AZU CRABBE J.S.C
The respondent in this appeal (hereinafter referred to as the plaintiff) who described himself as “head and representative of a family company of Larteh claiming certain lands near Miriwasan on Banso stool land” brought an action against the appellants (herein after referred to variously as defendants and by other designations) in the High Court, Kumasi, claiming by his writ of summons:
(1) an order of perpetual injunction restraining the defendants from any further interference with the
rights of the plaintiff on a large tract of land, delineated on a plan attached to the writ, and
(2) damages for trespass. The first defendant was the Kokofuhene representing the Kokofu stool, and the second and third defendants were sub-chiefs of the Kokofu state, being odikros of Miriwasan and Dwendwenase respectively, and the fourth, fifth, sixth to twenty-third and twenty-fourth defendants were farmers claiming title through the second defendant, and the twenty-fifth to thirty-fifth defendants were also farmers claiming through the third defendant. The twenty-third and thirty-third defendants claimed title through the Banso stool. The nineteenth defendant [p.107] of [1972] 1 GLR 102 alone relies on a customary oral grant from the Kyempo stool. Exhibit Z is the plan showing the land in dispute, and the farms cultivated by the various defendants, and drawn by a licensed surveyor, Christopher Tawiah Edifor, pursuant to an order by the trial judge.
The case for the plaintiff was briefly that on 29 April 1927, as head and representative of a family –
company of Larteh people (known as the Syndicate of Akwapim Farmers), he bought a piece of land from the late Bansohene, Nana Kwaku Kyei, for a total price of £G871 (¢1,742.00). The sale was by native custom, and after the guaha custom had been performed to perfect the purchase, the plaintiff made a part-payment of £G501 (¢1,002.00). It was alleged that, in the absence of the Bansohene, Nana Kwaku Kyei, the money was paid to the Krontihene and the queenmother. Thereupon, a document on the land (exhibit A) was prepared at the instance of the late Nana Kwaku Kyei. The plaintiff paid the balance due on 18 March 1928 and obtained a receipt (exhibit B) from the late Nana Kwaku Kyei himself. The plaintiff and his people established cottages scattered all over the land, and made cocoa and foodstuff farms on the land. About five years after the plaintiff and his people had entered into possession of the land, the second defendant challenged their right to be on the land. On 18 September 1952, the second defendant sued the Bansohene, Odikro Kwame Yamoah, the successor of the late Nana Kwaku Kyei, claiming a wide stretch of land which included the piece of land sold to the plaintiff and his people. The first defendant, claiming to be the overlord of the land in dispute, joined the suit as co-plaintiff. The action was tried by the Asantehene’s Court A, which, on 31 December 1953, gave judgment in favour of the Bansohene, Nana Kwame Yamoah. The first and second defendants appealed both to the Land Court, Kumasi, and the old Supreme Court in Accra, but they lost in each court The plaintiff claimed that, inspite of these judgments the first defendant and the second defendant, as well as the third defendant, had persistently interfered with his right of ownership and possession of the land in dispute. And, in four paragraphs of his statement of claim, the plaintiff alleged specifically as follows:
“(11) The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third and twenty-fourth defendants have been put on the portion of the land by the third defendant and by the second defendant and they have been cultivating farms on the land to the detriment of the plaintiff and his company. (12) Similarly the twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty- second, thirty-third, thirty-fourth and thirty-fifth defendants have been put on the portion of the land by the third defendant and are cultivating farms on the lands to the detriment of the plaintiff and his company.
[p.108] of [1972] 1 GLR 102 (13) The plaintiff and his company have tried to abate the trespass by the defendants but all their efforts have been in vain because immediately the plaintiff and his company drive the defendants from one portion of the land they go to another portion of the land and start cultivating new farms. (14) The plaintiff and his company say that the entry by the defendants on the piece or parcel of land claimed by the plaintiff and his company is wrongful.”The occupant of the Banso stool at the time of the commencement of this action, Nana Owusu Afriyie, was, upon his own application, joined as a co-defendant. His case was that the plaintiff and his people were given land by the Banso stool to farm on the abusa system, and that in 1939 the plaintiff and his people sought the assistance of the Asantehene to have the terms of their abusa holding modified. He further alleged that at an arbitration held at the Asantehene’s Palace it was held that the plaintiff and his people were bound to honour the terms of their holding. The co-defendant finally contended that the plaintiff and his people were estopped from prosecuting their claim, and therefore, they were not entitled to the reliefs they were praying for.
In his judgment reported in [1964] G.L.R. 695, the learned trial judge classified the defendants under the following heads:
(a) The Miriwasan defendants, i.e. the second, fourth, fifth, sixth, seventh, eighth, nineth, tenth,
eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, twenty-first
and twenty-second defendants claiming title from the odikro of Miriwasam. (b) The Dwendwenase defendants, i.e. the twentieth, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty- eighth, twenty- ninth, thirtieth, thirty-first, thirty-second and thirty-fourth defendants relying on a grant from the Dwendwenase stool.
(c) The Banso defendants, ie. the twenty-third and thirty-third defendants.
(d) The nineteenth defendant, who alone obtained his title from the Kyempo stool.
(e) The Kokofu stool, to which the stools of Miriwasan. Dwendwenase and Kyempo were subservient.
Pleadings were filed on behalf of all the defendants, and in identifying the issues joined between the
parties the learned trial judge said at p.698: “. . . 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 [p.109] of [1972] 1 GLR 102 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 learned trial judge continued at the same page that:
“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 Dwendwenase 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.”
With regard to the Miriwasan defendants it became obvious that if it was established that there was a
valid customary sale of the land in 1927 to the plaintiff and his people, then it followed that the
Miriwasan defendants were precluded by the judgments of Asantehene’s Court A, the Land Court,
Kumasi, and the old Supreme Court, from contesting the plaintiff’s title to the land in dispute.
Appreciating this obvious difficulty, the legal advisers of these defendants amended their statement of defence by pleading in the alternative that, “even if the land on which they are belongs to the plaintiff or co-defendant, by the provisions of Act 107 they cannot be dispossessed of their farms.” And the learned trial judge rightly observed, the only serious issue, which was ultimately submitted for his determination, as between the plaintiff and the Miriwasan defendants, was whether or not they were entitled to be protected under the Farm Lands (Protection) Act, 1962 (Act 107).
As regards the Dwendwenase defendants, the plaintiff’s claim depended upon the correctness of the
Banso boundary in relation to the land claimed by the Dwendwenase stool. The real dispute between the Banso stool and the Dwendwenase stool was as to the ownership of the land between their two
boundaries. The Dwendwenase stool admitted that they put the Dwendwenase defendants on the land, and maintained that the land belonged to them, and that the Banso stool had no right to alienate that land to the plaintiff. The Dwendwenase stool further maintained that neither the plaintiff, nor any of his people, ever complained to the stool that the land on which they put the strangers belonged to them. Both the Banso stool and the plaintiff and his people were agreed that the correct boundary between the stools of Banso and Dwendwenase was that shown edged brown on the plan, exhibit Z. The defence of the Banso defendants was that they acquired their farms by oral customary grants made to them by the Banso stool. If it was, therefore, decided that the plaintiff and his people acquired the [p.110] of [1972] 1 GLR 102 disputed land by purchase from the Banso stool, then the only issue for determination was whether they, the Banso defendants, acquired their lands in good faith.
