THE COURT OF APPEAL
5 APRIL 1971
BEFORE: AZU CRABBE, LASSEY AND JIAGGE JJ.A.
CASES REFERRED TO
(1) South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44; [1895-96] All E.R. Rep. 259.
(2) In re Cohen (decd.); National Provincial Bank Ltd. v. Katz [1953] Ch. 88; [1953] 1 W.L.R. 303; [1953] 1 All E.R. 378, C.A.
(3) Duppa v. Mayo (1669) 1 Wms. Saund. 275; 85 E.R. 336.
(4) Sainsbury v. Mathews (1834) 4 M. & W. 343; 150 E.R. 1460.
(5) Marshall v. Green (1875) 1 C.P.D. 35; 45 L.J.Q.B. 153; 33 L.T. 404; 24 W. R. 175.
NATURE OF PROCEEDINGS
APPEAL from the judgment of Sowah J. (as he then was) which reversed an earlier judgment of a local court magistrate. The facts are fully stated in the judgment of Azu Crabbe J.A.
COUNSEL
A. Ackuaku for the appellants.
No Appearance by or for the respondents.
JUDGMENT OF AZU CRABBE J.A.
This is an appeal from the judgment of Sowah J. (as he then was) whereby he reversed the decision of the magistrate sitting in the Dzodze Local Court, and entered judgment, together with costs, for the respondents.
The respondents (hereinafter referred to as the plaintiffs) instituted an action in the Dzodze Local Court against the appellants (hereinafter referred to as the defendants) claiming from the defendants jointly and severally the sum of £G82 10s. Od. (N¢165), being the value of cassava which the plaintiffs had planted in their farm at Avetorforkli. The plaintiffs’ case was that the defendants unlawfully trespassed upon the said farm and uprooted the cassava, which they carried away and sold for their benefit. The plaintiffs contended that the land, on which the farm in dispute is situated, had been the subject-matter of a series of previous litigation, and in support of their claim they tendered in evidence five judgments given in respect of the land. They further called two witnesses who testified that they helped them to cultivate the cassava farm.
The first defendant, on the other hand, claimed the cassava farm as his personal property. He said in evidence as follows:
“The cassava crops or plantation in question was cultivated by myself personally. The said Avetorforkli piece of land, on which I planted the cassava, belonged to my grandfather Gbidimi. The said Gbidimi was succeeded on the said piece of land by his son Ege. Ege
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too was succeeded thereon by his sons Gbaga and Lawoe. These two were also succeeded thereon by my grandfather Eha Dorpenyui. He was succeeded thereon by my father Hunugbo Dosu. During my father’s occupation of the land, a litigation arose thereabout between him and one Ladzekpo of Torgodo and the case was won by my father. After the death of my father, his younger brother Dzivenu succeeded him thereon and also occupied the land till he was made a fetish priest. I succeeded my uncle Dzivenu on the land for about fifteen years now; and it was part thereof I farmed the cassava on.”
He said that he was in occupation, and enjoying the use, of the farm when the first plaintiff led six men to the land in dispute to assist him to clear a portion of the land. In consequence of this trespass, he brought an action against the first plaintiff in the Wheto Native Court B, but his action failed. He said that during the course of his evidence, the first plaintiff alleged that he derived his title from one Gabla Amegadze. The first defendant, therefore, brought a second action against the said Gabla Amegadze for a declaration of title to the land, and the first plaintiff joined the suit as co-defendant. According to the first defendant, judgment was given in his favour, but the court ordered that the first plaintiff should continue to occupy the piece of land which, he claimed upon forged documents, the first defendant had granted to him. Soon after this judgment, the first defendant said he heard rumours that the first plaintiff was going to uproot his (first defendant’s) cassava on the land. The first defendant, therefore, ordered the third, fourth and fifth defendants to assist him to harvest the cassava. Whilst they were working on the farm, they were all arrested upon a complaint made to the local authority police by the first plaintiff. The first defendant was prosecuted, but was discharged. He then brought a counter-charge against the plaintiff for possessing forged documents. The first plaintiff was prosecuted and convicted, but upon appeal the conviction was quashed. The first defendant tendered in evidence two judgments, and called witnesses who either had farms that formed boundary with his cassava farm, or who had assisted him to make the farm.
At the close of the evidence, the local court magistrate found little to choose between the evidence by the first plaintiff, and that given by the first defendant. Accordingly, he ordered an inspection of the cassava farm, but this still could not help him to resolve his difficulty. The local court magistrate expressed his dilemma in the following passage of his judgment:
“As could be seen from the inspection report, there came out no fact as clue to the solution of the difficulty confronting me in the matter. In the farm, I found crops such as cassava, beans, banana and plaintain growing thereon. The first plaintiff claimed all these crops to be his and, as well, the first defendant too claimed them all to be his; and curiously enough, there were witnesses there to support their respective claims to these crops now being grown in the farm.”
