HIGH COURT, ACCRA
DATE: 21 MAY 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Poulett v. Hill [1893] 1 Ch. 277
(2) Williams v. Hunt [1905] 1 K.B. 512
(3) Adamson v. Tuff (1881) 44 L.T. 420
(4) Higgins v. Woodhall (1889) 6 T.L.R.1
(5) Akwei v. Akwei [1961] G.L.R. 212
(6) Selig v. Lion [1891] 1 Q.B. 515
(7) Bennet v. Gamgee (1876) 2 Ex. D. 11
(8) Bean v. Flower (1895) 73 L.T. 371
(9) Harrington v. Ramage (1907) 51 S. J. 514; [1907] W.N. 137
(10) Korley v. Bruce [1962] 1 G.L.R. 7
NATURE OF PROCEEDINGS
ACTION for damages for trespass to land and recovery of possession.
The facts are more fully set out in the judgment.
COUNSEL
K. Sekyi (with him Bredu-Pabi, Dr. de Graft Johnson and W. A. N. Bossman) for the plaintiffs and co-plaintiffs.
A. Asafu-Adjaye (with him G. Koranteng-Addow) for the defendants and co-defendants.
JUDGMENT OF OLLENNU J.
This suit commenced with a writ of summons issued on the 4th August, 1955, in the erstwhile Native Court “A” of Akyem Abuakwa. It was transferred to the Land Court by an order of the Land Court dated the 2nd March, 1956. The co-defendant, the Omanhene of Kwahu, was joined upon his application on the 22nd June, 1956. He had to be joined because by customary law a boundary dispute between a divisional stool in one state and a divisional stool in an adjoining state is a boundary dispute between the one state and the other; for no land can belong to the one paramount stool of the other, unless it belongs to or is in the occupation of a divisional stool under the paramount stool. Therefore whether he joined or not the judgment in the case would be binding upon
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him. The co-plaintiffs who claim title to portions of the land, subject-matter of the suit, as purchasers from the plaintiffs, were joined on the 30th January, 1957, also upon their application.
On the 12th October, 1957, in exercise of the powers in it vested by section 4 of the Stool Lands Boundaries Settlement Ordinance,1(1) the court ordered a stay of the proceedings in view of the two orders made under subsection (2) of section 3 of the said Ordinance for the determination of the boundaries of land vested in the Akyem Abuakwa stool and the boundaries of land vested in the Kwahu stool. The said orders were contained in Legal Notice No. 105 of April, 1956 and Legal Notice No. 214 of the 28th August, 1957. The said orders were revoked on the 8th March, 1960, by an Executive Instrument, No. 60 made under section 3, subsection (3) of the said Ordinance and so the enquiries never took place.
A number of interlocutory proceedings were taken in the meantime. The substantive case came before the court on the 27th May, 1960, on a summons for directions. It appears that the order for stay of proceedings was not brought to the notice of the court on that occasion. The court then made a consent order in terms of the summons for directions, namely issues for trial and a plan. On the 12th February, 1962, when the case came up for trial, objection was raised by counsel for the defence to the court’s jurisdiction to try the case. The grounds for the objection are that the order for a stay of proceedings operated as a bar. In a ruling given on the 20th February, 1962, I hold that the stay did not operate as a perpetual injunction on the court not to hear the case, that it merely suspended the suit, that the orders to hold enquiries of the boundaries of the lands of the two states having been revoked, the order for stay lapsed, and the suit could be put back on the cause list upon a formal application. Formal application was made subsequently, and the case was set down for trial. A number of preliminary points were taken by counsel for the defendants on the day trial. commenced.
For the determination of some of these points, and a proper adjudication of the suit on its merits, it is necessary at this stage to have a brief history of the dispute.
In 1921 the Benkumhene of Akyem Abuakwa, who is the Ohene of Begoro, predecessor of the second plaintiff, took out a writ of summons in the then Supreme Court against Odikro Kwasi Ameyao predecessor of the first defendant, suit No. 34/1921. The writ of summons in that case reads: “The plaintiff’s claim is for recovery of possession of all that piece or parcel of land situate lying and being at Begoro in Akyem Abuakwa Division and bounded by the rivers Amia Worobong or Worobong and Afram, and £G500 for mesne profits; value of land £G500.”
