CONCESSION ENQUIRY (NO. 1120) (ACCRA) NMAKO SALT CONCESSION [1961] GLR 354

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 22ND JUNE, 1961

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) Tetteh Kwaku v. Kpakpo Brown February 21, 1910, unreported.

(2) Manche Kojo Ababio IV v. T.R. Quartey & Anor., unreported.

(3) Manche D.P. Hammond v. Mallam Barko & Anor. (1912) D. &. F `11-`16, 18

(4) Solomon v. Noye, May 25, 1880, unreported.

(5) Accra Water Works Acquisition (1918) F.C. Feb. ‘19, 64

(6) Stool of Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171, P.C.

(7) Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (1938) 4 W.A.C.A. 96; (1940) 6 W.A.C.A. 24.

(8) Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C.

(9) Ebu v. Ababio (1956) 2 W.A.L.R. 55, P.C.

(10) Payin II v. Anquandah (1947) 12 W.A.C.A. 284

(11) Foli v. Akesse (1931) 2 W.A.C.A. 46, P.C.

(12) Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24, P.C.

(13) Amodu Tijani v. Secretary, Southern Nigeria [1921] 2 A.C. 399, P.C.

(14) Nene Dake, Ada Manche v. Nartey Nyabu of Terkperbiawe Land Court, Accra, July 9, 1946, unreported.

(15) Harbour Works Acquisition, unreported.

NATURE OF PROCEEDINGS

OPPOSITION by the Sakumo Wulomo to the grant of a certificate of validity on the ground that he is the owner of the Sakumo lands, the subject-matter of the concession lease, and not the James Town Manche, the grantor.

COUNSEL

S. M. Cudjoe for the grantor.

E. Obetsebi-Lamptey for the opposer.

E. Akufo-Addo for the claimants.

JUDGMENT OF ADUMUA-BOSSMAN, J.

In this matter, notice of the concession was filed on the 30th July, 1959, by E. Akufo-Addo, Esq., counsel for and on behalf of a partnership firm engaged in the business of the manufacture and/or preparation of salt in Ghana, having the name and style Elmina Salt Company of Elmina – Ghana (which will be referred to as the claimants throughout this judgment). The concession is a lease dated the 15th June, 1959, expressed to be made between Nii Kojo Ashamanfro II, Dsasetse and Acting James Town Mantse, as lessor of the one part, and four Greek gentlemen merchants, Messieurs Constantine Alexis Panagiotopulos, Gerassinos Alexis Panagiotopulos, George Alexis Panagiotopulos and Lyrkourgos Alexis Panagiotopulos, all of Elmina in the Central Region of Southern Ghana, together trading in partnership under the firm name of

Elmina Salt Company of Elmina – Ghana, as lessees of the other part, whereby a piece or parcel of land situate and being at or to the north of the village of Wiaboman and Grefi in the Accra district and more accurately described in detail in the said lease, was demised by the lessor to the said lessees for the period or term of 99 years at the annual rent of £G100 for purposes of salt mining or salt manufacturing operations.

[p.356] of [1961] GLR 354

On or about the 15th October, 1959, subsequent to the filing of the notice of the concession, motion was filed on behalf of Nii Adja Kwao II, Manche of James Town, Accra, for an order substituting his name for that of Nii Kojo Ashamanfro II, as grantor of the concession, on the ground that by notice No. 48 published in the Ghana Gazette Extraordinary, No. 69 of the 1st August, 1959, his election and installation as Manche of James Town was formally acknowledged by the Government, and on the 30th October, 1959, a formal order substituting his name as grantor of the concession was duly made.

Thereafter on or about the 4th November, 1959, application was filed on behalf of Numo Kome Otsita II, Sakumo Wulomo, of Accra, for leave to oppose the grant of certificate of validity in respect of the concession on grounds set out in the application that: “(1) The land the subject-matter of the Concession is the property of the Sakumo Wulomo, caretaker of the said land on behalf of the Ga Manche’s stool.

(2) The James Town Alata Manche has no legal or customary right over the Sakumo area of land to warrant his leasing to any persons any portion of the said land for any purpose whatsoever.

(3) The concession contravenes the provisions of the Concession Ordinance, Cap. 136.”

On the 20th November, 1959, formal leave was granted to the Sakumo Wulomo to oppose conditionally upon his giving certain security for costs and thereafter having statement of claim filed on his behalf within 21 days. The conditions were duly complied with, and the statement of claim which was filed, as subsequently amended, was in the following terms: “(1) The opposer is the Wulomo (fetish priest) of the Sakumo river, wherein the great Sakumo fetish of the Ga people has its home and is worshipped.

(2) From time immemorial the Sakumo Wulomo has been the caretaker and in control of all the piece or parcel of land known as Sakumo lands for and on behalf of the Ga, Gbese, and Asere stools, that is to say, lands in and around the Sakumo River.

(3) The modes and times of fishing in the said river are regulated solely by the Sakumo Wulomo, and grants of land’s in and around the Sakumo River are made by the Wulomo who collects tolls and tributes from the inhabitants in the area.

(4) The grantor, the James Town stool has no land in the area, and has no authority to grant Sakumo lands – wherefore the opposer opposes grant of certificate of validity to the claimant.”

The statement of defence which was filed on behalf of the grantor, after making general denial of all the allegations contained in the statement of claim, save the allegation that the opposer is the Sakumo Wulomo, proceeded to set out the following averments: “(1) The grantor avers that the Sakumo fetish has its home at Sakumo Tsoshishi in Accra where it is worshipped.

(2) The grantor avers that the Sakumo Wulomo only worships the Sakumo fetish at Sakumo Tsoshishi, but has not got any lands at all around the Sakumo River or in the Sakumo area as alleged over which the Ga stools can appoint any caretaker.

(3) The grantor avers that the James Town stool is and has been the owner of the land around the Sakumo River and the bed of the said Sakumo River from time immemorial; and that part of the said land was granted to James Town stool [p.357] of [1961] GLR 354 subjects who founded the James Town villages of Tetteh-Ogbu, Mpoasem, Jonkobli, Dama, Aplaku, Bortey-Annorh, Kokobitey, Oshiyei, and Oblogo several hundreds of years ago, and the said villages have been and are still wholly occupied by James Town stool subjects who pay tribute to the James Town stool.

(4) The grantor avers that the regulation of fishing rights in the Sakumo River by the Sakumo fetish at Sakumo Tsoshishi and the collection of tolls and tributes from such members of the cult as reside in the Sakumo area, has nothing to do with the ownership of the land, but is purely a religious ceremony among members who belong to the Sakumo fetish cult.

(5) The grantor avers that the James Town stool is the owner of all lands around the Sakumo River and in the Sakumo area, and the only stool that can make a valid grant of any of the said lands.”

A reply by the opposer was then duly filed whereby issue was joined generally on the allegations in the statement of defence. In addition, the following plea of estoppel was added by leave by way of amendment, to wit:

“In further reply to paragraph 5 of the statement of defence the opposer say that the grantor is estopped by his claim in the case of Kojo Ababio IV (plaintiffs) v. T.R. Quartey and Kwatei Kojo (Defendants) from making any claim to the land south of what he claimed to be the common boundary with the defendants in that case”. Before the enquiry could come on for trial an amendment of the grantor’s statement of defence was filed, introducing the following legal defences as additional paragraphs of the statement of defence:

“(7) That the opposer is estopped by his conduct and laches in the case of Kojo Ababio IV v. T.R. Quartey and Kwatei Kojo and by the decisions in the Accra Water Works Enquiry, and the case of Tetteh Kwaku v. Kpakpo Brown and the case of Manche D.P. Hammond v. Kojo Ababio IV and others.

