Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 6TH MAY, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
This is an appeal from a judgment of the Akyem Abuakwa Native Court “A” delivered on the 12th day of February, 1957.
The claim was as follows:
“The plaintiffs are joint owners of all that piece or parcel of land situate, lying and being at Kronkronso Begoro, and bounded on one side by Kwakoi’s property, on one side by Forest Reserve, on one side by Begoro-Werobeng foot path and other other side by Forest Reserve. That defendant has been disturbing the occupation of plaintiffs by indiscriminate removal of foodstuffs etc. from the above described land without the plaintiffs’ due permission, knowledge and consent and therefore claims £100 damages for such trespass. The plaintiffs further claim an order of the Court for perpetual Injunction restraining the defendant, his agents, labourers and workmen from further entry into the land to abate future trespass.”
It is common ground between the parties that some thirty or more years ago two groups of people, namely, the appellants’ group from Mampong and the respondent’s group from Larteh, jointly purchased a large piece of land from the Ohene of Begoro, who is the Bumkuhene of Akyem Abuakwa. Subsequently, the land sold to them was declared a forest reserve area, and another piece of land, of which the land described in the Writ of Summons forms a part, was given to the two groups in replacement of the former piece. Thereupon the fourth (4th) appellant, a surveyor, acting upon instructions given to him by one Adufo, a duly authorised representative of all the purchasers, apportioned the land among the purchasers and demarcated the share of each one of him.
The Mampong group were dissatisfied with the division and requested that the land be re-apportioned; they then went upon the portion already given to the respondent, for the purpose of the re-apportionment, but before then the respondent had already cultivated his said portion into farms. The respondent took action for trespass against those who so entered upon his portion of land, including the appellants in this case; but he lost the action both in the Native Court and in the Land Court. In dismissing the respondent’s appeal Korsah Ag. C.J. (as a he then was) concluded his judgement as follows:-
“In my view the representatives of the purchasers were entitled to enter the land with a surveyor to demarcate it for the purpose of sharing it according to each person’s contribution. In so doing, they did not commit any trespass. If there had been evidence of
[p. 216] of [1959] GLR 214
wanton damage the plaintiff might have been entitled to recover the value of the property so damaged. In fact no evidence of damage was adduced”.
Earlier, he had found that the members of purchasing parties did not contribute equal amounts towards the purchase price, and that the re-sharing of the land was agreed to by the respondents.
The Akyem Abuakwa Native Court “A” dismissed the claim now made by the present appellants (the Mampong group). It has been submitted on their behalf that the Native Court failed entirely to direct themselves on the judgement of the Native Court dismissing the present respondent’s claim in the former suit for damages for trespass, and the judgment of Korsah Ag. C.J. upholding that decision; and that, in view of this non-direction, the appeal should be allowed.
The criticism is well founded; nowhere in their judgement is it shown that the Native Court directed their attention to either of those two judgements. But for misdirection to be a ground upon which an appeal should be allowed, it must be shown that it has occasioned substantial miscarriage of justice. That is the test which I have to apply.
The claim being for damages for trespass, the plaintiffs cannot succeed unless they are able to prove that they were owners in possession of the land in dispute, and that their said possession has been disturbed. A judgment that they are entitled to enter upon land for the purpose of sharing it is not proof that the appellants were in possession of the land described in the Writ of Summons. Nor would the decision that members of the two purchasing groups contributed unequal amounts towards the purchase price of the land, or that all members of the groups agreed to the re-sharing of the land, prove any issue material to the case now before this Court. In those circumstances, it cannot be said that the misdirection complained of has resulted in any miscarriage of justice.
For a claim in trespass to succeed, the area trespassed upon must be identified with certainty. In this case, a certain area of land is described as the area trespassed upon; the acts of trespass alleged are indiscriminate removal of foodstuffs, etc., from the said land. But the evidence of the plaintiffs and their witnesses show that the foodstuffs, etc., were taken from a particular farm cultivated by the respondent, and that the action was brought because the appellants claim that the said farm had become their property by reason of the re-sharing of the land. That evidence does not identify the land described in the Writ of Summons with the particular farm.
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There is abundant evidence, supported by the evidence of the appellants themselves and their witnesses, that with the full knowledge of the appellants, the respondent, immediately upon the first sharing, began to cultivate the forest, employing labour (including one of the witnesses for the appellants) to fell the large trees on the area, and it was not until after four (4) years, when he had developed the particular farm at considerable expense to himself, that the appellants requested the re-sharing of the land; meanwhile some of the appellants had alienated to other people portions of the land allotted to them at the original sharing. Upon that evidence the Native Court held as follows:-
“The plaintiffs’ own witness Oteng admits that from where the defendant removed the foodstuffs belonged to himself because when the farm was being made he Oteng was employed by the defendant to fell the large trees for £8. Besides defendant has spent large sum of money to cultivate this land and under no circumstances should plaintiffs who had sold their portion to Kwasi Donkor for £950 interfere with his occupation.”
Moreover, the evidence of the 2nd appellant, who spoke on behalf of himself and of all the other appellants, shows that while all the purchasers, including the respondent, agreed to the original sharing of the land it is only by implication that he says the respondent agreed to the re-sharing. He said “we jointly engaged the surveyor with defendant to share the land on the first occasion. The defendant acquiesced in the second employment of the surveyor to re-share the land.” But all the other evidence shows that the respondent resisted the attempt to re-share the land.
The following pieces of evidence, given by the 2nd appellant, are also material to the issue of the trespass-
“Where the defendant trespassed by removing foodstuffs according to the first sharing belonged to him,
but now is within our portion…..This land had not been cultivated when we first shared it……..The
defendant had caltivated his portion before we re-shared it. A portion of his farm went into our land after the second sharing. The defendant was absent when we shared the land and a portion of his farm went into ours. I went and told him on instructions of our leader that we shared the land and portion of his farm had gone into ours. He said nothing and I left him. The foodstuffs were removed from that portion of his farm which went into ours, during the re-sharing.”
In such circumstances I agree with the Native Court when they said:-
“After the 1st sharing if the plaintiffs were not satisfied they should have informed the defendant and his people earlier of their
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intention to have the land re-shared. They should not have waited for several years after the defendant had spent a large sum of money to cultivate his portion before they forced the re-sharing of the land upon him.”
The proper inference to be drawn from the evidence of the 2nd appellant, quoted above, is that the appellants have never been in possession of the land, but they claim to be entitled to possession by reason only of the re-sharing. It would be against all principles of equity and natural justice to deprive the respondent of the farm made by him in such circumstances, and to vest it in the appellants. Consequently, since the appellants were not in possession of the farm at the time the respondent took the foodstuff from it, and since it is inequitable that they in preference to the respondent should have that farm, the appellants have failed to prove any violation of a possessory right, or right to immediate possession. Therefore, in my opinion, the Native Court properly directed themselves in dismissing the appellants’ claim.
DECISION
For these reasons I dismiss the appeal, with costs fixed at £13 10/-, including 10 guineas Counsel’s costs.