The case was adjourned sine die on the 1st July, 1921, the parties having agreed to submit their dispute to arbitration. Exhibit 1 is the order of the court adjourning the case. The relevant portions of it read: “After hearing representatives of both parties the court adjourns further hearing of this case sine die with a view to parties agreeing to some one to arbitrate in the matter, and the court suggests the S.N.A. or his nominee; the court will direct a communication to be sent to both plaintiff and defendant inviting them in the interest of their people to adopt this course.”
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By an indenture of agreement executed between Nana Sir Ofori Atta, Omanhene of Akyem Abuakwa, jointly with all the divisional stools and sub-stools under him who are interested in the land, of the one part, Nana Akuamoa Akyeampong, Omanhene of Kwahu, jointly with his divisional chiefs and sub-chiefs who claim interest in the land, of the other part, the stool of Akyem Abuakwa and the stool of Kwahu submitted the dispute between them to two arbitrators, Mr. Woolley and Mr. Beeton, district commissioners of Abuakwa and Kwahu.
The said arbitrators held the enquiry in due form, published their award on the 26th February, 1934, exhibit D which is the same as exhibit 5, and reported thereon to the government on the 27th March, 1934, exhibit 4. The report was made through the then Provincial Commissioner.
Meanwhile, a large portion of the area in dispute was created a forest reserve known as the Worobong Forest Reserve. Portions. of it were released at one time to some claimants in consequence of a forest reserve enquiry, and others were also released later upon a judgment of the West African Court of Appeal, exhibit P, on appeal from a decision of the Reserve Settlement Commissioner. The whole area was released from the reserve in 1954. The defendants and their people went into possession and began cultivating the land, whereupon the plaintiffs sued them.
At this stage I will deal with the preliminary points raised. On the 30th April, 1962, the defendants obtained leave and amended their statement of defence by adding a new paragraph, paragraph (6), thereto. The amendment reads: “(6) The defendants will plead that the plaintiffs are estopped per rem judicatam by reason of the suit entitled Benkumhene Twum Antwi v. Odikro Kwasi Anzeyao with suit No. 34/21, which said suit is still pending in this court.”
I do not think that the amendment says what it was meant to say. As it now stands, it is a contradiction in terms. If the case is still pending, not yet determined, then there is no decision recorded on any issues raised in that case which are identical with the issues raised in the present case. The amendment was made after Sir Edward Asafu-Adjaye, had raised the preliminary points. The points Sir Edward Asafu-Adjaye made in respect of the suit No. 34/21 are that:
(1) since the said suit is still pending, the present suit should not have been instituted, because the parties, the subject-matter and the issues in that suit are the same as those in the present suit; therefore the present proceedings should be stayed;
(2) the plaintiffs told the arbitrators that they had discontinued the suit; if that meant that they withdrew the action, then in the absence of a record that leave was granted them to bring a fresh action, the present suit is res judicata;
(3) the award of the arbitration should have been reported to the court in order to make it binding, since it arose out of proceedings in court; and
(4) the court itself should have referred the dispute to arbitration under the Arbitration Ordinance,2(2) and since it failed to do so, the award of the arbitration is ineffective.
