DIVISION: IN THE SUPREME COURT
DATE: 13TH MARCH, 1963
BEFORE: KORSAH C.J., CRABBE AND BLAY JJ.S.C.
CASES REFERRED TO
(1) Nii Adjei Onano v. Okoi Noi, W.A.C.A., May 30, 1950, unreported.
(2) Kwame v. Quaynor [1959] G.L.R. 269, C.A.
[p.280] of [1963] 1 GLR 279
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court which had reversed the decision of the trial local court given
in the appellant’s favour in an action for declaration of title to land situate in the Abafum quarter of
Labadi.
COUNSEL
Hayfron-Benjamin for the appellant.
Dr. de Graft-Johnson for the respondent.
JUDGMENT OF BLAY J.S.C.
This is an appeal from the judgment of the High Court, Accra, which reversed the judgment of the East
Accra Local Court given in favour of the appellant. The appellant by his writ of summons issued in the
local court, claimed a declaration of title to three pieces or parcels of land which he claimed the
defendant, the respondent herein, had wrongfully entered upon. The three pieces or parcels of land were
fully described in the said writ. The appellant’s case was that he as head of Abafum quarter in Labadi,
was the proper person to grant or alienate lands attached to the said quarter; that the respondent
purporting to have received a grant from the Labadi chief, had entered upon the three pieces or parcels of
land without his appellant’s, consent or authority. He therefore claimed £G50 damages for trespass and an
order of injunction restraining the respondent his representatives, agents and or servants from entering
upon the said lands and in any manner interfering with his, the appellant’s, rights thereon. The appellant
in support of his claim gave evidence to the effect that Labadi was divided into seven quarters and each
quarter had its “quarter lands” as well as “outskirts lands” adjoining the quarter, and that it is the head of
the quarter who has the right to deal with the “outskirts lands” of the quarter. He then proceeded as
follows:
“Anybody wanting a land has to approach the head of the particular quarters and if the land has not been
allocated to anybody else, the head will give out the land to the party. The custom at Labadi is that the head
of the quarters gives out land to people requiring portions. The Labadi Mantse never gives out land as the
lands belong to various quarters.”
Under cross-examination the appellant repeated the custom as stated above and went on to state that it
was because the ex-chief tried to sell quarter lands, contrary to custom, that he was destooled. His
evidence on this point was that, “The Mantse had no authority to give out any quarter land whether by
purchase or gift. He tried to do this, and as this was an uncustomary practice, we destooled him.”
The appellant next called five witnesses, some of whom were heads of quarters in Labadi, who all
confirmed that the Labadi Mantse had no right to grant or sell quarter lands or “outskirts lands” attached
to a quarter and that it was the head of a quarter who had the right and authority to do so. None of these
witnesses was shaken in cross-examination.
The respondent’s case was that he had purchased the land in dispute from one Herman Kwesah Foli, who
had originally acquired it from the Labadi Mantse, and that finding that the land had been re-demarcated,
he approached the Labadi Mantse personally and obtained a supplementary deed of grant from the Labadi stool. He maintained that the Labadi [p.281] of [1963] 1 GLR 279
chief had the right and authority to make grants in respect of all lands in Labadi and cited the case of Mr.
Ako Adjei who, having obtained a grant of land from the Abafum quarters, was later forced to
re-purchase the same land from one G. T. Nubuor who had purchased from the Labadi Mantse. Under
cross-examination however, he confessed that he did not know the custom at Labadi governing the
alienation of lands. In support of his case he called G. T. Nubuor who testified that he had once sold a
piece of land to Mr. Ako Adjei, which he had originally bought from Nii Adjei Onano, ex-Labadi Mantse.
The next witness called by him was Asafoatse Tutuani II. Under cross-examination by the court, this
witness deposed:
“There are six quarters at Labadi and they have their outskirts lands. The outskirts lands are under the control
of the heads of the quarters. If anybody wanted an outskirt land he had to approach the head of the quarters.
If that party went straight to the Manche, the Manche had to invite the heads of the quarters and inform them
in the first instance. It would be wrong if the chief did not follow this practice. It is wrong if the Labadi
Manche alienates any quarter land without the consent of the quarters.”