The nineteenth defendant claimed in his defence that he obtained the land on which he farmed from the Kyempo stool. It was a virgin forest, and was given to him on abusa system. At the commencement of this action he said, he had lived on the land for fifteen years and had made a cottage with three houses on it. It was common ground that the Kyempo stool had a boundary with the Banso stool, and the issue for determination at the trial was whether the farms of the nineteenth defendant had been cultivated on Banso stool land as claimed by the plaintiff.
The writ and statement of claim do not clearly disclose the plaintiff’s reasons for suing the first defendant, but these became apparent in the evidence of the Kokofuhene, Nana Osei Asibey III. He claimed that Kyempo, Dwendwenase and Miriwasan lands belong to the Kokofu stool, and that the boundaries between these stools were demarcated by the Kokofu stool. Under cross-examination by counsel for the plaintiff, Mr. Heward-Mills, the Kokofuhene said: “I say Kyempo, Dwendwenase and Miriwasan lands belong to me. Nothing can properly be done about them without my prior consent. I agree that according to custom, I am the proper person to sue and be sued aboutthese lands… I put the Miriwasan people there before the litigation. The fact is that they once lived in that in that area and fought a battle. They lost and fled. In their absence the Asantehene and I took over their portion including Kyempo. I took Kyempo, Dwendwenase and Miriwasan, the Asantehene took over Tokwai, Bankame and Banso. I agree that I put Miriwasan where they are… If Dwendwenasehene put somebody on the land, I would deem it to have been done by myself. I deny that I procured any trespass. ”For the purpose of convenience, I will, in this appeal, adopt the heads of classification of the defendants by the learned trial judge, and will now proceed to consider whether the learned trial judge’s conclusions were justified both on the facts and in law.
The fundamental, and indeed, the crucial issue in this case is whether the plaintiff and his people acquired the land in dispute from the Banso stool by outright sale, or under the customary abusa system of farming.
On this issue the learned trial judge made definite findings at p. 701 as follows:
“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.”[p.111] of [1972] 1 GLR 102 The learned trial judge further found that the co-defendant’s plea of estoppel per rem judicatam against the plaintiff failed, and he accordingly dismissed the counterclaim of the co-defendant.
In dealing with the case against the second defendant and the other Miriwasan defendants, the learned trial judge, after recounting the events and circumstances which led to their being settled on the disputed land by the second defendant observed at p. 706 as follows: “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” The learned trial judge at p. 707 sub-classified these Miriwasan defendants into three groups:
(a) those who gave evidence, namely, the fourteenth, twenty-first, fifth, seventh, eighteenth, fourth,
twenty-second and thirteenth defendants; (b) those who did not give evidence, namely, the second, sixth, eleventh and twelfth defendants; (c) those who were not served with the writ, namely, the eighth, tenth, fifteenth, sixteenth and seventeenth defendants.
With regard to the defendants in group (a) the learned trial judge made the following findings at p. 707: “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.” As to the defendants in group (b), the learned trial judge said: “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.”
In view of the fact that the defendants in group (c) were not served with the plaintiff’s writ, the learned trial judge did not make findings against any of them.
Next, the learned trial judge disposed of the case against the third defendant shortly at p. 704 as follows:“Inasmuch as the Dwendwenase stool admitted making a grant of land and putting the Dwendwenase 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.” And, accordingly, he dismissed the third defendant’s counterclaim against the plaintiff and his syndicate. The learned trial judge then considered the case against the Dwendwenase defendants individually. So far as
[p.112] of [1972] 1 GLR 102 the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth and twenty-ninth defendants were concerned, he made a positive finding that they were not aware that the land granted to them by Nana Akumia of Dwendwenase belonged to the Banso stool, or that it had been sold to the plaintiff and his syndicate seventeen years previously by the Banso stool. Consequently, he held that each of the Dwendwenase defendants, namely, the twenty-fourth, twenty-fifth. twenty-seventh, twenty-eighth and twenty-nineth acquired his land in good faith and was therefore protected under section 2 (1) of the Farm Lands (Protection) Act, 1962 (Act 107). He also found, on separate facts, that the thirtieth Dwendwenase defendant acquired his land in good faith, and that he had, in all respects, brought himself within the protection of the Act. The thirty-first, thirty-fourth and thirty-fifth Dwendwenase defendants gave no evidence, though they were served with the plaintiff’s writ, and accordingly, the learned trial judge held that as against these defendants the plaintiff was entitled to succeed on his claim. But he dismissed the claim against the thirty-second Dwendwenase defendant because there was no evidence that the plaintiff’s writ was served upon him.
On the evidence, the learned trial judge said that he could find no basis for the plaintiff’s claim against the Kokofu stool. He observed at p. 709 that, “The fact that the two wrongdoing stools, Dwendwenase and Miriwasan are under it cannot by itself be a basis of liability.” He rejected the allegation that the Kokofuhene authorised or instigated any of the trespasses, and, accordingly, he held that the plaintiff’s claim against the Kokofuhene failed. After evaluating the evidence and making his various findings, the learned trial judge proceeded to perform his second function; the quantification of the damages and compensation to which the plaintiff was entitled. Regarding the principle to be applied in this process, the learned trial judge said at pp. 709-710: “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 [p.113] of [1972] 1 GLR 102
latter remedy has 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. ”But in cases where in his view both remedies were available against a defendant, the learned trial judge preferred to make one lump assessment. And in the performance of his task the learned trial judge took two matters into consideration: (a) the extent of the disputed land, and (b) the length of time the plaintiff and his people had been wrongfully kept out of the land. He however found no guidance or assistance in the provisions of subsection (3) of section 2 of the Act, which lays down that the compensation shall not exceed twice the consideration which the farmer paid for acquiring the title which turns out to be defective. Be that as it may, the learned trial judge said at p. 710 “In my judgment, it would be wrong and unjust to deny the plaintiff compensation only on this account.” He continued: “I have therefore on 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, 1962 (L.I. 186), which the Minister responsible for Lands has made pursuant to the Rents (Stabilisation) Act, 1962 (Act 109). 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 this estimate. 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.”
The learned trial judge awarded damages against the Banso stool on the ground that the stool authorised the twenty-third and thirty-third defendants to trespass on the plaintiff’s land for the purpose of farming, the stool well-knowing, or ought to have known, that it had sold its entire interest in the disputed land to the plaintiff and his people.