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Learned counsel also made the following points:
(1) that the plaintiffs in the present suit have not specifically claimed enforcement of the arbitration award, implying that the boundary is in dispute; therefore the only course open to them, the plaintiffs, is to sue under the Boundaries Ascertainment Ordinance,3(3)
(2) the order E.I. 60/1960 made under section 3 (3) of the Stool Lands Boundaries Settlement Ordinance which revoked orders L.N. 105/1956 and L.N. 214/1957 is ultra vires the Minister; and
(3) the defendants are protected by the Farm Lands (Protection) Act, 1962.4(4)
Now to the points raised in respect of suit No. 34/1921. In law, there is nothing to prevent a person instituting concurrent suits against the same person in respect of the same subject-matter. If, however, the reliefs such a plaintiff claims in the second of two suits are exactly the same as those in the earlier suit, or if he can obtain in the first suit all the reliefs he seeks in the second suit, even though he has not specifically claimed them in the first suit, the court will stay proceedings in the second suit: Poulett v. Hill5(5) followed in Williams v. Hunt.6(6) In Poulett v. Hill, a mortgagee sued claiming payment of principal sum and interest, an account of what was due, foreclosure, and a receiver. Later he commenced a second action claiming a specific sum as interest for two years, less rents received. It was held that as:
“a mortgagee in a foreclosure action obtains a personal order for payment of the principal with interest down to the date of the certificate, the money sought to be recovered in the second action could be recovered in the first, and the second action therefore was improperly brought.”7(7)
It was, therefore stayed. But when the cause of action in the second suit is not the same as that in the first suit, or when the issues are not the same as in the first suit, the second suit will not be stayed: Adamson v. Tuff;8(8) Higgins v. Woodhall.9(9)
Now in the 1921 suit, suit No. 34/1921, the plaintiff claimed “recovery of possession of all that piece or parcel of land situate lying and being at Begoro, etc., bounded by the Rivers Amia Worobong or Worobong and Afram, and £G500 for mesne profits; value of land £G500. “ That certainly is a claim in trespass which must have been committed in or prior to 1912, the year in which the writ issued; and that suit appeared to be based on boundaries alleged to be traditional boundaries. In the present suit the plaintiffs claim:
“(1) a declaration that the boundary fixed by the award of 1934 by virtue of arbitration agreement of 1933 is the boundary between the stools of Akyem Abuakwa and the stool lands of Kwahu.” They also claim recovery of possession and damages for trespass allegedly committed in 1954.
Therefore the claim in the present suit is a claim for enforcement of an arbitration award made subsequent to 1921, and so it
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cannot be the same as the claim in the 1921 suit. Again the area of land of which recovery of possession is now sought cannot be identical with that in the 1921 suit. Furthermore, every act of trespass constitutes a fresh cause of action, therefore reliefs sought in respect of trespass in this present suit committed in 1954 cannot be obtained by the plaintiffs in the former suit. Therefore this suit cannot be stayed by reason of the pendency of the 1921 suit. If there is any record that the suit No. 34/21 was discontinued without leave to institute fresh action, counsel would be right in his submissions that the plaintiffs would be estopped from instituting fresh action, but there is no such record. If reliance is placed upon what is alleged to have happened at the arbitration, that when the arbitrators met the first day to start the proceedings the defendants refused to take part as the suit was still pending, and so the arbitration had to be adjourned for a fortnight to enable the plaintiff to go and discontinue the suit, and that it was only when the plaintiff gave the assurance at the second sitting that he had discontinued his action that the arbitration proceeded, then it means that the defendant made the withdrawal of the 1921 suit a condition precedent to the hearing of the arbitration, and therefore the said suit merged in the arbitration and terminated in the award, but not before. Be that as it may, parties to a suit are entitled even after their dispute had been adjudicated upon by the highest tribunal in the land, still to submit their dispute to arbitration; the award of the arbitration in such a case will be binding upon the parties, and in effect supersede the judgment of the court; see Akwei v. Akwei10(10) and the cases there cited.
Therefore, even if the 1921 suit was discontinued, and no leave was reserved to the plaintiffs to institute fresh action, the plaintiffs can still sue to enforce against the defendants the award of an arbitration to which they and the defendants voluntarily submitted after the discontinuation of the 1921 suit.
The order exhibit 1 which adjourned the 1921 suit sine die did not direct the parties to report the award of the arbitration to the court to be made an order by the court, there is therefore no necessity for reporting the award to the court. Moreover, the fact that the court thought that reconciliation should be promoted between the parties and that they should be encouraged to seek amicable settlement by arbitration did not make it obligatory upon the court itself to refer the dispute to arbitration. The law as it existed in 1921 as to the court’s powers to promote reconciliation in civil cases was the same as it is today. Section 83 of the then Supreme Court Ordinance11(11) said: “Where a civil suit or proceeding is pending, the court may promote reconciliation among the parties thereto, and encourage the amicable settlement thereof.” See section 85 of the Courts Act, 1960.12(12) In promoting reconciliation the court encourages extra-judicial settlement of the dispute. That was what the court appeared to have tried to do in 1921, as would be seen from the record of remarks made by Mr. Hutton-Mills, counsel for the defendant.
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The record reads: “Mr. Hutton-Mills asks that he be allowed to disassociate himself from the recommendation in the direction of reconciliation of parties and settlement of the dispute by agreement made by the court, such recommendation being solely on court’s own suggestion, and the court should itself communicate to the parties about an arbitrator being appointed to settle this matter, and the court to give reasons why the case should go out of this court.”
