Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 10TH SEPTEMBER, 1959
Before: OLLENNU J.
2nd and 3rd defendants in person.
JUDGMENT OF OLLENNU J.
(His lordship referred to the pleadings and continued:-)
The plaintiff s first witness (a daughter) under cross-examination by counsel for the first defendant stated that her father the plaintiff had apportioned the land in dispute, and had made a gift of various portions of it to his children. She stated further that the area which the first defendant is alleged to have trespassed upon is within the portion granted to her (the witness) by the plaintiff. The plaintiff s second witness, his son, also said under cross-examination that the plaintiff had given portions of the land to his children, but had reserved a portion for himself. This witness said that the portions which the second and third defendants are alleged to have trespassed upon are within the area which the plaintiff had reserved for himself.
Learned counsel for the first defendant submitted that in view of the evidence given by those two witnesses the plaintiff is shown to have no locus standi, particularly as regards his claim against the first defendant, because, having granted the whole of his right title and interest in the land to his children, there is nothing left for him in the land over which he could litigate. Counsel submitted that the plaintiff s claim should be dismissed on this ground.
This submission would have been very forceful were the law which I am called upon to administer in deciding this suit purely English law and nothing else. But all the parties to this suit are natives, and Section 87(1) of the Courts Ordinance expressly lays down that:
“Native law and custom not being repugnant to natural justice, equity, and good conscience … shall be deemed to be applicable in causes and matters where the parties thereto are natives and particularly, but without derogating from their application in other cases, in causes and matters relating to the tenure and transfer of real and personal property… “
By native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor, where the title of the grantee to the land is challenged, or where the grantee’s possession is disturbed, to litigate his (the grantor’s) title to the land; in other words, to prove that the right, title or interest which he purported to grant was valid.
The judgment of Petrides C.J., delivered on the 1st July, 1941 in suit- No. 26/1940, entitled Odonkor & anor. v. Allotey & anor. (and two other suits consolidated), is in point. In the course of that judgment the learned Chief Justice said:
“It has been contended that A. B. Nartey is not entitled to maintain an action for declaration in respect of land he sold before action was brought. I am satisfied after listening to the evidence of the Asere Mantse, he can do so according to Native Law and Custom. There is evidence which I accept that Nartey was asked by his purchasers to sue for a declaration of title. I hold that Nartey can, in the circumstances, sue in respect of the plots he sold before action . . . In my view either the original owner of the property or the purchaser can maintain an action in respect of it.”
In practice, the vendor and the purchaser sue jointly.
That declaration of the customary law on the point of procedure was not challenged when the case went on appeal to the West African Court of Appeal as shown in the judgment of that Court (7 W.A.C.A. 160). The judgment of the West African Court of Appeal in Fiscian v. Tetteh (2 W.A.L.R. 192), where the point is
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dealt with indirectly, should also be referred to; and see Majolagbe v. Larbi & ors. (p.190 of this volume).
I hold therefore that the plaintiff is properly before the Court.
Some confusion arose as to the identity of the land claimed by the plaintiff. This was created by the following factors:-
(a) there were slight differences between the dimensions of the land as described in the writ of summons, and those as delineated on the plan attached to the plaintiff s statement of claim;
(b) there was a difference in the position of the land in relation to “Grid Lines,” as delineated on
(i) the plan attached to the statement of claim;
(ii) that attached to the plaintiff s Deed of Conveyance Exhibit “B”, and
(iii) that on a lay-out plan of the area, (Exhibit “3”) produced by a witness for all the defendants, Nii Adama Asua II, an elder of the James Town Stool.
The Court therefore caused a survey to be made of the piece of land which each of the parties claims to have been granted to him or her, and a plan made in consequence of that survey. The plan produced in consequence of that survey was admitted in evidence, and marked Exhibit “X”.
The location of the land as shown on the plan attached to Exhibit “B” was superimposed on Exhibit “X”, and the plan “X” was also superimposed on the plan Exhibit “3”. This operation made it obvious that the land claimed by the plaintiff, as pointed out at the locus, is in a different geographical position from that shown on the plan attached to his Deed (Exhibit “B”), and from that on the lay-out plan (Exhibit “3”).