There was some error by duplication in the plaintiff’s writ; the person called Asare was sued both as the twelfth and the twentieth defendant and Budu of Miriwasan was also sued as the fifth and tenth
[p.114] of [1972] 1 GLR 102 defendants. Against these defendants the learned trial judge awarded damages once only. The damages and compensation awarded in the case were conveniently tabulated by the learned trial judge at p.711 towards the end of his judgment. The table is in the main body of the judgment and it gives at a glance the number of the defendants, the acreage of land upon which each defendant committed the trespass, compensation plus damages, damages only, and general remarks. The learned trial judge entered judgment for the plaintiff and his people in terms of the table, together with costs. Counsel’s costs were assessed at 350 guineas (¢735.00), and other costs, including survey fees and witnesses’ attendances, were to be taxed. The total costs were to be paid in accordance with the order of the court. This was followed by other consequential orders, with which we are not concerned in this appeal. In my judgment, the result of this appeal turns upon the following: first, the soundness of the learned trial judge’s findings on the crucial issue namely, whether the disputed land was acquired by the plaintiff from the Banso stool by purchase or under an abusa system; secondly, the correctness of the interpretation of section 2 of Act 107, and its application to the particular facts of each case; thirdly, the correctness of the principles applied by the learned trial judge in the assessment of the damages and compensation in each case; and, fourthly, the correctness and reasonableness or otherwise of the cost awarded and their apportionment among the various defendants.
The issue whether the plaintiff acquired the disputed land by purchase or under an abusa system was one of fact for the trial judge, who, after hearing the two rival stories and considering the documentary evidence, accepted the plaintiff’s version. This court has stated in numerous cases that when a decision upon an issue depends upon the credibility of witnesses who have given evidence at the trial, and the question arises which witness is to be believed rather than another, and that question turns upon manner and demeanour, it will not interfere with a finding on that issue by the trial judge. But, if there are other circumstances existing which, in the opinion of the court, go to credibility of witnesses, it may differ from the trial judge. In this appeal, Mr. Ahenkorah, who represents the co-defendant, has stated several grounds upon which this court ought, as he alleges, to upset the findings of the learned trial judge on the fundamental issue. But in my view, the learned trial judge’s conclusion is amply supported by the evidence, and none of these grounds by itself, or in their cumulative effect, constitutes circumstances which will justify this court in disturbing the findings of the learned trial judge on this fundamental issue of fact. Consequently, I hold that the learn trial judge was right in rejecting the co-defendant’s counterclaim.
The next important matter which affects all the Miriwasan defendants and the Dwendwenase defendants is the proper construction of subsections (1) and (2) of section 2 of the Farm Lands (Protection) Act, 1962 [p.115] of [1972] 1 GLR 102 (Act 107). Subsection (1) vests a discretion in the court to confer valid title on a farmer who had, in good faith, at any time after 31 December 1940, and before the commencement of the Act, acquired any land by customary law or otherwise in a prescribed area for the purposes of farming and had begun farming on that land within eight years from the date of such acquisition, notwithstanding that the title originally acquired by the farmer has been adjudged to be defective. It seems clear that any farmer who acquired his land before 1941 is not entitled to protection under the Act. The question whether a farmer had acquired his title “in good faith” is one of fact for the trial judge: see Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. and Appiah v. Baabu, Court of Appeal, 15 May 1967, unreported. The “good faith” must relate to the time of the acquisition and not to what happened afterwards: see Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102, S.C. and Afriyie II v. Tete [1964] G.L.R. 90, S.C. In construing subsection (3) of the Act the learned trial judge accepted the contention by counsel for the plaintiff that, in addition to any compensation that may be awarded against a defendant whose title has been found by the court to be defective, the plaintiff was entitled also to his common law redress by way of damages for the invasion of his right. Before us Mr. Heward-Mills, counsel for the plaintiff, has naturally stoutly supported the learned trial judge’s interpretation and he has submitted that at common law a land-owner has several remedies against a trespasser. The land-owner may bring an action for ejectment and claim the following reliefs: (a) an order for possession, (b) an order for perpetual injunction, and (c) a claim for damages. Mr. Heward- Mills argued that the provisions of section 2 (2) of the Act affect only one of the land-owner’s common law reliefs, the relief for the recovery of possession.
He urged that this is a case to which the presumption against changes in the common law applies, and he cited the following passage from Maxwell on Interpretation of Statutes (12th ed.), p. 116:
“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are `fairly evenly balanced,’ that interpretation should be chosen which involves the least alteration of the existing law.” [p.116] of [1972] 1 GLR 102 Mr. Heward-Mills also referred us to another passage in Maxwell (supra), where it is stated at p. 251 that: “Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts.” With all due respect to the learned trial judge, I think that the argument that, under subsection (3) of section 2 of the Act, the plaintiff is entitled to compensation as well as ordinary damages is fallacious, and I reject it for the same reasons elaborated by Archer J.A. in his judgment which he is about to read and in which I entirely concur. It sounds incongruous for the court in one breath to legalise an acquisition of land ab initio, and then in the same breath to condemn the occupier of that land in damages for trespass. In my opinion, this is a case in which the statute is plainly intended to alter the course of the common law, and the plaintiff is, accordingly, entitled to the only remedy specified by the statute.
The plaintiff’s claim against all the defendants, except the first defendant and the co-defendant, depended to a large extent, on the application of section 2 of the Farm Lands (Protection) Act, 1962 (Act 107), to the facts adduced at the trial.
Notice of appeal was filed on the joint behalf of the third, twentieth, twenty-fourth to thirty-second,
thirty-fourth and thirty-fifth defendants. The learned trial judge made no adverse findings against the twentieth defendant, and neither did he award any compensation plus damages nor damages only against him. There is, therefore, no basis for his appeal. Mr. Jonathan Arthur who appeared for the rest of these defendants, informed the court that for the purposes of his argument, he would divide these appellants into three groups:
(1) The twenty-fourth to the thirtieth appellants.
(2) The thirty-first, thirty-fourth and thirty-fifth appellants.
(3) The third appellant. It appears clear from the judgment that the twenty-fourth to the thirtieth defendants were given protection under the Act, but Mr. Jonathan Arthur argued that the learned trial judge was wrong in assessing the damages because under the Act, if the trial judge found bona fides in the person held to be trespassing, the compensation to be paid to the original owner should not be more than twice the value of the land in the aggregate. He submitted that there was no evidence of the purchase price which should form the basis of the assessment of compensation. He further submitted that under the Act the learned trial judge should do no more than award compensation and that he was wrong in lumping compensation and damages together. And for this submission counsel relied on the case of Afriyie II v. Tete (supra), but I think thatthat case is distinguishable from the present case. One important point which Mr. Arthur made was that in the assessment of the damages the learned trial judge relied heavily on the views of persons [p.117] of [1972] 1 GLR 102 who were not called to give evidence. Counsel submitted that section 68 of the Courts Act, 1960 (C.A. 9), now repealed, contemplated the calling of witnesses to be examined in court, and that it was wrong for the learned trial judge to deal with the matter administratively. This last complaint against the judgment is a common ground of appeal in the case of almost all the appellants, and I propose to deal with this point separately later in this judgment.