(8) The opposer is estopped by record from opposing this concession by reason of the judgment in the Accra Quarrying Acquisition case (Land Acquisition No 2/49) to which the Sakumo Wulomo was a party.

(9) The opposer is estopped by record from setting up his claim by reason of the decision in the Leper Settlement Acquisition Case (Land Acquisition No. 3/50) in which Nii Amaasah Nikoi Olai, Manche of Asere Djorshie was a claimant on behalf of the Asere Djorshie family and the Sakumo family of which the Sakumo Wulomo is a member and which family the Sakumo Wulomo is representing in this enquiry.

(10) The opposer is estopped by record from setting up that he is caretaker of the lands for the Ga stool by reason of the decision in the Accra Water Works Acquisition case of which the Ga Manche was a party, and also by the decision in the Accra Stone Quarrying case (Land Acquisition No. 2/49) and the Leper Settlement Case (Land Acquisition No. 3/50) in which the lands were being claimed as the property of the Sakumo family of Asere Djorshie”. As emerges from the pleadings above reproduced, the issue for determination is the ownership of the land around the Sakumo Lagoon, including the lagoon itself, as between the principal Ussher Town stools of the Ga, Gbese, and Asere Manchemei on the one hand, and the James Town (Alata) Manche’s stool on the other hand. It appears to be another phase – and one devoutly hopes it will be the last phase – of an unfortunate dispute about Ga lands situate west of the Korle Lagoon which has lain dormant between the parties since about the early part of the current century, commencing with the case of Tetteh Kwaku v. Kpakpo Brown1(1) in which Sir Brandford Griffith, C.J. gave an adverse decision against [p.358] of [1961] GLR 354 the Ussher Town chiefs on the 21st February, 1910, which will be dealt with later in this judgment.

The concession land is shown in the concession plan admitted in these proceedings as exhibit Z. For the purpose of this enquiry, however, counsel for the opposer has tendered Topo sheet No. 59A admitted and marked exhibit B. which shows broadly the Sakumo land claimed by the opposer in this enquiry, and also the relative position or situation of the area of land which was the subject-matter of the action Manche Kojo Ababio IV v. T.R. Quartey and another2(2) in relation to the said Sakumo land. It will be observed that the area of land claimed as Sakumo land comprises substantially the area of land which is covered by the Sakumo Lagoon at its highest water mark with a limited area of adjoining or contiguous surrounding land on which are sited certain cottages, hamlets, and/or villages most of which are fishing villages. Counsel for the opposer tendered a second Topo Sheet No. 59B admitted as exhibit D which shows the same area of Sakumo land with the cottages, hamlets and/or villages thereon, more clearly depicted, and with the whole area edged in green colour. It will be noticed further that Topo Sheets No. 59A and 59B, which are identical, are limited in scope and do not cover or show the whole area of land from the Korle Lagoon in Accra westward past the Chemu Lagoon (about which so much evidence was given by witnesses for both parties) right up to the Sakumo Lagoon. Accordingly, I have found it necessary to introduce a Topo Sheet covering the wider area which I have proprio motu but with counsel’s consent marked ZZ, and to which reference can be made to facilitate understanding of localities which will be mentioned in this judgment. It now appears to be necessary, as well as more convenient and logical, before turning to consider the merits of the respective cases of the parties, to consider firstly the pleas of estoppel raised by the parties. The opposer pleads:

‘that the grantor is estopped by his claim in the case of Kojo Ababio IV (plaintiff) v. T.R. Quartey and Kwatei Kojo (defendants) from making any claim to the land south of what he claimed to be the common boundary with the defendants in that case”. The plea seems to be based upon a plan made for the trial of the action mentioned, Manche KojobAbabio v. T.R. Quartey and Kwatei Kojo a copy whereof was tendered and admitted as exhibit E, and the statement in the reply as to what the grantor’s predecessor “claimed to be a common boundary with the defendants in that case”, appears to be an allusion to the southern boundary of the parcels or plots respectively claimed by the parties in the action, which, on the face of the plan is marked and described as “Common boundary of both parties”. Below it to the south, the land is described as “Sakumo Plains”. But it is difficult to see how any estoppel can arise from the circumstance that the parties in that old case agreed that one boundary of the respective areas which each of them wasbclaiming in that case happened to coincide or tally. It will be observed that the other boundaries to the west, north, and east, are conspicuously at variance, and it would seem as though the surveyor [p.359] of [1961] GLR 354 was merely stressing the point that it was only at the south that the boundaries of their conflicting claims coincide. The plan cannot amount to an admission that the area indicated by Manche Kojo Ababio as “Marko land” was the full or whole area of “Marko land” or to an admission that when the plan indicated the land to the south of that then in dispute as “Sakumo Plains” it belonged to the Sakumo Wulomo, and Manche Kojo Ababio had no claim to it. I am unable therefore to see any substance in the plea of estoppel raised on behalf of the opposer. Passing on then to consider the plea of estoppel raised in paragraphs 7, 8, 9, and 10 inclusive of the statement of defence filed on behalf of the grantor, it seems only necessary at this stage to say that while the circumstances of each of the actions and/or proceedings pleaded undoubtedly appear to be very relevant and material to the determination of the main issue or question of ownership, in no single instance does the plea of estoppel raised appear to be well-founded. The reason is that the piece or parcel of land edged in green colour in exhibit D the subject-matter of this enquiry does not appear to have been involved in or formed the subject-matter of any of those previous actions, and/or proceedings pleaded in the said paragraphs 7, 8, 9, and 10 inclusive of the statement of claim. I turn now to the consideration of the respective cases of the parties, and firstly to that of the opposer.

What might be called the traditional evidence on which the case was based, was put forward by four principal witnesses, namely:” (a) Daniel Otoo who described himself as Okyeame (linguist) of the Sakumo Wulomo (first witness); (b) Numo Komey Otsiata II, the Sakumo Wulomo himself (second witness); (c) Boitono Borquaye who described himself as Okyeame of the Gbese stool (22nd witness); and (d) Okyeame Yarboi who described himself as Okyeame of the Asere stool (27th witness). It is necessary to examine their respective evidence to ascertain what in substance is the traditional basis of the opposer’s claim to ownership of the land in dispute. The material evidence of David Otoo elicited by questions during his examination-in-chief was as follows: “Q. You know the land the subject-matter of the concession?

A. Yes.

Q. Whose land is it?

A. It belongs to the Sakumo people. The Sakumo Wulomo is the caretaker for the Ga, Gbese and Asere stools.

Q. How did it become the land of the Sakumo people?

A. I was told that when the Gas (Accra) were on the Okaikwei Hill they were then worshipping the Sakumo fetish. And when they migrated south to Accra area they still continued to worship the Sakumo fetish, and the land was given to them by these stools mentioned”. The striking feature about the evidence above reproduced is the fact that it does not attempt to account for or explain how the three stools, the Ga, Gbese and Asere stools were supposed to have acquired the land before giving it to the Sakumo Wulomo. Under cross-examination the witness was examined and answered as follows:

“Q. You agree that before the Gas came down from Ayawaso they worshipped the Sakumo fetish?

A. Yes, that is so.

[p.360] of [1961] GLR 354

Q. I put it to you that the Sakumo Wulomo was just the priest in charge of that purely religious matter?

A. I don’t agree. The priest had to walk and discover the land on which the river flows”.

By this latter answer therefore the witness would appear to suggest that the Sakumo Wulomo journeyed and wandered along in the traditional manner of a migrating personage in ancient times and discovered the land in dispute. That is obviously in glaring conflict with his own evidence earlier in examination-in-chief that the land was given to the Wulomo to look after, and the witness thereby gives one the impression that he did not really know on what basis or grounds he was founding his claim at all. The rest of his evidence concerns the occupation of the land in dispute and this will be dealt with in detail later in this judgment. The next witness, the Sakumo Wulomo himself, does not even attempt to give any evidence as to the traditional origin of his stool or family’s claim to the land in dispute. He began his evidence by stating that he was the opposer, and was then asked to describe the land which he claimed and which he described as follows:

“It starts by a Fetish Grove called `Torgbonaa’ along the top of Chemu Lagoon, then along to another

Stream called `Tettey-Manfoh’ then along to Gbegbey, Gbegbeyseh, Damah, Jonkobri, Mpuasem and all the villages around the banks of the Sakumo River”.