It was therefore not necessary for the court to order reference to arbitration.
The submission that the claim in the present suit is not for enforcement of the arbitration award is a misconception. The first relief which the plaintiffs seek is a declaration that the award as fixed and demarcated by the arbitration is binding upon the defendants. That in my opinion seeks to enforce the award of the arbitration.
Again the submissions by counsel for the defendants that since the claim relates to a boundary dispute, the plaintiffs should have taken proceedings under section 3 of the Boundaries Ascertainment Ordinance13(13) and that it is not open to them to institute action in the ordinary way, is beside the point. The Ordinance applies where a dispute arises between the owners of adjoining lands, respecting boundary of their lands or where such boundary of adjoining lands is in doubt or where such boundary has not been fixed. Section 3 (1) of the Boundaries Ascertainment Ordinance provides: “3. (1) Whenever a dispute shall arise between the owners of adjoining lands or any persons holding under either of them respecting the boundary of such lands, or where such
boundary is in doubt, or where such boundary has not been fixed, the owner of either of such lands may cause a writ of summons to be issued against the owner of the other of such lands for the determination of such boundary; and if the defendant shall not on the return day show good cause to the contrary, then on proof of the plaintiff and the defendant being owners of adjoining lands, and of the dispute or of the boundary being in doubt or that no boundary has ever been fixed, as the case may be, and, if the defendant shall not appear, of the service of the writ of summons, the Court may order that such boundary shall be determined by the Court, and upon such order being made the Court shall proceed to determine such boundary.”
The Ordinance provides an alternative procedure for instituting action for determination of the boundary between two adjoining pieces of land. It does not exclude the ordinary process of initiating proceedings in court. In any event, the contention of the plaintiffs is that the boundary has been fixed; therefore they need not come by the procedure laid down in the Boundaries Ascertainment Ordinance.
It was argued on behalf of the defence that E.I. 60/1960 was ultra vires the Minister because the powers given to the Minister under section 3 (1) of the Stool Lands Boundary Settlement Ordinance14(14) are only exercisable with respect to the appointment of a person to be a Settlement Commissioner and his deputies generally, whilst the powers given to the Minister under section 3 (2) are to make an order for the purpose of enquiring and determining boundaries of stool lands. Consequently, it was submitted, the powers of revocation given to the Minister in section 3, subsection (3) are exercisable only to revoke the appointment of the commissioner or deputy
commissioners, and not to revoke an order for holding an enquiry as to boundaries. The effect of that submission is that
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an order made by the Minister under section 3, subsection (2) of the Ordinance is irrevocable, and therefore the Orders L.N. 105/1956 and L.N. 214/1957 are still valid, and consequently the order staying the proceedings on account of those orders is still in force.
I shall set out the three subsections of section 3 and consider them:
“3. (1) The President may appoint a fit and proper person to be Settlement Commissioner and such other fit and proper persons as he may consider necessary to be Deputy Settlement Commissioners, who shall have all the powers and duties of the Settlement Commissioner but shall be subject to his directions.
(2) It shall be the duty of a Commissioner to enquire into and determine such boundaries as the President may by Order direct, and the Minister is hereby empowered to make Orders for that purpose whenever he shall think fit so to do.
(3) All appointments under this Ordinance and all revocations of such appointments shall be published in the Gazette and shall, unless it is otherwise provided in the notice of appointment, take effect from the date of such publication.”
Subsection (1) of section 3 provides for the appointment by the President of the officer known as the Settlement Commissioner and his deputies. The direction which under subsection (2) of section 3 the Minister may by order give to the commissioner to enquire into and determine boundaries is an assignment to a Settlement Commissioner of the duty of enquiring into and determining a particular boundary. Such an assignment is itself an appointment of a lawfully appointed commissioner to perform the particular duties. It must be borne in mind that the Minister is not the authority who appoints the commissioner; when the appointing authority, the President, has appointed the commissioner, then the Minister sets or appoints the commissioner to do a duty.