I have already said earlier in this judgment that the learned trial judge was wrong in awarding damages in addition to compensation. In calculating the compensation which is the only remedy of a plaintiff on the refusal of the court to make an order for possession, the court, contrary to what the learned trial judge said, is given some clear guidance in the proviso to subsection (3) which reads as follows: “Provided that the aggregate of any such sum ordered to be paid under this section shall not exceed an amount equal to twice the value of the consideration paid at the date of the purported acquisition.” The words “the value of the consideration paid at the date of the purported acquisition” show, in my view, that in calculating the compensation the court will have to consider, first, the price at which the farmer, whose title has been adjudged defective, but upon whom the court has conferred valid title, purchased the land in dispute. For the court to perform this function, there must be some evidence of the value of the consideration paid by the farmer upon whom the benefit of subsection (2) is being conferred. There was no such evidence in this case. The power of the court to make an order for compensation is discretionary, for the order can only be made where the court considers that the order conferring valid title on the farmer would cause hardship and injustice. The exercise of a discretion by a judge can always be attacked if it can be shown that there are no materials upon which the discretion can be exercised. In this case the learned trial judge found that each defendant obtained his grant free of charge. But, as the learned trial judge himself said, it would be wrong and unjust to deny the plaintiff compensation only on that ground. And in his anxiety to do justice, the learned trial judge suo motu, and in the absence of the parties, sought assistance from officials of the Lands Department, who did not give evidence at the trial, as to what would be fair compensation per acre for uncultivated forest land. He was then referred to the Rents (Cocoa Farms) Regulations, 1962 (L.I. 186), made by the Minister responsible for Lands pursuant to the Rents (Stabilization) Act, 1962, (Act 109), and, in his own words at p. 710: “I was advised that in order to determine a fair compensation per acre of agricultural land, the rental of five shillings per acre will have to be capitalised.” (The emphasis is mine.) Again he said: “Adopting a return of six percent 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.” (The emphasis is mine.) The learned trial judge then proceeded to assess the compensation and damages in respect of the [p.118] of [1972] 1 GLR 102 defendants to whom he had extended protection under the Act. With all due respect to the learned trial judge, I think that his approach to this problem was wrong. In the first place, in both civil and criminal cases, the common law rule is that a judge may, for the elucidation of the truth, call and examine any witness himself. Such a witness cannot be cross-examined by the parties as of right, but where material evidence is given against either party, the judge should give leave to that party to cross-examine the witness. In a civil case, in particular, such a witness can only be called with the consent of the parties. I still hold the view, which I expressed in the recent case of Addai v. Donkor [1972] 1 G.L.R. 209 at p. 228, C.A., that this common law rule is reproduced in section 68 of the Courts Act, 1960 (C.A. 9). It follows, therefore, in my opinion, that the learned trial judge erred in law when, in calculating the compensation, he purported to act on the advice of persons who were not called to give evidence in court.
It is contrary to the universal principle of justice that after the hearing had closed, the judge should
consult other persons or receive fresh evidence in the absence of the parties: see Eastcheap Dried Fruit Co. v. N.V. Gebroeders Catz’ Handelsvereeniging [1962] 1 Lloyd’s Rep. 283. As Erle C.J. said In re Brook, Delcomyn and Badart (1864) 16 C.B. (N.S.) 403 at p. 416: “It is one of the first principles in the administration of justice, that the tribunal which is to decide must hear both sides and give both an opportunity of hearing the evidence upon which the decision is to turn.” (The emphasis is mine.)
In the second place, the Rents (Cocoa Farms) Regulations, 1962 (L.I. 186), were only prima facie proof of the facts stated therein, so that it was incumbent on the learned trial judge to give leave to counsel for the parties to lead such evidence as was available to them to rebut the facts stated in the regulations: see Ewia v. Erziah (1927) F.C. ‘26-’29, 280 at p. 282; and also Ababio V. Tutu [1962] 1 G.L.R. 489, S.C. And finally, the Act itself has stipulated the maximum compensation to be awarded and the learned trial judge was, therefore, not entitled to exceed that limit. With respect, I think that the Rents (Cocoa Farms) Regulations, 1962 (L.I. 186), are irrelevant in the computation of compensation pursuant to the proviso to subsection (3).
Where the court below has acted on a wrong principle of law in assessing damages or compensation that is usually a sufficient ground for the appellate court to interfere with the assessment. Another ground for interference is where the judge of the court below has taken into consideration matters which he ought not to have considered. There is no doubt, in my mind, that these two grounds exist in this case and that the global assessment of the damages and compensation was in each case erroneous, and I would set it aside. I do not intend to express a concluded opinion on the question of compensation at this stage, because later in this judgment, I shall have to consider the proper remedy of the plaintiff under subsection (2). [p.119] of [1972] 1 GLR 102 With regard to the appeal by the thirty-first, thirty-fourth and thirty-fifth defendants, Mr. Jonathan Arthur conceded that the learned trial judge was right in his conclusions and he therefore, abandoned their appeals. Mr. Arthur also conceded that the finding of fact by the learned trial judge that the plaintiff purchased the disputed land was unimpeachable, and he stated that the appeal by the third defendant was unarguable. I would therefore dismiss the appeals by the third, thirty-first, thirty-fourth and thirty-fifth defendants on the main issue.
The late Mr. Harold Darko appeared as counsel for the second, fourth, fifth, seventh, thirteenth,
fourteenth, eighteenth, twenty-first and twenty-second defendants. The only ground of the original
grounds of appeal contained in the notice of appeal filed on behalf of these defendants and argued by their counsel reads as follows: “The learned judge misdirected himself when, in making the order against `Miriwasan defendants,’ he considered their case together as a single unit, instead of considering each defendant’s case on its merits. Had he done so, he would certainly have found that the knowledge of the fifth defendant is not necessarily the knowledge of all the Miriwasan defendants, nor indeed, are her statements evidence against the other defendants. ”The appeal by the seventh and eighteenth defendants was withdrawn, and must therefore be dismissed.
Mr. Harold Darko also conceded that the fifth defendant acted in bad faith and, accordingly, I would
dismiss his appeal. Counsel expressed his agreement with the learned trial judge that generally the only issue for determination between the plaintiff and the Miriwasan defendants was whether the Miriwasan defendants were protected under Act 107. He, however, contended that the learned trial judge was wrong in rejecting their plea of good faith. He argued that the knowledge of the fifth defendant ought not to be imputed to the other Miriwasan defendants, and that the finding of the learned trial judge that the knowledge of the fifth defendant knocked the bottom off the case for the Miriwasan defendants was notwarranted. He further argued that there was evidence by the Miriwasan defendants that they were not aware of the rights of strangers, until after they had settled on the land. There was also evidence that the Miriwasan defendants did not go on the land at the same time. For my part, I find no merit in this argument. Commenting on the conduct of the Miriwasan defendants, the learned trial judge observed at p. 707: “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.” The question whether these defendants acquired their farms in good faith was one of fact for the learned trial judge and, in my opinion, there is ample evidence to justify the impression he formed of these defendants and the conclusions he arrived at. The appeals by the second, fourth, [p.120] of [1972] 1 GLR 102 thirteenth, fourteenth, twenty-first and twenty-second defendants must therefore also fail. In the case of the first defendant, Mr. Heward-Mills has urged upon this court to vary the learned trial judge’s finding that the Kokofuhene, i.e. the first defendant, had done nothing to make him liable to the plaintiff. Counsel referred us to certain pieces of evidence to justify his argument but, on the whole, I think that the learned trial judge’s view was right and it must be upheld. There can be no doubt that the Kokofu stool, represented by the first defendant, is privy to the Miriwasan and Dwendwenase stools, and judgments binding on these subordinate stools may constitute estoppel per rem judicatam against the Kokofu stool. A privy cannot however be dragged to court merely because the person to whom he is privy has been made a defendant in a suit, unless the privy has himself done some positive wrongful act which has injured the plaintiff’s interest. I think that the statement by the learned trial judge that the fact that the two wrong-doing stools are under the Kokofu stool could not be the basis of liability is substantially correct, and that his judgment in respect of the Kokofuhene, the first defendant, ought not to be interfered with.