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The local court magistrate continued his judgment as follows:
“Turning now to the parties’ claim of title of ownership to the land itself, I found that, according to exhibits tendered, the first plaintiff herein had acquired the most recent judgment, vide exhibit C, as owner of the land itself and as a grant to him from the first defendant herein as original owner thereof. But there was no injunction granted therein restraining the first defendant therefrom to prove it that he (first defendant) could not have again gone to grow the alleged crops thereon after that judgment exhibit C.”
He eventually confessed to his inability to resolve the dispute solely upon the evidence, as can be gleaned from the following concluding passage in the judgment:
“In view of the facts above, I found myself in a very difficult and doubtful position in deciding which of the two parties herein grew or cultivated the cassava in question on the land. I therefore decided to give the benefit of my doubt to the defendants herein.”
The local court magistrate accordingly non-suited the plaintiffs, but he made no order as to costs. Upon appeal Sowah J. thought that the local court magistrate’s doubts were unfounded, and said: “The owner of a land is presumed to be the owner of everything thereon and in the bowels of that land until it is proved that his interest is limited to the surface either by the grant which gave him possession or by his own deed. Having found that the land belongs to the plaintiff the magistrate was bound in the circumstance of this case to find that the plaintiff was the owner of the cassava.”
In this appeal the only ground of appeal argued was that the judgment of Sowah J. was against the weight of evidence. For my part, I find no merit whatsoever in the argument advanced in support of this ground of appeal, since, in my view, Sowah J.’s statement of the legal principle, upon which he based his conclusion, is very correct.
It seems to me that the local court magistrate having found that the first plaintiff was the true owner of the land, he must be held to be the owner of the land, unless there is evidence that he had divested himself of the ownership by one of the recognised methods: abandonment, gift or sale. There was no such evidence in this case. And there is the presumption in law that the owner of land is prima facie the owner of chattels and things found on the land. The following statement of the principle is found in Pollock and Wright, An Essay on Possession in the Common Law, p. 41:
“The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence…. It is free to any one who requires a specific intention as part of de facto possession to treat this as a positive
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rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier’s general power and intent to exclude unauthorized interference.”
In South Staffordshire Water Co. v. Sharman [1895-96] All E.R. Rep. 259 at p. 261 Lord Russell of Killowen C.J. stated the principle in these terms:
“The general principle within which the case falls seems to me to be that where there is possession of a house or land, with a manifest intention to exercise control over it, and the things in or upon it, . . . then if something is found on it by a person who is either a stranger or a servant, the presumption is that the possession of the thing so found is in the owner of that locus in quo.”
In In re Cohen (decd.); National Provincial Bank Ltd. v. Katz [1953] Ch.88, C.A. quantities of bank notes and coins were discovered after the death of a husband and wife who had lived in a flat, in various places in the flat. Vaisey J. held that in the absence of any trustworthy evidence of ownership recourse must be had to the legal presumption that the owner of land is, prima facie, the owner of chattels found in the land. Though the South Staffordshire case and the Katz case deal with ownership of chattels found on land, I see no reason why the principle in the two cases should not be applied to crops found on land. Crops such as cassava, corn, potatoes, which require the periodical application of labour for their production are known as fructus industriales, and any contract for sale of them whilst growing is not a contract for the sale of an interest in land, but a contract for the sale of goods: Duppa v. Mayo (1669) 85 E.R. 336; Sainsbury v. Mathews (1834) 150 E.R. 1460; Marshall v. Green (1875) 1 C.P.D. 35. In law cassava crops are goods. Thus, where, as in this case, cassava crops are found growing on a piece of land, and there is no clear evidence as to the person who planted them, there arises the presumption that the owner of the land owns the crops. This presumption is rebuttable only by evidence that the owner of the land has divested himself of his ownership, or that he had given permission to the person, who claims that he planted the crops, to go on the land.
In this case there is no evidence that the first plaintiff had divested himself of the ownership of the land, or that he had given the first defendant permission to go on the land in dispute to farm. Therefore, having found that the plaintiff was the owner of the land, the local court magistrate should have entered judgment for the plaintiffs.
In my view Sowah J. came to the right conclusion and I would dismiss the appeal.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF JIAGGE J.A.
I also agree.
DECISION
Appeal dismissed.
- A. B.