In view of these prima facie differences and confusion, learned counsel for the 1st defendant submitted that the plaintiff had failed to identify the land he claims with the certainty that the law requires of a plaintiff, and that his claim should therefore be dismissed. In support of that submission counsel cited the following cases:
(1) Frimpong II v. Brempong II (14 W.A.C.A. 13);
(2) Emegwara v. Nwaimo (14 W.A.C.A. 347) and
(3) Amata v. Modekwe (14 W.A.C.A. 580).
Two outstanding features of the case are
(1) that the land as shown on all the various plans has precisely the same shape, no matter the geographical region in which it
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is placed on the plan, and no matter the difference in some of the dimensions; and
(2) as will appear again presently, the important witnesses called for the defendants admitted that plaintiff occupies, and has for a long time occupied, a particular piece of land in the locality.
In such circumstances it is the duty of the Court, if it is to do justice, not to dismiss the plaintiff s claim by reason of the prima facie confusion, but to ascertain from the evidence as a whole (both oral and documentary) whether the actual area of land in respect of which the plaintiff sued has been identified with certainty, and whether the pieces, or any of the pieces, of land which the defendants have entered upon fall within that land in the possession and occupation of the plaintiff. In other words, the Court must ascertain from the evidence whether there is land sufficiently identified at the locus by the plaintiff as being in dispute between him and the other parties, and in respect of which a Court can give effective judgment.
I have carefully examined the evidence as a whole, and particularly that of the surveyor. He gave evidence of pillars, the ages of which he was unable to tell. He spoke of the situation of the ruins of a swish building, pointed out to him by P.W.2. and indicated by him on the Plan Exhibit “X”. He gave evidence of the close similarity between the shape of the plaintiff s land as shown to him at the locus and delineated by him on Exhibit “X”, and the shape of the plaintiff s land as shown on Exhibit “3” produced on behalf of the defendants. I have come to the definite conclusion that the land in respect of which the various plans were made is one and the same piece of land, and not different pieces of land. I am satisfied that the land which the plaintiff pointed out at the locus to the Surveyor as the subject matter of his claim, and which the Surveyor delineated in blue on the plan Exhibit “X” and on the lay-out plan Exhibit “3”, is the land in dispute.
Learned counsel for the first defendant submitted that if there is certainty about the identity of the land in dispute (which he says there is not) then since both the plaintiff and the first defendant rely upon the James Town Stool as their root of title, and since his client’s deed is prior in time, it must take precedence over the deed of the plaintiff. But in the first place the first defendant’s document, though prior in time as regards execution, is unregistered, whilst that of the plaintiff is registered; the first defendant’s deed cannot therefore have priority over the plaintiff s document.
But that is a minor point. The most important point is that both the plaintiff and the first defendant rely principally upon a grant made in accordance with customary law. They used the deeds only as documentary evidence of the grant already completed under customary law. Here I must say that I accept the evidence of the plaintiff that, when he noticed that the original grant made to him in accordance with customary law had not been recited in the deed Exhibit “B”, he requested Nii Kofi Akrashie II to have the correction made, and took steps in that behalf. Nii Kofi Akrashie, however, was destooled before he could do so.
Conveyance of land made in accordance with customary law is effective as from the moment it is made. A deed subsequently executed by the grantor for the grantee may add to, but it cannot take from, the effect of the grant. Thus, a stool can by deed convey to a person the absolute ownership in the land which it originally granted to that person by customary law, and thereby exempt the grantee from the performance of customary services which might normally have been due from the grantee to the stool; but such a deed cannot operate to revoke the grant made by custom.
The plaintiff, as proved by the witness for the defendants Nii Adama Asua II, is a member of the royal family of James Town, the stool family. He, as a subject of the said stool, is entitled by customary law to occupy any vacant portion of the land of the said stool. This he can do either upon actual or implied grant.
Apart from the evidence led on behalf of the plaintiff that the stool granted the land to him over 30 years ago, there is evidence of first defendant’s grantor, James Quarshie Danso (D.W.1), that he first went to the area in 1923, and found Amaatse (P.W.3) already farming in the area. Amaatse then showed him the plaintiff s land, which formed a boundary with the land which Amaatse was farming. Amaatse said that the land now claimed by the first defendant is a portion of the land which Amaatse had been farming, and which, Danso said, was subsequently granted to him (Danso) by the stool.