He was then asked if he could name the villages, and he named sixteen villages, mostly those shown appearing in the Topo Sheets exhibits B and D and then added: “there are headmen there, people to whom we send in matters that concern us.” In the course of his further examination-in-chief he was asked the question: “The suggestion is that as far as the land on which the Sakumo River flows is concerned, you have nothing to do with it? His answer was: “That’s not correct. It is with the land that I worship the fetish. The whole land throughout the course of the river belongs to Sakumo priest’s family and the Manchemei”. Neither in his further evidence-in-chief nor his cross-examination did he attempt to explain how by tradition either the Manchemei – the Ga, Gbese and Asere Manchemei – or any of them either individually or collectively, or his family, came to acquire the alleged ownership of the land in dispute. The next material witness Boitono Borquaye (22nd witness) gave the following explanation as to the origin of the alleged ownership of the three stools when he was asked and answered as follows:

“Q. (Per counsel) – Can you tell us how it came about that this land became the property of these three Manchemei?

A. I was told they became owners because they were the first arrivals.

Q. (Per curiam) But why that small bit only? Why did not they take the whole land to the Obutu boundary?

A. Strangers came to lodge there and they gave some to them (the strangers).

Q. (Per counsel) Why do you call this land Sakumo land?

A. Because the land is around the Sakumo River. When the river is full the water spreads out on to the surrounding land. When anybody wants a bit of that land he approaches the Sakumo”.

[p.361] of [1961] GLR 354

According to this witness then, the Ga, Gbese and Asere Manchemei acquired the land in dispute because they were “the first arrivals” in Accra, and although they had given to strangers who had come to lodge there some of the land they acquired as such “first arrivals”, this land around the Sakumo Lagoon or river has been under the control of the Sakumo Wulomo who makes grants of portions to persons requiring such portions. Finally the fourth material witness Okyeame Boye (27th witness) gave evidence that he had been told something of the traditional history of the Sakumo land, but he did not condescend to impart that traditional history to the court. His evidence was as follows:

“I know the land called Sakumo land. I have been told something of the traditional history of the land.

The Asere Manche, together with Gbese and Ga Manchemei own the land and it is looked after for them by Sakumo Wulomo.” He was then asked to describe the land by boundaries and he did so. He then testified about villages on the land and litigations which he knew of concerning neighbouring land but not the land in dispute, and about the Sakumo Lagoon being a fetish owned by the Asere Manche but in the worship of which the Ga and Gbese Manchemei join or assist the Asere Manche. He concluded his evidence-in-chief with the statement that he had not been told that any of the villages which were mentioned belong to the James Town Stool.

From this review of the evidence of the principal witnesses for the opposer, it would appear that the only one of them who offered any rational explanation of the traditional origin of the alleged ownership or title of the stool – Ga, Gbese and Asere stools – to this land in dispute, was the 22nd witness, Boitono Borquaye, Okyeame to the Gbese stool, who explained that the origin, according to tradition, of the alleged ownership or title of the stools was based on the fact of their being the “first three arrivals” in ancient Accra town.

We turn then to the case of the grantor. It was put forward by Shippi Adama Asua II who deposed that he had represented the grantor’s stool in a previous acquisition proceeding, Re Land for Leper Settlement which was not far from the land the subject-matter of this enquiry, and that the grantor stool had been successful as against the other claimants, including the Sakumo Wulomo the opposer in this enquiry, as well as one of the parties whom he now claims to represent, namely the Asere Manche. Shippi Asua II did not give any oral narrative of the tradition of the grantor’s stool and the traditional basis of his claim to the land the subject-matter of the enquiry. He, however, tendered in evidence proceedings of former actions in the Supreme Court in which the said tradition of the founding of the stool and the traditional history of the stool’s acquisition of interests in lands west of the Korle Lagoon in Accra town were narrated and had been accepted by the court. The first of the said previous actions was Suit No. 43/08 Tetteh Kwaku v. Kpakpo Brown3(3), the judgment in which was tendered on behalf of the grantor and admitted as exhibit G9. It is of decisive importance in that, in this major action, the interest of the Ga, Gbese and Asere stools, the principal stools of Ussher town, as against the interest of the grantor’s stool, was litigated. That litigation to my [p.362] of [1961] GLR 354 mind is so vital and of such pre-eminent importance, that I make no excuse for making citation of and incorporating substantially the major portion of the illuminating judgment of the learned Chief Justice in this judgment as follows:

“The Plaintiff in this case is a man from the Abola quarter of Kinka formerly called Dutch Accra, and since 1868, Ussher Town. The defendants are all of them from the Allata quarter of Engrishi (English) or

James Town. During the late plague (1908) the Ussher Town people were ordered to evacuate their houses and go further inland to the north of the town, whilst the James Town people were ordered to proceed to Korle Hill, the other side of the Korle Lagoon. The Plaintiff, being Fisherman objected to going inland and asked the Ga Manche for permission to erect a building near the sea on the other side of the Korle Lagoon. The Ga Manche summoned a meeting of the other Manches of Accra, including the person alleged to be in charge of the Akumaje stool but excepting the Manche of Allata and permission was given to the plaintiff to build on the other side of the lagoon. As soon as the Plaintiff began to erect his buildings the Allata Manche sent to him to ascertain by what right he was building. The messages of the Allata Manche were couched in ordinary polite terms but Plaintiff’s replies were not courteous. The Allata Manche communicated with the Ga Manche and the matter was referred to the District Commissioner of Accra, but Plaintiff continued building. The Defendants and others therefore razed the

Plaintiff’s buildings to the ground. There are two questions for the Court . . .“The second is whether the Plaintiff was entitled to erect a building on the land in question without first obtaining the consent of the Allata Manche. I will proceed to deal with the second question. The tradition seems to be that the Aseres of Ussher Town were the first occupants of Accra. In early times the Sempes and Akumajes appear to have lived amongst the Aseres; some trouble however arising they separated themselves from the other inhabitants of Accra and located themselves on the other side of the Korle Lagoon. Subsequently, they returned to this side of the Lagoon but left a strip of bush between themselves and rest of Accra; the boundary was near where the Wesleyan Chapel now stands. It was after their return from across Korle Lagoon that the English came to settle at and built James Fort; that is clear as the English paid for the land on which the Fort stood, and I doubt whether that would have been so had they been on the other side of the lagoon. With the English came Witcha Kojo and his people and to Witcha Kojo the Sempes gave the land on which the Allata Manche’s house now stands. As to what took place during the next two centuries there is no direct evidence, but in 1866 we find James Town an entity no doubt owing allegiance to the Ga Manche, but yet separate from the rest of Accra; we find that the descendants of Witcha Kojo’s people have become one of the Ga tribes under the style of the Allatas. We find that the Allata Manche is so much the most important Manche in James Town that he is termed and regarded as the King of James Town . . .