Where a statute gives power to appoint an officer or make an order, that power implies a power to revoke the appointment or the order made. Therefore, the revoking order, E.I. 60/1960, is within the competency of the Minister, the said E.I. 601/960 validly revoked L.N. 105/1956 and L.N. 214/1957, but it did not affect the appointment of any particular person as a commissioner. Consequently, as the order for stay of proceedings under section 4 of the Stool Lands Boundaries Settlement Ordinance was conditional upon the determination of the enquiry and as the enquiry can no longer be held by reason of the revocation of the orders directing the holding thereof, the restoration of the case to the list upon the motion of the plaintiffs, was properly made: see Selig v. Lion,15(15) Bennet v. Gamgee16(16) Rean v. Flower17(17) and Harrington v. Ramage.18(18)
The next preliminary point raised for the defence is that the defendants are protected under the Farm Lands (Protection) Act, 1962.19(19) I shall deal with that Act at a later stage.
I now turn to the merits of the case. The plaintiffs pleaded the agreement submitting the dispute to arbitration, exhibit E, dated the 21st October, 1933, the award of the arbitration published on the 26th February, 1934, exhibit D, demarcation of the boundary as laid down in the award, and the defendant crossing the said boundary into the plaintiffs’
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land, entering upon the plaintiffs’ villages and farms thereon, and doing damage to the villages, farms and crops. The defendants in their statement of defence admitted the arbitration agreement exhibit E, the holding of the arbitration, and the publication of the award; they also admitted a survey and the fixing of pillars marked Nos. AA /K/1 to AA/K/10 indicated on Survey Sheet No. 134 (Abetifi) South East, and No. 137 (Afram) South West as alleged by the plaintiffs; and they also admitted that in 1954, they crossed the boundary so fixed and demarcated as alleged by the plaintiffs. They, however, denied that the line of the pillars was the boundary intended to be fixed by the award. Upon that defence the first question for determination is whether upon a proper construction of the award, the boundary laid down by the arbitrators is the line as alleged by the plaintiffs as AA/K/1—10.
The plaintiffs tendered exhibit D as the award published. It was submitted for the defence that exhibit D is fictitious, because it talks of plans and maps when in fact there are no such plans and maps attached; and that exhibit O the plan produced by the Chief Survey Officer could not be the plan which should be attached to exhibit D, because that plan exhibit O was made in 1935 as confirmed by exhibit N, while exhibit D was signed in 1934. Further, it was submitted that the contents of exhibit D are contradicted by paragraph 18 of the report exhibit 4 dated the 27th March, 1934, which the arbitrators submitted to the government on their work, and therefore exhibit D is fictitious.
The first observation to be made is that the defendants tendered a document exhibit 5 which they alleged is the genuine award. That document exhibit 5 is identical, word for word, with exhibit D. Therefore if exhibit 5 is genuine, exhibit D must also be genuine.
Clause 7 of the arbitration agreement indicates that the demarcation and survey of the boundary should take place after the arbitrators had made the award, it is therefore impossible that the plan and the award should both be ready at the same time. In this connection we may refer to paragraph 20 of exhibit 4, the report which the arbitrators sent to the government. There the arbitrators said: “20. After discussion with the officer-in-charge, Topo Branch, Survey Department, we have indicated salient points of our boundary by ten pillars marked AAK 1—10. These will enable the Cadastral Branch to cut the boundary and draw the plan provided for the Indenture. When we erected these pillars, representative of Kwahu stool were present, but to our regret no Akyem Abuakwa representative accompanied us.”
The submission that paragraph 18 of the report exhibit 4 shows that the arbitrators did not lay down any boundary between pillars AA/K/3 and AA/K/10, but merely decided that they would later divide that area equally between the parties is also not borne out by the said paragraph 18. This is what that paragraph says:
“18. Whatever truth there is in the Begoro story that at one time Nteso people were their only neighbours in this area, there is little doubt that prior to 1917 both Begoro and Kwahu Tafo people hunted over it and Mankrong was established as a Kwahu town. At this late date it is impossible to determine exactly what other places were occupied prior to 1917. We have therefore awarded Kwahu the land to which they proved their right by peaceful occupation and divided the remainder equally. It is impossible to make a division, as we have done, giving each party a fair share of good and bad land, without declaring many Kwahu farms, and farms made by Krobos, with the permission of Kwahu Tafo, to be on Begoro land. The land we have chosen involves as little disturbance as possible having regard to a fair division, and we hope that the present occupants will approach the owner of the land and receive just treatment.”