It will be seen that the evidence of this witness substantially supported the case of the appellant. The
respondent called no further evidence to contradict the evidence given by the appellant and his witnesses
as regards the custom in Labadi in respect of alienation of quarter lands and outskirts lands. Upon the
close of the case for the respondent the local court magistrate decided to visit the land in dispute which he
did, accompanied by the parties to the suit. On the strength of the evidence adduced before him, the local
court magistrate gave judgment in favour of the appellant in the following terms:
“From the evidence before me, I am satisfied that the plaintiff had proved his case, and I conclude that Nii
Adjei Onano, ex-Labadi Manche had no authority to alienate the land in dispute; therefore the transaction
between Nii Adjei Onano and Foli and then the defendant is hereby declared null and void. Judgment is
hereby entered for the plaintiff and awarded £25 0s. 0d. damages with costs to be taxed.
ORDER:
The land being subject-matter of this suit is hereby restored to its owners (plaintiff, his elders and people of
Abafum quarter of Labadi). The defendant shall not commit further trespass on plaintiff’s land.”
From this judgment of the local court the respondent appealed to the High Court, Accra, on eight grounds
of appeal. When, however, the appeal came on for hearing before the High Court, only one ground of
appeal was canvassed and the following is the record of the proceedings as it appears on pages 25 and 26
of the Record of Appeal:
“L.A. No. 32/60.
Nii Adotei Adoaku Plaintiff-Respondent.
versus
J. K. Nyamalor Defendant-Appellant.
[p.282] of [1963] 1 GLR 279
Appeal from Accra East Local Court.
Mr. Asamoah for Akufo-Addo for defendant-appellant.
Mr. Swaniker for the plaintiff-respondent.
Asamoah argues: Sometime in 1946 the then La Mantse granted three plots to Mr. Herman Foli. Herman Foli
appointed appellant his attorney to deal with the land in 1953. Then in 1954 he sold all three plots to
appellant. In 1955 some doubt arose as to the extent of the land of the appellant as between himself and the La Mantse who then granted a rectificatory indenture exhibit C. Some persons built on all three plots somehow and appellant took legal steps at any rate against one exhibit Z. After exhibit Z striking out the case from this court plaintiff-respondent contended the Labadi Mantse
should not have sold the land and he made enquiries of appellant how appellant came by the plots, told him
that his predecessors Nii Ankamafio had granted the land to certain persons and he intimated that he would
institute proceedings which he did.
The local court magistrate rested his judgment, inter alia, on the Noi Kwame case. The Noi Kwame case was
an Osu case and had nothing to do with the case before him which concerned Labadi land. The case more in
point was Nii Adjei Onano v. Okoi Noi and Nii Ankamafio, Civil Appeal No. 22/49 dated the 30th May,
1950.
Per curiam to counsel, Mr. Swaniker:
In face of that West African Court of Appeal judgment, can you support the judgment in favour of your
client?
Per Mr. Swaniker
The plaintiff called as many as five witnesses, four of whom were elders who supported the plaintiff. I
submit this case is distinguishable in view of the fact that this deals with quarter land.
Per curiam: Mr. Asamoah, you are not called upon. The appeal will be and is hereby allowed Reasons will be
read later, when the question of costs will also be dealt with.”
From the above record of the proceedings before the High Court, it is clear that the learned trial judge
based his judgment on the authority of the decision in Nii Adjei Onano v. Okoi Noi and Nii Ankamafio,
Civil Appeal No. 22/49, dated 30th May, 1950.1 In the learned judge’s reasons for the judgment he
elaborated on the judgment in that case and criticised the local court magistrate for not following it.
It must at once be pointed out that that judgment was not brought to the notice of the magistrate and on
the evidence before the local court it is difficult to see how he could have come to any other decision than
he did. But even if that judgment had been brought to the notice of the local court, I do not, with due
respect to the learned judge of the High Court, see how it could have influenced the judgment delivered
by the local court. At the hearing of this appeal the court called for the judgment of the West African
Court of Appeal in the case of Nii Adjei Onano v. Okoi Noi and Nii Ankamafio relied on by the learned
judge of the High Court for his judgment.