“In 1880 came the case of Solomon (King of James Town) v. Noye. The whole proceedings have not been put in evidence but it is clear from the portion put in that Solomon the Manche of Allata was claiming certain land called Marko a long distance beyond the Korle Lagoon. The Plaintiff Solomon claimed the land as the property of the James Town Stool, i.e. generally for the James Town people; Noye alleged that the land was the property of the Asere tribe, and Akrama the Asere Manche came forward to support that claim. The question was whether the land belonged to the James Town people or to the Asere Stool. Mr. Papafio a respected elder, gave evidence in favour of the Asere Stool; so did

Akrama the Asere Manche and so also did Badu the Manche of Akumaje Stool. The judgment in the case shows that Mr. Freeman had been on the land for 20 years and had never heard of the Asere claim to the land; furthermore that the Dutch had once claimed the land as being attached to the Ussher Town Stool but that the claim had been resisted and then abandoned. This judgment shows that 30 years ago the Allata Manche, representing the whole of James Town claimed land to the [p.363] of [1961] GLR 354

West of the Korle, that for 20 years the Asere Manche did not disturb Mr. Freeman who held under the Allata Manche as representing James Town, that the Akumaje Manche recognised James Town did own land other than the land given to Witcha Kojo, and that the Dutch authorities after setting up a claim to land on the West of the Korle as being attached to the Ussher Town Stool relinquished the claim … “There are also some important considerations to be taken into account. First it is admitted for the plaintiff that the Allatas, Sempes and Akumajes were until quite lately united as one …

“Secondly, Counsel for Plaintiff did not always take the same line as to ownership of the lands beyond the Korle lagoon. At first it was maintained that the lands had originally belonged to Asere and that therefore they still remained the property of that tribe; this was the view put forward by Manche Akrama in the Noye case and supported by the late Mr. Papafio and by Manche Badu of Akumaje. At a later stage Counsel recognising that it was impossible in the present day to contend seriously that all the land on the other side of the Korle belonged to Asere, admitted that the land in question belonged to the Stools of Sempe and Akumaje, and it is implied that the lands in question belonged to Sempe and Akumaje because the two tribes formerly crossed the Korle and lived on that side of the Korle. Thirdly, it appears that there are only two Ussher Town people on the lands in dispute and that they deemed it necessary to seek the permission of the Allata Manche before going on the land. Fourthly, J. A. Mills’ land was granted to him by the Allata Manche, the Sempe Manche, and the representatives of Akumaje, and their elders, the matter passing through the hands of the Allata Manche. Fifthly, the witness Nunu who in my opinion represents the Akumaje quarter far more than Akrong, declares that the lands belong to all three of the James Town quarters. All these facts satisfy me that until quite lately it has been recognised amongst the quarters of Accra that James Town consisting of Allatas, Sempes and Akumajes possessed land on the other side of the Korle Lagoon. In a case of this sort I am not much concerned as to how this possession came about. Until comparatively recently all the land around and about Accra and the other towns was waste land, people dared not live outside towns in unprotected villages as they would have been in great danger of capture by marauding natives. Questions of ownership of land were probably never raised unless some Europeans wanted a piece of land whereon to build a Fort or Factory and as the Forts and Factories were always built close to some town, there could have been rarely any question as to whom such land belonged. In the early days I doubt whether the Aseres would have claimed any land, except what was quite close to their quarter; there was no need to claim any land, it was common property. We see what happened with respect to the land immediately adjoining the Sempes; although the Aseres were the earlier settlers it was Sempes who gave the land for James Fort, because that land was nearer Sempe. Assuming that it be said that Sempe gave the Fort land not because it was nearer Sempe, but because it was a Sempe Fetish rock, that argument would not apply to the sales or gifts by Sempe to the Wesleyans and to Swanzy and others; the land so given being in immediate proximity to Sempe was regarded as peculiarly Sempe land. Land at a distance would be looked upon as common land. The owner, if the question happened to be raised, being ordinarily the nearest Stool. The land on the other side of Korle would have been looked upon as such common land, but as it was nearer the James Town quarters than the Ussher Town quarters, it would have been regarded as more the property of James Town than of Ussher Town. The fact that James Town was English and Ussher Town Dutch would give emphasis to this view; so that when the Dutch Commandant put forward the claim to Marko land on the ground that it was attached to the Asere Stool, he saw that his claim was stale and not one that he could press. I am of opinion that for the past 50 years and probably much more, it has been generally recognised by the Accras that James Town people own land on the other side of Korle Lagoon.

That I think is sufficient in the particular circumstances of this Colony to confer ownership as between natives. Where there is so much doubt, so much uncertainty, so much indefiniteness, and where land has until recently been practically of no value all that the courts can do and what they ought to do is to accept accomplished facts, whatever may have been the state of things two hundred years ago. I am satisfied that it has been

[p.364] of [1961] GLR 354 now for many years recognised that James Town collectively owns land on the other side of Korle.

“The case may be stated very briefly as follows:-

“The Aseres were the first occupiers of Accra therefore they were originally recognised as the owners of all the land round about Accra; then the Sempes and Akumajes separated themselves from the Aseres amongst whom they had come to live and located themselves west on the other side of Korle lagoon, therefore they were recognised as the owners of certain lands on the other side of Korle which used, up to that time to be regarded as Asere land (this plaintiff admits); then the Sempes re-crossed the lagoon and took up their quarters between the Asere and the Korle lagoon therefore they were recognised to be the owners of the contiguous lands which had up to that time belonged to Asere (this plaintiff admits); then the Allatas, Sempes and Akumajes united under British protection, and two centuries after the Allatas came, we find the Allata Manche recognised as paramount chief of James Town claiming and holding and giving and permitting the farming and occupation of land on the other side of Korle …

“In giving judgment for the Defendants I desire to point out that my judgment is only with respect to the spots of land immediately in dispute. I am very far from saying that all the land to the west of Korle is the property of James Town as I can easily conceive of a state of facts which would show that any particular land or tract of land had been retained by the Ussher Town Stools even though it was on the Western side of Korle”.

As already mentioned earlier, this judgment exhibit G9 has been pleaded as operating to estop the opposer from claiming ownership of the land the subject-matter of the enquiry. But as I have ruled, it cannot be held so to operate to estop him because the area of land the subject-matter of this enquiry was not involved in that former action. It seems to me that the concluding portion of the learned Chief Justice’s decision that “In giving judgment for the Defendants, I desire to point out that my judgment is only with respect to the spots of land immediately in dispute,” fortifies my ruling. Nevertheless there cannot be any doubt that in so far as certain material issues of fact raised in this instant enquiry are identical with questions of fact raised and decided between the same parties in the former action, the opposer would now be gravely affected by what was decided in the former action. He is not, and cannot be technically estopped. But it is clear he would find it almost impossible to prevail upon the court to take a contrary view of what was solemnly decided in the former action. One such material question of fact, it seems to me, is the allegation now made on behalf of the opposer that by reason of the parties whom he represents being the “first arrivals” they therefore acquired ownership of the area in dispute in this enquiry.

On that issue or question of fact, it seems to me that the opposer and the parties he represents, all of whom were identified in interest with the plaintiff Tetteh Kwaku in his case against Kpakpo Brown and others, are almost estopped from alleging contrary to the decision in that case, that by reason of their being the “first arrivals” simpliciter they acquired ownership of the area in dispute or any other area or parcel within the whole stretch of land from the Korle Lagoon westward to the end or limit of the Ga boundary with the Obutus on the west. At any rate the veracity of their version of the tradition that their priority of arrival or settlement in Accra town gave them prior ownership or title to lands west of the Korle lagoon westward to the Ga boundary-including this area in dispute-as against the grantor’s stool, is certainly decisively discredited. [p.365] of [1961] GLR 354

Tetteh Kwaku v. Kpakpo Brown was followed by another suit Manche D. P. Hammond v. Mallam Barko and Manche Kojo Ababio IV 4(4) concerning Lartebiokorshie land. The writ has not been tendered in evidence but the depositions of the Asere Manche explaining his claim on the basis of the same traditional history as was given in Tetteh Kwaku v. Kpakpo Brown and claiming again that all the stretch of land from the Korle lagoon westward to Langmah (the hill which by repute marks the boundary of the Gas and Obutus) is attached to his stool, (see exhibit G16). The counter depositions of the James Town Manche claiming on the basis of the same traditional history as in the former action have been admitted as exhibit G17. It is admitted on behalf of the opposer that the then Ga Manche was associated with, and gave evidence for, the Asere Manche although his depositions have not been tendered in these proceedings. In the course of his judgment (exhibit G16) Smyly, C.J., rejecting the traditional basis of the plaintiff

Manche Hammond’s claim, said as follows:

“This action is brought by Manche D. P. Hammond as Manche of Asere against Manche Kojo Ababio

IV and Chief Mallam Barko for a declaration of title to certain lands on the South of the Oblogo road which is marked Green on the Plan put in evidence and forms part of the Lartebiokorshie lands marked on the Plan in Pink . . .

