AMOABIMAA AND ANOTHER v. OKYIR AND ANOTHER (CONSOLIDATED) [1965] GLR 59

DIVISION: SUPREME COURT

DATE: 22 FEBRUARY 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court (unreported) in favour of the respondents in an action for an order of accounts and recovery of certain cocoa farms. COUNSEL

B. J. da Rocha for the appellant. I. K. Abban for the respondents.

JUDGMENT OF OLLENNU J.S.C.

This is an appeal by the defendants in each of the consolidated cases in the court below, from a judgment of Sowah J. delivered in favour of the plaintiffs in the said two consolidated cases. The facts in the cases are briefly as follows: There is a family in Nyakrom known as Yego family; the said family has four sections. Until the year 1949, the four sections were administered together as a composite family, with an overall head over and above the sectional heads, and properties owned by the different sections were enjoyed in common. The defendants are respectively queenmother and head of one of the said four sections, their section is known as the Ampiakoko section; another section is known as the Apaa section. Differences arose between the defendants’ section on one hand and the remaining three sections on the other; this led, in 1949, to customary severance of the family ties between the defendants’ section from the rest. In consequence of this severance the defendants’ section now enjoy their separate properties in severalty; their lands in question are known as Obuafi, Otsikorang and Busumpa. In 1954 the defendants obtained judgment in the Agona Native Court against certain individual members of the other three sections of the Yego family for a declaration of title to the said three pieces of land, and for recovery of portions thereof occupied by those individuals. The said judgment was confirmed by the West African Court of Appeal and eventually by the Privy Council. In execution of the said judgment the defendants obtained a writ of possession and upon it ejected not only the defendants in that case, i.e. those against whom they had obtained judgment, but they also ejected the plaintiffs herein and other persons who were not parties to the said suit, and dispossessed them of cocoa farms they own on the lands. In consequence thereof, the plaintiffs instituted

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the present actions and claimed (i) recovery of possession and (ii) an order for accounts. Each of the plaintiffs pleaded two important averments, namely, (1) that he was not a party to the suit in respect of which the execution had been issued, and (2) that he is a member of the defendants’ section, the Ampiakoko section of the Yego family, having joined the same and been adopted into that branch of the family in 1914. The defendants admitted that the plaintiffs were not parties to the said suit, but they denied that the plaintiffs belong to the Ampiakoko section; they pleaded that the plaintiffs are by ancestry members of the Apaa section of the Yego family, that the judgment upon which the execution had been issued was against members of the other three sections of the Yego family in a representative capacity and therefore binding upon the plaintiffs. The defendants contended therefore that the plaintiffs were lawfully dispossessed of their land and farms, and are not entitled to any of the reliefs they seek. The trial judge found that the suit in respect of which the execution had been issued was against the defendants therein in their individual capacities and not in any representative capacity, and therefore the judgment therein was not binding upon the plaintiffs; he also found that the plaintiffs are members of the Ampiakoko section of the Yego family. He held, therefore, that in either case the plaintiffs were wrongly dispossessed, and were entitled to each of the reliefs which they claim. Learned counsel for the defendants admitted candidly that the findings of the learned trail judge that the plaintiffs were not bound by the judgment upon which the execution had been issued, and that they are members of the Ampiakoko section of the Yego family are incontrovertible. In view of those admissions counsel did not argue the two original grounds of appeal filed. We would observe at this stage that the evidence in support of each of those two important findings of the learned judge is so crystal clear that the admission of counsel is honourable. Counsel, however, contended that in spite of the correctness of those findings, the further finding made by the learned judge that the ejectment of the plaintiffs was unlawful was wrong in law, and that the learned judge erred in granting any of the reliefs sought. He argued the appeal on the following ground which he filed as additional grounds;  “(a) The learned trial judge erred in making an order for an account without in the first place considering whether on the facts of the case and as a matter of law the defendants were accountable to the plaintiffs.