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Then followed paragraph 20 headed “Declaration” which reads as follows: “20. After discussions with the officer-in-charge, Topo Branch, Survey Department, we have indicated salient points of our boundary by ten pillars marked AAK 1—10. These will enable the Cadastral Branch to cut the boundary and draw the plan provided for the Indenture. When we erected these pillars, representatives of Kwahu stool were present, but to our regret no Akyem Abuakwa representatives accompanied us.”
So that the very documents exhibit 4 and exhibit 5 which the defendants rely upon, themselves fully corroborate the evidence, oral and documentary, produced by the plaintiffs that the boundary was laid down in the award, and that it was demarcated on the ground in the presence of the defendants.
We see in paragraph 18 of exhibit 4, the arbitrators commenting on the fact that the demarcation of the boundary had caused some farms in the area in dispute made by the Kwahus and grantees of Kwahu to fall on the Akyem Abuakwa side of the boundary, and recommending to such Kwahus or Kwahu grantees to attorn tenants to Akyem Abuakwa. Abundant oral and documentary evidence was led on behalf of the plaintiffs, which make it conclusive that a number of Kwahus who had made farms in the area now in dispute attorned tenants to Akyem Abuakwa; see letters exhibits F, G. and H written b3 the Omanhene of Kwahu, the co-defendants to the Omanhene of Akyem Abuakwa in respect of rents collected by the Omanhene of Kwahu from Kwahu subjects for the Kwahus who attorned tenant to Akyem Abuakwa. See also the tenancy agreement exhibit J.
Upon the consent of the parties, P.W.1, a licensed surveyor was appointed to plot out the line, as described in the award, on survey sheets Abetifi S.E. sheet 134) and Afram S.W. (sheet 137). He did so, and exhibit B is the result. The boundary is shown in purple. The plotting which P.W.1 so made corresponds exactly with the line as surveyed by a government surveyor in 1935 and indicated in the Cadastral Survey Record Book, exhibit N and delineated on exhibit O.
In my opinion the fact that a plan made on the award has not been signed by the arbitrators and the Surveyor-General, and attached to the award exhibit D as stated in exhibit F, the arbitration agreement, cannot invalidate the award. There is the demarcation of the boundary an unequivocal external act showing the boundary as described in the award exhibit D. In these circumstances the absence of a signed plan attached to the award is not fatal, it cannot invalidate the of award because the clear unequivocal and unambiguous identification of the boundary which the signed plan was intended to provide, is sufficiently provided by the demarcation on the ground in the presence of the parties coupled with the indication on the plan.
The defendants admit that they crossed the boundary fixed by the arbitrators and that they began to do so from 1954. They have therefore been on the land for about eight to nine years. It was submitted that in those circumstances they are protected under the Farm Lands (Protection) Act, 1962.20(20)
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The relevant sections of the Act are section 2 subsections (1), (2), and (4). Those three subsections are
as follows:
“2. (1) Where a farmer has, in good faith, at any time after the thirty-first day of December, 1940, and before the commencement of this Act, acquired any land by customary law or otherwise in a prescribed area for purposes of farming and has begun farming on that land within eight years from the date of such acquisition , this section shall, notwithstanding any defect in the title to the contrary, operate to confer valid title on such farmer:
Provided that the land in question had not been farmed by any other person for a period of eight years previous to the acquisition by the farmer.
(2) Where there are any proceedings for vacant possession on the ground that a person other than the farmer who acquired the land under the preceding subsection is entitled to the land or proceedings have been instituted or are instituted by such farmer on the ground that his title to the land is being in any manner challenged, the Court, where it considers that if this Act had not been passed a possession order would fall to be made by reason that the
acquisition taken by the farmer did not operate to confer on him the title to the land, but that to make an order would cause hardship and injustice to the person against whom it would fall to be made, 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.
(4) The provisions of this section shall not apply to any land in respect of which final judgment relating to title has been obtained.”
The first most important words are “has in good faith”, i.e. upon honest, though erroneous, belief. If it is shown that a farmer has no such honest belief or that he has every reason to know and believe that he had no title to the land, and yet he enters upon land by force and occupies and farms it, he will not be protected by the Act. To interprete those words otherwise will mean making the Act an instrument of fraud, such that if a wealthy man just walks in and occupies a fruitful land well knowing that he has no title of any sort to it, and that the same belongs to some poor man, the law will say the wealthy man should have the land: see Korley v. Bruce,21(21) where provisions of the Land Development (Protection of Purchasers) Act, 1960,22(22) which are similar to the provisions of the Farm Lands (Protection) Act, 1962, are discussed. Hence the further emphasis in subsection (4) of section 2, that the provisions of section 2 shall not apply to “any land in respect of which final judgment relating to title has been obtained.”