The facts are very short and not in dispute, Chief Mallam Barko, a Hausa Chief obtained permission from the Defendant Manche Ababio IV, Manche of the Allatas, to occupy the land in dispute with his followers – Mr. Emmanuel William Quartey Papafio objected and induced the Asere Manche to sue for a declaration that these lands are lands attached to Asere Stool, although he asserts that by long use and occupation he has freed them from being stool lands. The Plaintiff claims that as the Aseres came first the whole of the lands of Accra belong to the Asere Manche and that the Nikoi Olai or Asere Stool takes care of the whole of the lands of Accra, the elder Stool Okaikwei which the Ga Manche now claims to occupy having been removed.

The Defendant Manche Ababio on the other hand claims that he as Allata Manche is entitled to all the lands west of a boundary starting east of the Wesleyan Chapel along Otu street inland to Dom. Both these claims have been put forward before in the case of Tetteh Kwaku v. Kpakpo Brown and others.” The learned Chief Justice then proceeded to examine the traditional evidence put forward by the plaintiff and his witnesses and found the whole so conflicting that he declared as follows:

“As tradition is so inconsistent and affords so little help, the real question left to me is to come to existing facts and see whether the plaintiff has made out such a title by occupation as distinct from the alleged historical title-as could justify me in granting him a declaration of title to the land in dispute”. Again therefore, in that action a year or two subsequent to Tetteh Kwaku v. Kpakpo Brown the court in respect of land situate west of the Korle lagoon, was unable to accept the tradition, identical with that now put forward in our instant case, that: “as the Asere came first the whole of the lands of Accra belong to the Asere Manche; and that the Nikoi Olai or Asere Stool takes care of the whole of the [p.366] of [1961] GLR 354 lands of Accra – the Elder Stool of Okaikwei which the Ga Manche now claims to occupy having been removed.”

About the time that the action Manche D. P. Hammond v. Malam Barko and Manche Kojo Ababio IV was in progress, another action commenced which is perhaps far more relevant and material to our present enquiry, in that it related to land called Marko (Nmako) land which is shown, as mentioned earlier in this judgment, as being contiguous to the concession area the subject-matter of this enquiry. Indeed the north-western portion of the concession area was included in the area of land the subject-matter of that action; see exhibit B, the green dotted area intersecting the north-western portion of the pink dotted area. That was the case of Manche Kojo Ababio IV v. T. R. Quartey and Kwatei Kojo5(5). The written judgments of Smyly, C.J. and Porter, J., two members of the full court which gave the final decision in the appeal have been compiled into a booklet and admitted as exhibit

G8. In the judgment of Corter, J., how it came about that there is no written judgment of the trial judge available has been explained as follows:

“This is an appeal remitted by the Privy Council. The action is an action for trespass. It is brought by Manche Kojo Ababio IV suing as Manche of James Town, against T. R. Quartey and Kwatei Kojo and claiming damages for trespass said to have been committed to certain land near Oblogo and the ferry that runs across the river at the spot. The defence sets up a rival title in 2nd Defendant who claims under the Will of one Oblogo Lamptey, to be the owner of the ferry and the lands in dispute. Both Defendants deny Plaintiff’s title. The action was heard by Mr. Justice Gough in the Divisional Court, Accra, and on the 13th January, 1913, judgment was given for Plaintiff against the Defendants jointly and severally for £G100 damages and costs. Owing to his having been ordered home by his medical advisers, Gough, J. was unable to write a judgment at length giving his reasons. This was unfortunate. From the judgment of Gough, J. the Defendants appealed to the Full Court, who without going into the merits non-suited the Plaintiff on the ground that he was not the proper person to sue in the capacity disclosed on the Writ, but they considered that he might have the right to sue in some other capacity. From this non-suit by the Full Court the Plaintiff appealed to the Privy Council, and on the 16th May, 1916, the Privy Council set aside the judgment of the Full Court and remitted the case for re-hearing on the grounds that: Although they have not formed an opinion that the judgment upon the merits was wrong upon the materials before them, it is impossible for them to say that this judgment (of the Full Court) should remain and it is essential that the matter should be re-heard . . . . In their Lordships’ opinion the real matter in controversy between the parties is whether or not the Plaintiff is the Manche of James Town in the District of Accra … If the Plaintiff is in possession or has any interest, whether personal or representative, entitling him to sue in respect of the alleged cause of action, his right to succeed ought to be determined in this action and all the necessary and formal amendments of the proceedings should be allowed, to enable this to be done’.” The Full Court therefore re-heard the remitted appeal on the evidence on record and gave judgment upholding the plaintiff’s claim that he was Manche of James Town and that the defendants had committed trespass on James Town land and dismissed the defendants’ appeal. [p.367] of [1961] GLR 354

Smyly, C.J’s. decision on the question of the plaintiff’s right to sue in the capacity disclosed in the writ was as follows:

“In my opinion the fact of the Sempe’s opposition and the supposed opposition of the Akumaje’s or that they have sided with the Ussher Town people since 1906, cannot once a joint ownership is established, re-establish the condition of things which existed prior to the arrival of the Allatas in 1642 or oust the Manche of James Town from the position and rights in property which his predecessors had obtained by their wealth and bravery, namely that of being joint owner and trustee of the James Town lands one and undivided for the three quarters of Alata, Sempe and Akumaje; and I hold that as one of three joint owners he was entitled to sue on behalf of himself and his co-owners even if they declined to join him. Porter, J. after referring to the judgment of Griffith, C.J. in Tetteh Kwaku v. Kpakpo Brown,6(6) other proceedings of previous litigations by the James Town-Alata Stool, Rev. Reindorf’s History of the Gold Coast and Asante and the writings of certain other authors, concluded as follows: “In the face of all these authorities it is not possible to accept the Defendants’ story, that Wetse Kojo and his successors were merely caretakers or land agents for the Sempes and Akumajes, and I think that Plaintiff is what he describes himself to be, the Manche of James Town, and for the purpose of this action he is correctly described.” The learned judge then proceeded to deal with the trespass the subject-matter of the action and said as follows:

“I will now consider the question of possession of the land and ferry in dispute. There is no denial that Oblogo Lamptey was in actual possession, and the question is, was he in possession for King Solomon the predecessor of the Plaintiff? If that Lamptey Yaw who gave evidence in the case of Solomon v. Noye (Exhibit ‘F’) is the same person as Oblogo Lamptey then there can be no doubt first that Lamptey was in possession for Plaintiff’s predecessor in title and, secondly that the defence which is based on the Will of Lamptey must fail”.