I now return to the defendants against whom the learned trial judge erroneously made lump sum awards, representing compensation and damages combined in favour of the plaintiff. I have already expressed the view that the method of assessment of these awards not only violated certain common law principles, but also was contrary to provisions of the Act. But rule 8 (1) of the Supreme Court Rules, 1962 (L.I. 218), which are the relevant rules still governing procedure in this court, however, provides that: “All appeals shall be by way of rehearing …” As Lord Wright also said in Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2) [1942] A.C. 601 at p . 616-617, H.L. an appeal is a rehearing by the court with regard to all the questions involved in the action including the question what damages ought to be awarded. Where the appellate court decides to interfere with the trial judge’s award, it is at liberty to substitute its own assessment.
Two important questions involved in this appeal are: (1) the proper exercise by the trial court of the
powers contained in section 2 (2) and (3) of the Farm Lands (Protection) Act, 1962; and (2) the
assessment of the damages for trespass. Rule 32 of the Supreme Court Rules, 1962, (L.I. 218), describes the powers of this court in civil appeals in these terms:
“The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, withstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. ”[p.121] of [1972] 1 GLR 102 The preamble to Act 107 clearly shows that the object of the Farm Lands (Protection) Act, 1962, is to protect farmers whose titles to land are found to be defective. Section 2 (2) and (3) of the Act state as follows: [His lordship here read the provisions of the section as set out in the headnote and continued:] In section 5 of the Act, “possession order” is defined as “an order requiring the delivery up of possession of land or setting aside a purchase or acquisition of land or making a declaration of title or otherwise in defeasance of title to land.”
It is a cardinal rule in the interpretation of statutes that construction is to be made of all the parts together and not of one part only by itself. I think that the learned trial judge found no assistance in subsection (3), because he purported to construe that subsection in isolation, when he should have considered it along with subsection (2). The powers conferred by the two subsections are discretionary. If the court in a claim for recovery of possession comes to the conclusion that the farmer did not acquire a valid title to the land upon which he is farming, then, provided the farmer had led evidence to satisfy the requirements of section 1 of the Act, the court is vested with the discretion to make one of two orders. Depending on the balance of hardship and injustice to the parties, the court may make an order either (a) for possession in favour of the person entitled to the land, or (b) that the acquisition of the land by the farmer shall be deemed for all purposes to have operated to confer on him the title to the land in dispute. Where the court makes an order as in (b), it will then consider, again depending upon the balance of hardship and injustice, the desirability of awarding monetary compensation to the party who was the original owner of the land. The total amount of compensation ordered to be paid should not be more than double the value of consideration paid at the date of the purported acquisition. Where the court makes an order as in (a) above, it means that it is not satisfied that the farmer is entitled to the protection provided by the Act, and the farmer loses the land.
What the court is required to do under subsection (2) is, first, to compare the balance of hardship and injustice as between a refusal of an order for possession and the making of an order for possession; and, secondly, to exercise its discretion in making an order for payment of compensation to the person who, on balance, will suffer hardship and injustice resulting from the order made in pursuance of subsection (2). In my opinion, “hardship” in this context would comprehend the detrimental effect of the order upon the parties concerned, whether financial, personal or otherwise. And “injustice” means that which is not in accord with one’s sense of fairness. This court will be slow to interfere with the decision of a trial judge on the balance of hardship and injustice, since these are eminently questions of fact. But to succeed, the appellant must show that the trial judge misdirected himself on a question of law or that he based his judgment on some finding of fact of which there was practically no evidence.
[p.122] of [1972] 1 GLR 102 In this present case there was clear evidence that the plaintiff and his people bought the whole land in dispute for the sum of £G871 (¢1,742.00). There was also evidence that none of the Miriwasan and the Dwendwenase defendants paid a pesewa as consideration for his grant. In these circumstances, if an order for possession was refused and the defective titles of the deserving defendants were validated, it would mean that the true owners of the land would lose their lands and would get no compensation. It is impossible for the true owners of the land to get compensation, because the value of the consideration paid by the defendants at the date of the purported acquisition was nil. In such a situation the true owners would suffer substantial hardship by the deprivation of their lands and, indeed, it would be manifestly unjust that the defendants, upon whom valid titles had been conferred, should be allowed to keep the lands which they had acquired from the plaintiff and his people without paying anything for it. I am of the opinion that had the learned trial judge construed subsections (2) and (3) together, he would have concluded that the justice of the case demanded that an order for recovery of possession should be made in favour of the plaintiff. Therefore, by virtue of rule 32 of the Supreme Court Rules, 1962, I would (1) make an order for recovery of possession in favour of the plaintiff against the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth and thirtieth defendants and (2) fix the damages recoverable from these defendants for their trespass.
The thirty-fourth and thirty-fifth defendants have also appealed against the damages awarded against them. As a general rule this court will not interfere with the fixation of damages by a trial judge unless, as I have already said, it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts or had, for those or other reasons made a wholly erroneous estimate of the damages suffered. But there is also the principle that even if the award had been assessed upon a wrong principle of law, the court will not interfere with the amount where it is of the view that the trial judge had awarded the right amount, although for the wrong reasons: see Mayne & McGregor on Damages (12th ed.), para. 1027, p.860. Although in fixing the damages in this case the learned judge erred on a principle of law, I think that,having regard to the acreage of land which the trespassers took from the plaintiff and his people, the learned trial judge’s assessment of the damages in each case was not so high as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. I would not, therefore, interfere with the learned trial judge’s awards.
Next, having set aside the award of compensation cum damages, and made an order for recovery of
possession, this court should therefore make its own assessment of damages recoverable from the
twenty-fourth to thirtieth defendants. In doing this, the court will also have to
[p.123] of [1972] 1 GLR 102 take into consideration the following factors: (a) the acreage of the land upon which trespass had been committed by the individual defendants, and (b) the length of time the plaintiff and his people had been wrongfully kept out of the land. Upon this basis, I would fix the damages recoverable from the twenty-fourth to thirtieth defendants as follows:
The twenty-fourth defendant .. .. £G395 or ¢790.00 damages
The twenty-fifth defendant .. .. £G145 or ¢290.00 damages
The twenty-sixth defendant .. .. £G105 or ¢210.00 damages
The twenty-seventh defendant .. .. £G94 or ¢188.00 damages
The twenty-eighth defendant .. .. £G84 or ¢168.00 damages
The twenty-ninth defendant .. .. £G58 or ¢116.00 damages
The thirtieth defendant .. .. .. £G30 or ¢ 60.00 damages
Though the nineteenth, twenty-third and thirty-third defendants have not appealed, I think that the lump award made against them ought also to be set aside. I would therefore substitute an award of damages for trespass against each of these defendants as follows:
The nineteenth defendant .. .. £G250 or ¢500.00 damages
The twenty-third defendant .. .. £G78 or ¢156.00 damages
The thirty-third defendant .. .. £G36 or ¢72.00 damages. The co-defendant also complains that the costs are excessive, and in this connection, I wish to repeat what I said in Poku v. Frimpong [1972] 1 G.L.R. 230 at p. 241, C.A.