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(b) Both upon the pleadings and the evidence adduced by the plaintiffs they were not entitled to claim an account from the defendants and the learned trial judge erred in ordering an account. (c) The learned trial judge having found that the plaintiffs had after severance of family ties given support to the other three sections of the Yego family (i.e. the defendants’ opponents) erred in holding that the ejectment of the plaintiffs from the farms was unlawful especially having regard to paragraph 8 of the defendants’ statement of defence.” For the sake of convenience, we would deal with the submission on ground (c) first and thereafter deal with grounds (a) and (b) together. In support of ground (c) counsel submitted (1) that since the land occupied by each of the plaintiffs is a portion of what is admittedly family property, and since the plaintiffs are members of the family, the ultimate title of the family in the land runs concurrently with the possessory title of the plaintiffs and can be asserted at any time. He submitted that in those circumstances the entry by the defendants upon the farms of the plaintiffs and the ejectment of the plaintiffs therefrom is not unlawful; and (2) that the legal effect of the finding of the trial judge that the plaintiffs gave support to the other three sections of the Yego family in their litigation with the defendants’ section is, that the plaintiffs rendered themselves liable to ejectment from the family land in their occupation, and therefore their ejectment from the farms, even though effected upon the writ of possession and not otherwise, is justifiable upon another ground, and the trial judge should therefore have dismissed the claim for possession. None of these two novel propositions made by counsel can be supported upon any principle of customary law, or of our common law which includes the principle of equity. The law as to title of a subject of a stool or member of a family to stool or family land in his occupation is that by his occupation, he acquires a determinable or usufructuary title to the portion he so occupies; that title is a burden on the absolute title of the stool or family; it vests in the subject or the member of family an exclusive right to possession; it is the most perfect estate that an individual can have in land, a freehold interest of inheritance. That title prevails against the whole world even against the stool, community or family in which the absolute title may be vested. In some respects that possessory title vis-a-vis the absolute estate is comparable to the possessory title of a tenant for a term of years under the common law vis-a-vis the reversion of the landlord which possession, while it subsists, is good against the whole world including the landlord: see North Western Railway Company v. Buckmaster1 but it is superior to the possessory title of the tenant, in that while the title of the tenant is limited to a definite term of years or a term that is definable: see Sevenoaks, Maidstone and Tunbridge Ry. Co. v. London Chatham and Dover Ry. Co.2 that of the subject or member of family is in the nature of an inheritable freehold estate which continues indefinitely so long as the subject acknowledges his loyalty to the stool or family. Therefore a hostile or an unfriendly entry by a stool upon a portion of stool land in the possession or occupation of a subject or by a family upon land in the possession or occupation of a member of the family is against all principles of customary law. Such an entry is an undue and arbitrary interference by the stool or family with the title and possession of the subject or member, it is discountenanced by customary law; in short, it is unlawful. As to forfeiture by a subject or member of family of his determinable title to stool or family land upon his denial of allegiance or loyalty to the stool or family, it must be pointed out that forfeiture is not automatic upon any such misconduct. It is the extreme punishment which may, in the discretion of the elders, be inflicted upon the subject or the member of family after due inquiry in which the person accused of the misconduct is given opportunity of being heard; even where the misconduct is proved the elders might well feel that a much lesser penalty may suit the case. In any event, the submission that the plaintiffs have rendered themselves liable to forfeiture by reason of the said finding of the judge is untenable. In the first place, all that the learned trial judge said in this regard is that he was “satisfied that after the severance of family ties they (the plaintiffs) gave some support to the other three sections.” But the learned judge was equally emphatic in his acceptance of the assertion of the plaintiffs, confirmed by the defendants themselves, that the plaintiffs have at all times acknowledged and recognised the absolute ownership of the Ampiakoko section of the family to the land in dispute. In those circumstances there are no grounds upon which, under customary law, any proceedings for forfeiture can lawfully be instituted against any of the plaintiffs, and no forfeiture can be raised. Therefore the dispossession of the plaintiffs of their lands and their ejectment therefrom by the defendants are unquestionably unlawful. On grounds (a) and (b) learned counsel for the defendants submitted, that as head and principal members of the family, the defendants are in law not accountable to the plaintiffs, members of the said family, for proceeds and mesne profits of the farms of the plaintiffs even if the dispossession of the plaintiffs was wrongful. He submitted that whatever relief the plaintiffs may have in law against a stranger trespasser in similar circumstances, they have no remedy against the family. There are three eventualities in which a family would, under customary law, be entitled to take charge and control of self-acquired property of a member of the family—a person’s self-acquired property includes a portion of family land which he has reduced into his exclusive possession; those three eventualities are (a) where the member of the family dies intestate, (b) where the member of the family becomes incapable by reason of disease of the mind, incarceration or from some other cause, of controlling or managing his own affairs, or to appoint an agent or trustee to administer the same on his behalf and (c) where the owner himself voluntarily entrusts the same to the family, e.g. where he is going abroad. In the first eventuality, i.e. upon death intestate, ownership of the property vests in the family, and the person appointed by the family to administer the same is liable to account to the family. In the second and third eventualities, ownership of the property remains in the incapacitated member, therefore the right of the family to it is that of natural guardian or trustee for the incapacitated member-owner. In that case the family are accountable for their administration thereof; but they are not tortfeasors liable to refund every penny of the mesne profits or proceeds actually realised. None of these three instances is applicable to the present suit. Therefore, as submitted by counsel for the defendants, it would appear that the claim for accounts is not the appropriate relief for the tort committed by the defendants. Counsel for the plaintiffs on the other hand submitted that by their taking possession of the farms of the plaintiffs, the defendants made themselves quasi-trustees and are therefore accountable. In the circumstances of the case, three alternatives are open to the court, one is to set aside the order for accounts and reserve liberty to the plaintiffs to institute another action for the appropriate remedy, in which case all they would have to do is to plead and produce the judgment in their favour for recovery of possession. But this will be encouraging a multiplicity of suits and also involving the defendants in more expenditure and costs. Another course open to the court is to exercise the powers vested in it to amend the claim even at this late hour; as to the powers of

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a Court of Appeal to amend a claim: see England v. Palmer3 and Nkyi XI v. Kuma.4 The third course is for the court to uphold the order for accounts by treating it as made by the High Court as incidental to its jurisdiction to make an order for injunction to restrain the continued violation of a legal right: see Jesus College v. Bloom5 and Parrot v. Palmer6. We adopt the third alternative as the one most favourable to the defendants. For these reasons given above, the appeal is dismissed.

JUDGMENT OF MILLS-ODOI J.S.C.

I agree.

JUDGMENT OF BRUCE-LYLE J.S.C.

I also agree.

DECISION

Appeal dismissed

K. T.