He proceeded to examine the available evidence and then concluded as follows:

“I am of opinion that Oblogo Lamptey is one and the same person as the Lamptey Yaw who gave evidence in the case of Solomon v. Noye (Exhibit ‘F’) and this being so there can be no doubt firstly that he was as he says in possession of the lands and ferry in dispute for the Plaintiff and his predecessor”. With regard to the action Solomon v. Noye6(7) on which the decision in Kojo Ababio v. T. R. Quartey and another (as appears from the concluding portion of the judgment of Porter, J. above reproduced) was so much based, it will be remembered that Griffith, C.J. also had cause to place considerable reliance on it for in the course of his judgment in Tetteh Kwaku v. Kpakpo Brown he furnished a good many of the details of that case, although he stated that the whole proceedings had not been put in evidence before him (vide his judgment cited earlier in this judgment). Further very necessary details about that case were supplied by Smyly, C.J., in the course of his judgment in Kojo Ababio v. T. R. Quartey with which I am for the time being dealing, when he cited the concluding portion [p.368] of [1961] GLR 354 of the judgment of Marshall, C.J., in that Solomon v. Noye case given on 25th May, 1880 as follows:

“The judgment of the court is that the Defendant has no right or claim to this land or to any portion of it as belonging to himself or to Chief Akrama and that the land belongs to the James Town Stool now occupied by Plaintiff”.

Counsel for the grantor has expressed reliance on the judgment in the Accra Water Works Acquisition7(8) case also in which the trial judge Smyly, C. J., found as a fact that the James Town (Alata) stool by its subjects had had such exclusive occupation and use of that area of land, the subject-matter of that acquisition, that that stool must be held the owner of the land and entitled to the compensation therefor. The decision was subsequently confirmed by the Full Court8(9) and the Privy Council.9(10) The land the subject-matter of that acquisition is situate still further west of the land involved in the Manche Ababio v. T. R. Quartey case, and nearer the Langmah hill forming the Ga-Obutu boundary, and that case is therefore not quite so relevant as Manche Ababio v. T. R. Quartey.

The position therefore is that so far as the area of this Marko (or Nmako) land is concerned, from as far back as 1880, the claim of the Asere stool to ownership of the said land, and adjoining lands within reasonable distance as to be capable of control from the said Marko land, by reason of the traditional claim of being the first to arrive or settle in old Accra Town, has been consistently rejected by the Supreme Court. It follows therefore that any claim to ownership and/or title to this land the subject-matter of this enquiry, which land, on the evidence of even the opposer’s own witnesses, is hemmed in on all sides except the seaward side by admittedly James Town lands, must fail and be rejected by the court. As pointed out by Lord Cohen delivering the judgment of the Judicial

Committee of the Privy Council in Stool of Abinabina v. Enyimadu,10(11) the court can and has accepted claims to ownership and/or title to lands “solely on the basis of traditional evidence”; (see Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu11(12) and Kuma v. Kuma12(13). In so far therefore as the opposer’s claim is based on the traditional evidence of “first arrival” of the Asere, Ga and Gbese stools as compared with the grantor’s stool, I am satisfied that the claim fails completely. On the contrary, I am satisfied with and accept the competing tradition of the grantor’s stool which was accepted and used as the foundation for awarding him ownership and/or title as representing the three stools of Alata, Sempe and Akumaje, to the Marko (Nmako) land when it was the subject of litigation in the case Kojo Ababio v. T. R. Quartey. [p.369] of [1961] GLR 354

But the opposer did not base his claim on the traditional evidence only. Indeed, it was only in the course of the evidence adduced on his behalf that the claim to ownership on the basis of the traditional story that the Ga, Gbese and Asere stools, which gave the land and lagoon to the caretakership of the Sakumo Wulomo, were the “first arrivals”, was put forward. That allegation was not pleaded in the statement of claim. What was expressly pleaded in the statement of claim was a claim to ownership by reason of occupation and/or possession and control, in terms already reproduced earlier in this judgment.

Counsel then continued in argument: “So to come to some decision, one would have to deal with the actual fact of occupation as it exists at the moment or when the litigation started.” The point, I think, has to be conceded; and the court indeed has very much in mind the observations of Mr. de Silva during delivery of his judgment for the Judicial Committee of the Privy Council in the case of Ebu v. Ababio13(14) as follows: “It was argued that the respondent could not succeed without a finding in his favour on the traditional evidence. In his Statement of Claim the respondent set out not only what, according to him, were the historical facts relating the original occupancy of the land but also alleged that from time immemorial possessory rights have been exercised’ by the respondent and his predecessors. The evidence led by him as to acts of possession had been accepted. Traditional evidence has a part to play in actions for declaration of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.” While maintaining due appreciation, however, of the legal position that it is possible on the evidence of possession alone, without any evidence of tradition, to obtain declaration of title, it seems at the same time very necessary to bear in mind the caution given by Verity, C.J. (Nigeria) in Payin II v. Anquandah14(15) that: “In this country where land may be in the occupation of persons who are not the owners but who for generations may have had rights of occupation as licensees or customary tenants or under other conditions known to local custom, the reversion nevertheless being in the owner, it is essential that the nature and origin of the tenure of the occupiers should be determined. Mere occupation even for long periods is not in itself sufficient to establish ownership. In Abotchie Kponuglo v. Adja Kodaja 2 W.A.C.A. 24 the Judicial Committee of the Privy Council … expressed themselves as being unable to agree with the Court of Appeal that the evidence of farming of parts of the disputed land is evidence of title to the whole. In Kuma v. Kuma their Lordships in regard to a similar dispute observed:- `It appears therefore that among the natives occupation of land is frequently allowed for the purpose of cultivation but without ownership of the land being parted with. The owner of the land being willing to allow such occupation so long as no adverse claim is made by the occupier; the occupier knowing that he can use the land as long as he likes provided he recognises the title of the owner… If the evidence as to occupation be considered with the caution which has been deemed essential by the Board in such cases as the present, it is in the opinion of their Lordships not inconsistent with the title of the plaintiff and it is by no means conclusive of the defendant’s title’.” [p.370] of [1961] GLR 354

In the light of the guidance by the passages from the judgments above referred to, let us now examine the occupational position as disclosed by the evidence of the parties. To do that satisfactorily, it seems necessary firstly to resolve the conflict of evidence between the parties concerning the villages which are admittedly on the land and to endeavour to determine from what quarters in Accra are the occupants of these villages, and the stools or persons to whom the villages have hitherto made acknowledgment of overlordship as the owners of the land they occupy. The case of the opposer has been that almost all the eighteen or so villages on the land are Ussher Town villages occupied by Ussher Town subjects who have all the time acknowledged the overlordship of the Sakumo Wulomo. His linguist and representative testified to that effect and thereafter four witnesses being persons of Ussher Town origin who are villagers have given evidence towards establishing that each of them has been in charge and control of a village in right of the opposer who has all along been recognised as owner of the land.

The villages, some of which might more appropriately be described as fishing hamlets are the following:

1. Fajiemohe – the first witness testified that he was a Gbese man and the present headman in control and that his late father lived there and he was born in the village and thinks he is about 80 years old; he is of the Sakumo family and has been occupying in right of the Wulomo’s family. He has never been told who founded the village.

2. Wiejoshie – the second witness testified that he was a Gbese man, that the village was founded by his grandfather who was succeeded by his father and now by himself as headman for the past twenty years; and that he and his people occupy in right of the Sakumo Wulomo and with him worship a fetish Ogbamey in the village.

3. Wiaboman – the third witness testified that he was a Gbese man, that his father lived in the village and he was born there and had himself been headman in control of the village for a long time occupying in right of the Sakumo Wulomo who assists them, the villagers, to worship the fetish of the village Bawale.

4. Grefi – the fourth witness testified that he was also a Gbese man, that the village was founded by his late father and that he has been the present headman for some considerable time and he and his people occupy in right of the Sakumo Wulomo who assists them to worship the two fetishes of the village.