The words “final judgment relating to title” must be given an interpretation which is legally reasonable. In this sense it means final adjudication upon the title, a decision which can be effectively pleaded as estoppel per rem judicatam in bar to a subsequent suit. It therefore includes an arbitration award.
We will now apply those interpretations to this case. First, as to bona fides. The Omanhene of Kwahu is well aware that some of his subjects are tenants of Akyem Abuakwa in respect of the lands south of the demarcated boundary, and that he has been collecting tolls or rents from those subjects of his and paying the same to the Omanhene of Akyem Abuakwa: see exhibits E, F and G. Again, the third defendant and others are tenants holding land of Akyem Abuakwa in the area, south of the Kwahu-Akyem Abuakwa boundary. And there is the evidence that the Kwahus were warned as soon as they started the movements in 1954. Now, in those circumstances can it be said that their entry upon and farming portions of the land is bona fide?
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Then there has been the final adjudication upon the boundary between the two states, the arbitration award exhibit D or exhibit 5 which finally determined the title to the land now in dispute. For that reason the Act cannot protect the defendants.
Then there is the evidence that some of the lands in the reserve were released to some of the plaintiffs in the forest reserve enquiry: see for example the judgment of a West African Court of Appeal, exhibit P delivered on the 17th December, 1936. And there is the evidence, uncontradicted, that some of the plaintiffs had farms and villages on the land prior to the invasion by the Kwahus. Therefore the proviso to section 2, subsection (1) takes the case out of the Act.
The extent to which the Kwahus have occupied the land since 1954 is shown by the large number of villages they have taken possession of or built, as evidenced by the list exhibit 3 put in for the defence.
Now there is a solid mass of evidence, led by the plaintiffs, of the considerable damage and destruction caused by the defendants and their subjects to villages, farms, seasonal and permanent crops of the plaintiffs, and to timber; there is also the fact that since the Kwahu invasion of the land which began early in 1954, no more tolls have been paid by the Omanhene of Kwahu, the co-defendant to the plaintiffs on behalf of the Kwahus who became tenants of Akyem Abuakwa as a result of the settlement and demarcation of the boundary as by the award of 1934. There is also evidence of loss of tolls for snails. There is no doubt that the damage the plaintiffs have suffered at the
hands of the defendants is colossal. Of course, some of the figures given particularly as to timber might be somewhat exaggerated, but there is no evidence led by the defence to suggest that those figures are really exaggerated. On the other hand other figures given as to cocoa and seasonal crops appear rather moderate, but there again that is all the evidence there is.
It will be possible for the number of timber trees felled in the area to be ascertained, and their value assessed; so too tolls in respect of snails and other things would be special subjects for mesne profits. The same applies to the other items of special damages. The loss the plaintiffs have suffered of the rents alone from Kwahu tenants on the land at £G300 per annum, for the period 1954 to 1962, eight years, works out at £G2,400 which is £G400 more than the figures claimed.
The plaintiffs having satisfactorily proved their case are entitled to judgment. There will be judgment for the plaintiffs and the co-plaintiffs against the defendants and co-defendant jointly and severally for:
(a) declaration that the boundary fixed by the award of 1934 and demarcated, and as delineated on exhibit O made by the Government Surveyor in 1935 and exhibit B made by Mr. Hansen, licensed surveyor, upon an order of the court for the purposes of this case is the boundary between the stool lands of Akyem Abuakwa and the stool lands of Kwahu;
(b) recovery of possession of, and ejectment of the defendants and co-defendant, their agents, subjects, tenants and licensee; from any portion of the land south of the said boundary;
(c) £G2,000 special damages for trespass;
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(d) injunction restraining the defendants and the co-defendant, their agents, subjects, tenants and licensees from crossing the said boundary into the plaintiffs’ land, or in any manner whatsoever interfering with the plaintiffs’ ownership, possession and occupation of the land;
(e) accounts of mesne profits; with costs which I fix at 1,000 guineas inclusive.
DECISION
Judgment for the plaintiffs and co-plaintiff.