Nii Adama Asua II also deposed that in 1956, when the plaintiff approached Nii Kofi Akrashie II and his elders for a document, the plaintiff said that he wanted the document because he had been farming that land for a long time.
Thus, even if the plaintiff s possession and occupation of the land was not upon actual grant, his possession and occupation as a subject of the stool is good title, and it will take precedence over any grant which the stool may purport subsequently to make of any
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portion of that land. By customary law a stool has no right to grant land which is in the occupation of a subject to any one-subject or stranger-without the consent and concurrence of the person in possession.
I am satisfied upon the evidence that the land in dispute as delineated in blue on the plans Exhibit “3” and Exhibit “X” was granted to the plaintiff over 30 years ago by Nii Kojo Ababio IV, as stated by the plaintiff. I also accept the evidence by the plaintiff and by each of his witnesses (particularly P.W.3, Amaatse) together with the evidence of Danso (first witness for the first defendant) that the plaintiff has been in continuous possession and occupation of the land for over thirty years; that is to say, from a date previous to the year 1923, when Danso first went to the land.
Danso gave evidence that at the time he was granting to his niece (the first defendant) the land formerly occupied by Amaatse, he did not invite Amaatse or the plaintiff, with whose lands his said land marched, to be present and agree upon, the boundaries. This satisfies me that the first defendant did not know, and could not know, the proper boundaries between her land and the plaintiff s.
Nii Adama Asua II deposed that the area was laid out some time after grants had been made by the
stool, and that, as a result of the lay-out, new plots of land were given to former grantees in exchange for land already granted to them. In consequence, he said, a new area consisting of 14 plots (as appearing on Exhibit “3”.) has been allotted to the plaintiff in exchange for his original land, though the plaintiff had not gone to the stool to be shown that new area. Counsel submitted, therefore, that if any trespass had been committed by any of the defendants to the land granted by the stool to the plaintiff, the plaintiff cannot complain.
It is difficult to appreciate this argument. Once land has been granted to a person, it cannot be taken away from him and another piece given him in substitution without his consent. The grantor would be acting unlawfully if, without the consent of the grantee, he should grant the original land to another person, allocating another piece of land to the original grantee. And the party to whom a purported grant of such land is made would be guilty of trespass if he entered upon it without the permission of the original grantee.
The defence put up by the second and third defendants is simply that they occupied the land as grantees thereof from the James Town Stool. This defence cannot avail them so long as that portion of the land is not vacant stool land, but land already granted to the plaintiff, and in his possession and occupation.
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I am satisfied upon the evidence
(1) that the land in dispute edged Blue on the plans (Exhibit “X” and Exhibit “3”) is the property of the plaintiff;
(2) that the plaintiff has been in possession of it for over 30 years;
(3) that without the leave and licence of the plaintiff, and without any lawful authority, the first defendant entered upon that portion of it enclosed between the three yellow lines and portion of the blue line forming the southern boundary of the land;
(4) that the second defendant entered upon that portion of it enclosed by the three pink lines and portion of the blue line forming the eastern boundary of the plaintiff s land;
(5) that the third defendant entered upon the portion of it at the south-western corner thereof as is enclosed between the three green lines and portions of the southern boundaries of the land; and
(6) that each such wrongful entry was made whilst plaintiff was in possession.
There will therefore be judgment for the plaintiff for
(i) declaration of title against each of the defendants to the land described in his writ of summons and as delineated on the plan Exhibit “X”, and thereon edged in blue;
(ii) an order for recovery of possession against each defendant of that portion of the plaintiff s land wrongly occupied by her;
(iii) £10 general damages against each defendant separately for her trespass to the plaintiff s land, and
(iv) injunction against each of the defendants, their agents and servants, and each of their servants and agents, restraining them from going upon the plaintiff s said land, or on any portion of it, or in any manner whatsoever interfering with the plaintiff in his ownership, possession and occupation of the said land.
The plaintiff will have his costs against each of the defendants fixed as follows:
(1) 50 guineas inclusive against the first defendant;
(2) 40 guineas against the second defendant, and
(3) 40 guineas against the third defendant.
The assessor agrees with the judgment read.