“The award of costs in any proceedings in the High Court is in the discretion of the court or judge, and where this is done judicially, its exercise will not be interfered with by an appellate court. In Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970) C.C. 74, this court held that it will only review the discretion, if it is exercised on material that is illegitimate, or violates some principle of substantive right. The onus is on the appellant to show that the discretion had been wrongly exercised…”The co-defendant has not succeeded in discharging this onus, and, therefore, this ground of appeal must fail. The result of this appeal ought, in my opinion, to be as follows:
(1) The appeal by the third defendant is dismissed.
(2) The lump awards of compensation and damages against the nineteenth, twenty-third, twenty-fourth to the thirtieth and thirty- third defendants are set aside, and there substituted is therefor a
possession order in favour of the plaintiff against each of these defendants, and a further order for
damages for trespass in the manner specified hereunder: [p.124] of [1972] 1 GLR 102
The nineteenth defendant .. .. £G250 or ¢500.00 damages
The twenty-third defendant .. .. £G78 or ¢156.00 damages
The twenty-fourth defendant .. .. £G395 or ¢790.00 damages
The twenty-fifth defendant .. .. £G145 or ¢290.00 damages
The twenty-sixth defendant .. .. £G105 or ¢210.00 damages
The twenty-seventh defendant .. .. £G94 or ¢188.00 damages
The twenty-eighth defendant .. .. £G84 or ¢168.00 damages
The twenty-ninth defendant .. .. £G58 or ¢116.00 damages
The thirtieth defendant .. .. .. £G30 or ¢ 60.00 damages
The thirty-third defendant .. .. £G36 or ¢ 72.00 damages
The plaintiff’s claim for an order of perpetual injunction, restraining the above defendants, their
servants or agents from entering the farms wrongfully made by them succeeds, and the order is
hereby made accordingly.
(3) The appeals by the thirty-first, thirty-fourth and thirty-fifth defendants are dismissed.
(4) The appeals by the second, fourth, fifth, seventh, thirteenth, fourteenth, eighteenth, twenty-first and twenty-second defendants are dismissed.
(5) The co-defendant’s appeal against costs is dismissed.
(6) The plaintiff’s contention that the judgment in favour of the first defendant be varied is rejected.
Costs in this appeal are fixed at ¢570.50 against all the defendants and co-defendant who have appealed.
JUDGMENT OF ARCHER J.A. This appeal raises a very interesting point of law and I have found it necessary to emphasize that point in a separate opinion. On 3 March 1960, the respondent, as plaintiff representing a group of Larteh people, issued a writ of summons against the defendants, some of whom are appellants in this appeal, claiming an order for perpetual injunction restraining the defendants and their agents from interfering with the group’s legal ownership of land lying at Banso in the Ashanti-Akim district, Ashanti Region. The plaintiff also claimed £G5,000 damages for trespass committed by the defendants. The learned trial judge found as a fact that the plaintiff and his group were the legal owners of the land in question because the land was bought by them from the Banso stool in 1927 for the sum of £G871. The learned trial judge was also satisfied that all customary rites to perfect or complete the sale were complied with. This finding would have made the defendants trespassers and they would have had no answer to the plaintiff’s claim.
Nevertheless, when the hearing of the case commenced in the High Court, Kumasi, on 3 October 1962, the Farm Lands (Protection) Act, 1962 (Act 107), had become law as far back as 24 February 1962. The Act was intended to protect farmers whose titles to land were found to be defective. Accordingly, most of the defendants who had [p.125] of [1972] 1 GLR 102 been sued by the plaintiff took advantage of the provisions of the Act and claimed that they were protected by the Act because they acquired their farming lands in good faith after 13 December 1940, and had farmed on their lands within eight years of acquiring their lands. The learned trial judge found as a fact that some of the defendants did not acquire their lands in good faith and therefore were not protected by the provisions of Act 107. As regards other defendants he found that they acted in good faith and were protected by the Act. The learned trial judge then exercised his discretion under section 2 (2) of the Act and conferred title on these defendants. In addition to the compensation allowed by the Act, the learned trial judge also awarded damages for trespass committed by the defendants on the ground that the Act was not intended to take away common law rights.
In this court, it has also been argued by the learned counsel for the plaintiff, that the court below was right in awarding damages for trespass in addition to the compensation allowed by the Act. A very careful reading of the whole Act would indicate that this submission in the court below and in this court is untenable and I must confess that I am not persuaded by it. I agree that the general rule in the construction of statutes is that there is a presumption against changes in the common law. I also agree as stated in Maxwell on Interpretation of Statutes (12th ed.), p. 251 that “Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to strict construction in the same way as penal Acts.” But it seems to me that where the presumption has been rebutted by the clear words of the statute, no strict construction is necessary and the common law must give way. Lord Blackburn in Metropolitan Asylum District v. Hill (1881) 6 App.Cas. 193 at p. 208, H.L. was of the opinion that: “the burden lies on those who seek to establish that the legislature intended to take away the private rights of individuals, to show that by express words or by necessary implication, such an intention appears.” When one reads the whole Act, it is clear that Parliament intended to interfere with individual rights existing at common law. Section 2 confers title on farmers with defective titles who in law could be classified as trespassers. The same section divests true owners of their legal titles and makes provision for the payment of compensation for losing their lands. In my view, compensation under the Act is the only remedy available to the true owner. He is not also entitled to damages for trespass. This is so because the trespass from the time of acquisition has been legalised by Act of Parliament. In Hitchcock v. Way (1837) 6 Ad. & El. 943 at pp. 951-952, Lord Denman C.J. stated the law as follows: “We . . . are of opinion in general that the law as it existed when the action was commenced must decide the rights of the parties in the suit, unless the legislature express a clear intention to vary the relation of litigant parties to each other.” In short, the legislature [p.126] of [1972] 1 GLR 102 says that whenever a farmer is protected by Act 107, he is no trespasser. If that is the case, no damages for trespass can be awarded in addition to the compensation. What should be borne in mind is that the Act not only protects the farmer as a trespasser but goes further to confer title on him if it is just to do so, from the time of his acquiring the land.
When does the statutory title commence? The answer is that it commences from the date of the
acquisition by the farmer. In other words, the statutory title relates back. It has retrospective effect. This effect is clear from the language used in subsection (2) of section 2 of the Act. The relevant part of the subsection reads: “the Court . . . may, instead of making the possession order, make an order providing that the acquisition by the farmer shall be deemed for all purposes to have operated to confer on him the title to the land.” This clearly means that the statutory title does not begin when court proceedings are initiated or from the date of delivery of judgment but the acquisition is deemed to have operated all along as good title thus making the farmer a legal owner. Thus the illegal possession of the farmer is converted into not merely a legal possession but also into a legal ownership from the time of the acquisition. In such a case, it is legally impossible to suggest that an action for damages in trespass would lie against him. The farmer is a legal owner in possession by statute, whereas the true original owner has been divested of hisprivate and individual rights by the same statute.