5. Akweteyman – the fifth witness testified that he was an Abola man, that the village was founded by his grandfather who was succeeded by his father and then by himself about six years ago, and that he has been occupying in right of the Sakumo Wulomo.

[p.371] of [1961] GLR 354

6. Shiayena – the sixth witness testified that he was an Asere man and the village belonged to the Asere stool. He had lived there for the past 30 years as headman as his grandfather founded the village and was succeeded by his father and now by himself. He and his people occupy in right of the Sakumo Wulomo and they worship the Sakumo fetish.

7. Jonkobri – the seventh and eighth witnesses testified that seventh witness Mama Bozo (or Buzu) was the headman and had been so for the past 27 years, that the headman before him was one Buzu his father who was made headman by the Sakumo Wulomo, and that they acknowledge the Wulomo as the owner of the land.

8. Chokome – the eleventh witness testified that he, an Ewe man from Srogbe in the Anlo district, obtained the permission of the Sakumo Wulomo Nii Ogbamey and settled about 21 years ago on terms of paying £G20 for a season’s fishing, and that he was the headman of the village occupied only by Ewes without any Ga people.

9. Kle or (Kaley) – the twelfth witness testified that he was an Asere man and now the headman of the village in place of his father who was old and feeble; that the village was founded by a relative called Edusei Commey long dead, and that he and his people occupy in right of the Sakumo Wulomo.

10. Mpehuasem – the thirteenth witness testified that was an Abola man, that the village was founded by his grandfather Nii Akwetey succeeded by one Odartei, and now by him who has lived in the village for the past 50 years or so. He and his people acknowledge the ownership of the Sakumo Wulomo and share with him any monies collected from strangers who lodge there and do fishing.

11. Gbegbeyiserh – (indicated as Gbegbe in the Topo Maps) – the fourteenth witness testified that he was an Asere man, had lived in the place for 65 years and was the present headman. But he did not know who founded the village.

12. Mpuase – the fifteenth witness testified that he was an Asere man, and was born at the village about 70 years ago and that the village was founded by his grandparents, one Nii Adjei Obedekah of Asere and his wife Okonfo Aku of Sempe; that after Nii Obedekah the village was looked after by one Numo Okwei and after him by witness’s father Mensah Commey and now by himself.

13. Manfiomli – the sixteenth witness testified that he was a Gbese man who had lived in the village for a long time and is now the headman in control; that the village was founded by his late father who obtained the land from the Sakumo Wulomo, and that he and his people have been occupying in right of the Wulomo.

[p.372] of [1961] GLR 354

14. Damah (Damba)-the 25th witness testified that he was an Asere man who followed his father to live at the village about 50 years ago at a time when his grandfather called Ammah was then headman of the village, and that afterwards his father became headman and now himself. The village is occupied by Sempes and Labadis and members of his family. The Sakumo Wulomo sends to the villagers when there is any matter concerning the river-say someone had got drowned in the river-and the Wulomo has to perform purification ceremonies. The evidence of the villagers ought perhaps to be taken or considered together with the evidence of the linguist of the Sakumo Wulomo who gave evidence first on his behalf and testified concerning the villages as follows:

Q. Are there many villages on this land?

A. Yes – the following:

1. Gbegbe – Nshornah which belongs to Asere. The headman there is Atta Botchway.

2. Gbegbe – Yiseh which belongs to Asere, Gbese and Sempe. The head is Akotey … The villagers appointed him and he was presented to the Sakumo Wulomo.

3. Mpoase – the heaman there is Oku. The villagers nominated him but he was presented to the Sakumo Wulomo.

4. Damah – belongs to Sempe. The headman there was presented to the Sempe Manche.

5. Bogobri – also known as Jonkobri) The headman there is Mamah.

6. Sackahman – is another village – may be a Sempe village.

7. Tetteh-Ogbu – The village is named after the stream which is a fetish which we the Sakumo people worship. It was the Sakumo Wulomo who gave the place to some Ewes who founded the village; but they use seinenet which catches small-small (tiny) fishes in the lagoon, which we the Sakumo people have been objecting to. That has resulted in dispute between us and now they have not consulted us nor presented their headman to us.

8. Bortianor – the heads of three different quarters are there – Gbese, Ngleshie-Alata, and Sakumo people.

9. Tsokomey – the headman there is called Kofi Gagah. The village was made by the Ewe people who do seine-net fishing. They came and applied to the Sakumo Wulomo and permission was given them and they founded the village.

10. Faadjiemohey – the headman there is called Ogbamey Tetteh from Gbese.

11. Wiedjoshie – the headman there is Ayaifio Tetteh also from Gbese.

12. Manfiomli – the headman there is called Laryea, also from Gbese.

13. Shiayernah – there is an acting headman under Asere stool.

14. Mpehuasem – the headman is Odarkwei from Abola.

15. Keley – the headman is called Okoe Lamptey; it is an Asere village.

16. Wiaboman – the headman is Kumah; it is an Asere village.

17. Grefe – the headman is called Tetteh Nkpa; it is an Asere village.

18. Akoteyman – the headman is called Nitaku Kofi from Gbese. That is all the villages I came to know.”

In respect of some of the villages, the case made out by the evidence of the linguist and representative of the opposer and the actual occupants of the villages to the effect that they are villages occupied by Ussher Town people and generally recognised as Ussher villages with the occupants professing allegiance to the Sakumo Wulomo, was not subjected to any [p.373] of [1961] GLR 354 thing like serious cross-examination and appeared to have passed unchallenged. Counsel for the opposer has furthermore called attention to what appears to be some declaration against interest concerning those villages in the depositions of the late Manche Kojo Ababio in the Manche D. P. Hammond15(16) case, see exhibit G17, as follows: “The Ussher Town people who live West of the boundary are fishermen and live at Fana (the banks of the Sakumo). The sea does not reach their villages. I don’t know if they get permission or not to build.

They were there before I came on the Stool. I do not know whether there are many such villages. I have not been there. My elders told me there were Ussher Town villages there.”

Finally there was the admission of Shippi Asua when he was cross-examined and answered as follows:

Q. Did you deny that all the villages between the mouth of Sakumo River and the sea are Ussher Town villages?

A. No, they are all fishing villages belonging to Ussher Town individuals”.

In these circumstances I accept as established the occupation by Ussher Town people of the following villages: Tsokomey, Fadjiemohe, Wiedjoshie, Shiayena, Kle, Manfiomli, Wiaboman, Akweteyman, Mpehuasem and Grefi. With regard to the remainder of the villages on the land which were also claimed as Ussher Town villages occupied by persons professing allegiance to the Sakumo Wulomo, very cogent and strong evidence was adduced by witnesses on behalf of the grantor in opposition to that produced on behalf of the opposer to dispute the opposer’s claim that those are also Ussher Town villages in control of Ussher Town people professing allegiance to the Sakumo Wulomo. The villages in question are (1) Bortianor (perhaps the largest settlement on the land and really deserving the appellation of being a village), (2) Aplaku, (3) Tetegbe, (4) Sakaman, (5) Jonkobri, (6) Damah (Damba) (7) Mpuase, (8) Gbegbeyiserh, (9) Gbegbenshornah and (10) Grefi. The contest concerning the character of those villages marks an important and crucial point in this dispute as to the ownership of the Sakumo lands, since if the opposer succeeded in establishing his allegation that they were settlements occupied and controlled by people professing allegiance to him then he would have gone a long way towards establishing exclusive ownership of the whole land. It becomes necessary therefore to give the opposing evidence of the contending parties concerning them a little more careful examination and consideration. In embarking on that one immediately has to eliminate Damah and Sakaman which the Wulomo’s representative admit to be Sempe villages. Concerning Damah,ncounsel for the opposer adduced the evidence of the 25th witness Emmanuel Ammah who testified that he was from Agbon in Asere and had succeeded his father and grandfather as headman controlling the village. But when regard is had to his admission that the village is occupied by Sempe and Labadis and his family and that the Sempes had their headman there, a man called Adotey who died recently, then even without the grantor’s nineteenth witness’s evidence, I am satisfied the Wulomo’s representative’s admission is amply confirmed. There is also the evidence of the opposer himself that “Damah, as to which, when I was enstooled, I met an old Sempe man in charge thereof, but he died shortly, after”.