[p.283] of [1963] 1 GLR 279
It appears however that what the appeal court did decide was that decisions of native tribunals on question
of native law are matters peculiarly within their knowledge and such findings will not be disturbed
without very clear proof that they were wrong. The judgment of the Land Court from which the appeal
was lodged was also on the same line. It is necessary therefore to refer to the judgment of the native court
to ascertain what was actually decided. The learned judge of the High Court, has in his usual manner
quoted in extenso the relevant portions of the decision of the native court and embodied them in the
reasons for his judgment and I will now proceed to examine these to see how far they conflict with the
decision of the local court in the present case.
The first quotation from the judgment of the native court is as follows:
“It is not objectionable if any head of a quarter grants land to a subject within the outskirts limit; but the
Mantse must be informed in the same way as in the grant of any piece of land beyond the outskirts area.”
I confess that I find nothing in the above quotation substantially inconsistent with the judgment of the
local court in the present case. What the local court decided in the present case is that the head of a
quarter is the proper person to deal with or grant quarter lands and quarter outskirts lands. It did not even extend the rights of the head of the quarter to lands beyond the outskirts area as did the native court. The
condition that the Mantse should be informed of a grant is to my mind immaterial to the main issue as to
who has the right to make the grant in the first place.
The next passage quoted by the learned judge of the High Court is:
“The court is satisfied after careful investigation of the facts adduced by parties in the suit that the land in
dispute is part and parcel of the La stool land and it is situate beyond any outskirts area, if any … There is no
person in Labadi according to exhibit A who owns a portion of the La stool land as his bona fide property, it
being possessed by conquest. The defendants’ [claim to] title fails as they did not produce any document in
evidence stating how the land in question became divided among the quarters.”
The learned judge described the above quotation as “important findings” of the native court. Here again, I
find no inconsistency between the decision of the local court in the present case and the findings
contained in the quotation. The opening sentences of the quotation make it abundantly clear that the native court was dealing with
land beyond any quarter area. In the present case there was no dispute that the land, the subject-matter of
the suit, was within the Abafum quarter of the appellant. His evidence on the point is as follows:
“I have not given any portion of the Abafum quarters land to the defendant but he was trying to sell part of
the land to people so I took this action against him. The land was a gift made by the Labadi Mantse to the
defendant. The chief had no right to give out land belonging to my quarters.”
[p.284] of [1963] 1 GLR 279
It follows therefore that in my view of the evidence on record, the learned judge of the High Court erred
in upsetting the judgment of the local court on the authority of the case of Nii Adjei Onano v. Okoi Noi.
The learned judge of the High Court in his judgment criticised the local court magistrate for relying on
the case of Kwami v. Quaynor2 which he said was a case connected with Osu stool lands and not Labadi
stool lands. I would have agreed with the learned judge’s criticisms had there not been ample evidence on
record which went to show that the customary law in Labadi in respect of alienation of quarter lands was
obviously similar to that obtaining in Osu, a neighbouring state or division as evidenced by the judgment
in the case referred to above. With respect, I do not also agree with the learned judge that the local court magistrate should have given
weight to the point made in favour of the respondent,
“that even a distinguished Labadi citizen like Honourable Ako Adjei who was granted land by the
predecessor of the plaintiff, had to acknowledge the superior title of one Teye Nubuor who had acquired the
same plot of land from the Manche of Labadi, and was forced to come to terms by agreeing to purchase from
the grantee of the La Mantse.” There is not a tittle of evidence on record to show that the appellant’s predecessor knew of the alleged
transaction between Honourable Ako Adjei and Teye Nubuor. And I do not see how that transaction
could affect the appellant in any way. At the hearing of the appeal, counsel for the respondent attempted
to impute knowledge of the transaction to the appellant and or his predecessors by referring to an alleged
signature appearing on exhibit G purporting to be that of the predecessor of the appellant. Reference to
the evidence of the appellant however showed conclusively that none of his predecessors bore the name
of Tetteh Nkpa who had marked the exhibit as Asafoatse and headman of Abafum.
In the result I would allow the appeal, set aside the judgment of the High Court together with the order as
to costs and restore the judgment of the trial court.
JUDGMENT OF KORSAH C.J.
I agree.
JUDGMENT OF CRABBE J.S.C.
My brother Blay has dealt so fully with the matter that I do not think I can usefully add anything, except
to say that I agree entirely with all that he has said.
DECISION
Appeal allowed.
Judgment of trial court restored.
J. D.