It has also been urged that subsection (2) deals only with recovery of possession, one of the many
remedies open to the true owner. It seems to me that such an interpretation would be in conflict with the express definition of “possession order” in section 5 of the Act which means “an order requiring the delivery up of possession of land or setting aside a purchase or acquisition of land or making a declaration of title or otherwise in defeasance of title to land.” It follows that a plaintiff can come to court under section 2 (2) and ask for any of these remedies generally classified as “possession orders.” In such cases, the court can exercise the discretionary power vested in it by section 2 (2). It seems to me, therefore, that when the court exercises its discretion under section 2 (2) to confer title on a farmer protected by the Act, the only remedy open to the aggrieved owner is the award of compensation specified by the Act. It may be argued that until the title has been conferred on the farmer by the court, he is still a trespasser. Such an argument is untenable in the face of the memorandum to the Bill which introduced Act 107 into Parliament. It reads: “Several occasions have arisen where a number of farmers have bought land from a stool holder, and after cultivating the land for six, seven or eight years have been presented with documents of title by another person claiming title to the same piece of land [p.127] of [1972] 1 GLR 102 from the former stool holder who did not develop the land. This situation invariably leads to prolonged litigation, waste of time and money and stultifies essential agricultural production.
2. This Bill is thus designed, with retrospective effect, to make it possible for the second lot of purchasers who have developed the land to obtain good title to the land which they have developed. It also provides for compensation to be paid, in appropriate cases, where the Court considers it equitable. ”If the memorandum to the Bill, as an aid to construction permitted by the Interpretation Act, 1960 (C.A. 4), makes it clear that the Act enables farmers to obtain good title with retrospective effect, that is, from the date of acquisition, then the farmers cannot be trespassers at any time from the date of acquisition. Here is a case of interpretation where the memorandum is clear and the words of the statute are also clear and it seems to me that those who advocate that the statutory compensation is the only remedy open to the landowner cannot be wrong.
The next point I wish to deal with is whether the court below exercised its discretion in accordance with the provisions of the Act by conferring titles on some of the defendant farmers. It has been argued that since the Act lays down a statutory mode of calculating the compensation, and that it was impossible to calculate the compensation in the absence of any consideration paid by the defendants, no compensation should have been awarded. When one reads section 2 (3), it is clear that compensation is not automatic. In other words, the court may or may not award compensation after it has conferred title on the farmer. Perhaps, I may say right now that the Act itself does not lay down the mode of calculating the compensation. Section 2 (3) only lays down a statutory maximum or a ceiling. A trial judge is therefore at liberty to award any aggregate which should not exceed the statutory maximum provided the aggregate is fair and reasonable. There is evidence that almost all the defendants-appellants did not pay any consideration for the farms which they cultivated. No consideration was paid by them and any compensation fixed by the court cannot be related to the statutory maximum laid down by the Act because it is legally impossible to ascertain the statutory maximum. The respondent paid £871 in 1927 for the land, which sum was quite a lot of money in 1927. Looking at the plan it appears the court below, by conferring title on the appellants, had deprived the respondents of a very vast portion of the total land they acquired in 1927. I therefore think that such a deprivation was grossly unjust and the court below should have refused to confer title on the appellants. I would, therefore, grant an order for recovery of possession in favour of the plaintiff against the twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty- eighth, twenty-ninth and thirtieth defendants and also grant him the
[p.128] of [1972] 1 GLR 102 remaining reliefs he seeks including damages for trespass. I would also dismiss the appeals of the other defendants and the co-defendant.
JUDGMENT OF LASSEY J.A.
I agree with the views expressed by the other members of this court on the main issue of title to land
raised in this appeal, and I would further add that the plaintiff-syndicate ought to recover the entire land involved in the litigation.
As we differ from the learned judge of the court below for awarding compensation as well as damages to the plaintiff-syndicate and conferring title on the defendants who had defective title, I wish to add a few words of my own concerning the invalidity of these orders.
I find it unnecessary to repeat the background and facts relating to the dispute, as these have already been fully set out both in the opinions just expressed and also in the judgment appealed from. I wish to refer only to the relevant provisions under the Farm Lands (Protection) Act, 1962 (Act 107), when properly applied in order to explain my reasons for disagreeing with the way in which the learned judge in the court below construed and applied those provisions to the circumstances of the present dispute.
The plaintiff and his family-syndicate were owners of a tract of stool land in Ashanti which they
purchased outright years ago, and on which they had settled and established cottages. The land included an area occupied by the defendants who also claimed they acquired it under custom from a rival stool.
This led to a long drawn-out dispute as to title to the land between the plaintiff-syndicate and the
defendants, culminating in lawsuits between them which were settled in favour of the plaintiff-syndicate by the tribunals before which the suits came. As a result, the defendants’ title to the land which they occupied was declared defective. But notwithstanding the findings against them regarding their claim of ownership to the land, the defendants continued to encroach upon the land of the plaintiff-syndicate and persistently interfered with their rights of occupation. Consequently, the syndicate were obliged to institute a further action against the defendants, claiming damages for trespass and an injunction. The action was tried in the High Court, Kumasi, which declared that the plaintiff and his family-syndicate were lawful owners of the land in the occupation of the defendants. The legal consequence of this conclusion constituted the defendants trespassers liable to pay damages and give up possession of the land they occupied.
At the hearing, the defendants placed reliance on the Farm Lands (Protection) Act, 1962 (Act 107), which had been introduced with provisions which operated retrospectively so as to secure protection to their holding. The defendants pleaded as an alternative defence to the plaintiff-syndicate’s claim that although their title was defective, yet still they were entitled under subsection (2) of section 2 of Act 107 [p.129] of [1972] 1 GLR 102 to retain their land. Under the provision of this Act, the prerequisite to the exercise of the court’s discretion to confer title was dependent upon whether or not the defendants acted in good faith in their original acquisition, and also upon whether they gave consideration for their acquisition. The learned judge examined the acquisitions of each of the defendants, and conferred statutory title on those defendants who in his opinion acted in good faith in acquiring title, but declined to do likewise in the case of each of the defendants who the evidence proved entered upon the syndicate’s land in bad faith.
The general purpose underlying the passing of the Act as shown in its memorandum was to secure
protection to the farmer’s holding so as to enable him to continue to develop it while he paid
compensation calculated on a certain basis to the owner for losing his land. With this object of the Act in mind Apaloo J.S.C. (as he then was), after conferring title on the defendants whose title he found was defective but who went on the land in good faith, proceeded to award compensation in addition to damages for the trespass committed by the defendants in favour of the plaintiff-syndicate.
In doing this, he felt some difficulty as to how to set about quantifying the correct amount payable as
compensation and damages, and the matter puzzled his mind at first sight, but in the end he managed somehow to fix a lumpsum. This was how the learned judge reasoned out the matter. He concluded at pp. 709-710 that: “Had this Act [meaning the Farm Lands (Protection) Act, 1962 (Act 107)] 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 has 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 assessments. ”In determining the correct amount of compensation payable in the particular circumstances of this case, the High Court was under an obligation to be guided by the conditions imposed by the Act. The award of compensation was conditional upon whether or not consideration was paid for acquiring the land. From this it was clear the function of the court was a strictly limited one, namely, to fix the compensation in a manner prescribed by the Act, and not to overrun this restricted function by seeking to do justice in a manner not consonant with the conditions laid down for computing the compensation.[p.130] of [1972] 1 GLR 102 Looked at this way, the opinions already expressed by my learned brothers on the matter substantially support my own view so much so that if I should say more than I concur, I feel I should be indulging in mere paraphrasing. The lumpsum assessment and how it was arrived at followed the method of calculation under the common law. But the important question here was that the procedure for calculating under the Act was different from that which is traditionally followed by the courts in assessing common law damages or compensation. In this regard, while I recognise that the general object of the Act was to make it possible for the farmer whose title has been declared defective to continue to develop his land, provided he paid compensation to the owner, I am certain the provisions of the Act did not empower the court to award damages for any wrongful act done.
On the issue of whether or not the court could validly confer title upon the defendants whose holdings were defective, the statutory title conferred on the defendants in this case enabled them to resume development of their farm land, while the compensation which was ordered to be paid by them was intended to reimburse the syndicate for the land they did not get back. The order conferring title was made in exercise of the discretion vested in the High Court under subsection (2) of section 2 of the Act which stipulates that “the Court … may, instead of making the possession order, make an order providing that the acquisition by the farmer shall be deemed for all purposes to have operated to confer on him the title to the land.” The defendants apart from being liable to pay damages for the trespass they committed by going upon the land of the plaintiff-syndicate, stood to be ejected as well. But the Farm Lands (Protection) Act, 1962 (Act 107), intervened to save their possession providing their original acquisition was for valuable consideration. The effect of subsection (2) of section 2 was to legalise the act of trespass and make it possible for the defendants to remain on the land and develop it while title was restored to them by the court.
As pointed out, the condition requisite for the exercise of the discretion to confer title must depend upon whether or not consideration was paid for the original acquisition by the defendants. If not, then no compensation was statutorily payable and consequently it would not be proper for the court to confer title thereby. That part of the Act which compels payment of compensation enacts under subsection (3) that: “[T]he Court may make a further order requiring the person in whose favour the order is made to pay to the other person a sum of money by way of compensation:
Provided that the aggregate of any sum ordered to be paid under this section shall not exceed an amount equal to twice the value of the consideration paid at the date of the purported acquisition.”
[p.131] of [1972] 1 GLR 102 It follows that as compensation here fell to be determined solely under conditions laid down by subsection (3) and its proviso, any such determination which ignored compliance with those conditions would seem to have proceeded on a wrong basis, notwithstanding the desire to achieve justice and avoid hardship or injustice to the one party or the other.
The amount of compensation payable by the defendants was ascertainable only from the price or value which they actually paid for acquiring the land. The proviso to subsection (3) says that in fixing that sum the aggregate should not exceed twice the value given as consideration for the acquisition. This means that the defendants’ acquisition must have been made at a price. The language and purpose of the proviso are clear. The price element must be the index by which compensation could be determined; in other words, the value paid for the acquisition must prima facie determine the compensation.
In the present case, the evidence on record was that nothing was given as consideration for the acquisition by the defendants. It is of course, likely that in many cases acquisition can be obtained for no consideration at all, but in construing the Act and applying its relevant provisions to the particular facts proved in this case, the statutory requirement that compensation must be paid on condition that an acquirer must have given some consideration was vital to deciding whether or not title should be conferred.
Such being the legal position, it seems the manner in which the learned judge approached the whole
question showed a departure from the plain language of the Act, for it was clear that before title could be conferred on the defendants, they must be shown on the evidence they produced to have paid monetary consideration which would make it possible for compensation available against them to be determined.
But if it be found that no consideration was given for their acquisition, no compensation was payable and therefore title could not be conferred in substitution for the order for possession against them.
In my opinion, the subsection under the Act enjoins upon the farmer that before he can qualify to have title conferred on him in respect of a defective title, compensation must be made payable by him to the owner of the land. It will, therefore, be immediately apparent from the decision appealed from that it involved a result which must be directly contrary to what the legislation intended. The decision involved that the farmer may retain his land, without paying compensation under the Act to the owner. To hold that in this case such was the intention of the legislature seems to me to be a misdirection. Such result can be avoided by limiting the meaning of the words in the Act as I have suggested, with the result that in my judgment the acquisition of land free of charge does not come in for protection under the Act.
[p.132] of [1972] 1 GLR 102 The proper interpretation of the provisions in section 2 (2) and (3), the combination of which is the source of the court’s power to make the orders conferring title and payment of compensation is of great significance in achieving the degree equivalence envisaged under the Act. The main problem before the court was how to determine the compensation payable in the event statutory title was to be conferred. In this exercise, the task of the court was to apply the law to the particular facts as proved by the evidence led, and in this way justice would ordinarily be seen to have been done according to law.
Justice under the Act, in my view, demands that when a defective title is perfected and land is given to the farmer, compensation should be paid to the owner to reimburse him in the manner prescribed by the Act.
Therefore when considering the balance of hardship and injustice, it must be pointed out that since laws are often passed by fallible human beings who cannot be expected to foresee every contingency and make provisions to meet it, and since laws deal with general situations to which there may be unfortunate exceptions, it is inevitable that less than perfect justice may sometimes maintain the balance of hardship and injustice. Surely, it must be a matter of misgiving if the law as applied seems to proceed on a path which diverges from reality or leads to a conclusion which does not appear to accord with justice. There can be no doubt that the defendants have for a long time be in unlawful occupation of the syndicate’s land and derived benefits therefrom. Justice demands that as they could not pay compensation to the rightful owners, they must relinquish their holding to the lawful owners.
The end result of the proper construction of the relevant sub-sections which were applicable to the facts in this case would seem to be that the defendants would not have their title protected by relying on the Act as the court was incapable to determine the sum payable by them by way of compensation to the plaintiff-syndicate as required by the Act. For there was no provision in the Act which imports the reasoning that an order for possession of the land can be made in favour of the defendants with defective title when the evidence showed that they paid no money for acquiring it. In such a situation the defendants certainly could not bring themselves within the purpose contemplated by the Act, and, consequently, it was in the interest of justice that the possession of their land should be restored to the lawful owners, the plaintiff-syndicate.
It was for these reasons that I have also come to the conclusion that the orders conferring statutory title on the defendants and awarding compensation in favour of the plaintiff-syndicate were wrongly made and should be reversed in favour of an order restoring the land in the occupation of the defendants to the plaintiff-syndicate. The [p.133] of [1972] 1 GLR 102 syndicate were also entitled to the sums assessed as damages for the trespass committed by the defendants on their land.
DECISION
Appeal dismissed.
Order for recovery of possession of land substituted for the award of compensation.