[p.374] of [1961] GLR 354

As, to Sakaman the opposer adduced no evidence of any resident from the spot to contradict the admission of the Wulomo’s representative and therefore on his admission alone, even apart from the evidence of the grantor’s thirteenth witness Aku Martha Commey who testified that her father Nii Sakah a Sempe man founded the villages, any claim to the village by the opposer, must be held quite unfounded. Then I think two other villages must be eliminated from the list, namely: Aplaku and Tette-Gbu, in respect of which the opposer was not able to call any resident of those villages.

Concerning Tettey-Gbu, I accept the cogent and unshakable evidence of the grantor’s eighth witness Sosu Gbertorwusu, the ninth witness Kwadjo Dorgoh, and the tenth witness Kwami Honu, completely. The suggestion of counsel for the opposer that they were tenants who because the opposer condemned their way of fishing in the Sakumo lagoon became embittered against him, loses its force completely when regard is had to the fact that the opposer has taken no steps to eject them as defiant and unsubmissive tenants all these long years when they have been disobeying him. Equally, I accept unreservedly the evidence of the grantor’s eighteenth witness Kweitse Narteh concerning Aplaku which was quite unchallenged. Next I think the village of Bortianor claimed by the opposer must be held to have been conclusively established to be the James Town Alata Manche’s village, not only because the opposer was unable to adduce the evidence of any resident from the spot to support his claim, but from the impressive evidence of the grantor’s fourth witness Addo Ayi, fifteenth witness Nii Kometey II who is today the admittedly officially recognised sub-chief of the James Town Alata Manche at the village (see exhibit G15) the sixteenth witness Tetteh Papplah-Bi-Tettey and the seventeenth witness Allotei Pappoe. We come next to Jonkobri and the opposer relies strenuously first on the proceedings exhibits A1 and A2, the court proceedings of King Tackie v. Bokobli. But a perusal of exhibit A1 shows clearly that it was about the mode of fishing in the Sakumo lagoon which was the subject of that action, and seems to confirm Shippi Asua’s evidence as to what was reported to have happened to cause the proceedings to be instituted. Exhibit A2 admittedly is about occupation of the village, but it is significant that the defendant in the action claimed the right to occupy through the grant of a former James Town Manche, that when he did that the plaintiff did not join the then James Town Manche to prosecute the action against both, and in the final result did not proceed to judgment against the defendant but agreed to go and settle with him out of court. The proceedings are inconclusive, and, if anything, more favourable to the grantor’s case than the opposer’s. As to the oral evidence of opposer’s seventh witness Mama Buzu (or Bozo) supported by that of his brother Issaka Hausa, it was quite incredible and nonsensical for Mama Buzu to say that he was appointed headman in the village by the present opposer whom he actually identified, and insisted after several questions to be the man who appointed him, when the opposer himself became Wulomo only about eight years ago. The witness having insisted that he was appointed headman 27 years ago for about the third or fourth

[p.375] of [1961] GLR 354 time, I asked him: “Then are you making a mistake that it was the man in court who made you the headman?” He persisted and answered: “No, I am positive it is this man in court who made me the headman”. His brother Issaka stated it was a former predecessor of the opposer, Wulomo Ogbamey Bibio who appointed him, (and that was after an adjournment), but I am satisfied he is not headman at all as testified by the unshakable evidence of grantor’s witnesses, Illo Jonkobri (fourth witness), Imoru Galladima (fifth witness) and, Yaya Musa (sixth witness) whose evidence I accept unreservedly. Counsel for opposer made great play of the fact that the late prominent and well known public figure Mr. Armah Kwantreng, a licensed surveyor, built a house in the village and worked there for a considerably long period without any protest from the James Town Manche, and had taken a lease, exhibit C, of the parcel which he occupied from the Sakumo Wulomo whom the opposer succeeded. But it does not appear as though Mr. Armah Kwantreng took the document very seriously, for he did not even stamp, let alone register, it. As to his occupying without apparent protest, his prominent position in the community was such that I doubt if any of the Ga divisional stools whose land Mr. Armah Kwantreng had occupied wrongly without permission would have ejected him. Some arrangement for him to continue in occupation was sure to be made. In this particular case the admissions of his labourer Issaka Hausa, eighth witness for the opposer, are very significant, for he was asked and answered as follows: Q. When you were working for Armah Kwantreng did you not know he surveyed for the James Town Manche?

A. No. I knew he did some survey for Sempe, James Town and Sakumo Wulomo. Q. While he was surveying, the James Town Manche and his elders used to come to him on the land?

A. Yes, that was so, and that was Nii Akrashie and his elders.”

It is hardly conceivable that the James Town Manche would have met Mr. Armah Kwantreng on the land and not come to some arrangement with him, if in fact he entered through the Sakumo Wulomo, and I prefer the evidence on behalf of the grantor that Jonkobri is a recognised James Town village. We deal next with Mpuase which is admitted by both sides to be connected in origin with a Sempe woman Okomfo Aku, a fetish priestess. Whereas the opposer’s fifteenth witness Armah Mensah testified that the village was founded by an Asere man called Adjei Obedeka supposed to be the woman’s husband, the grantor’s second witness Kpakpo Addo testified that it was the woman herself who founded the place specially for the purpose of having a secluded place to train her novices. From the evidence that the fetish of which the woman was supposed to be a priestess was Dade, a Sempe fetish, and that located in the village is the shrine of another fetish, the principal Sempe fetish Afieye, I am persuaded that the version that the village was the woman’s village rather than that of her husband is the more credible story. Then we come to Gbegbe or Gbegbeyiserh and Gbegbenshornah, two connected villages. As to these two connected villages the admissions under cross-examination of the fourteenth witness for the opposer Akwetey

[p.376] of [1961] GLR 354

Lamptey persuade me to prefer the evidence given by the grantor’s first witness Kpakpo Addo to the effect that he is in control of Gbegbeyiserh for James Town.

In the result the occupational position, as the same appears clearly and without any doubt at all to me from the evidence, is that whilst we have about ten fishing hamlets located in a row along the mouth of the lagoon between it and the sea as recognized Ussher Town villages and sites of occupation for the opposer, we have a slightly less number of settlements, more deserving however of the name of villages, spread or sited along the semi-circular boundaries of the area claimed, as sites of occupation for James Town subjects.

In the Privy Council case of Omanhene Kobina Foli v. Chief Obeng Akesse16(17), Lord Thankerton delivering the judgment of the Board, observed that:

“In questions of disputed ownership of land, occupation and possession of portions of the disputed area is not relevant evidence of title to the whole area, unless it can be reasonably attributed to a right to the whole area. The portions so occupied may be so numerous and so closely adjoining that they practically cover the whole area. No such conditions exist in the present case.” The observations appear to be particularly appropriate to the circumstances of our case, applicable to the opposer in so far as the occupation on his behalf along the seashore by the mouth of the lagoon cannot possibly be held to be “relevant evidence of title to the whole area” the subject-matter of the enquiry, and at the same time applicable to the grantor, in so far as ‘,the portions so occupied [are] so numerous and so closely adjoining that they practically cover the whole area”. Again in the Privy Council case of Abotche Kponuglo v. Adja Kodaja17(18) in which the plaintiff-respondent’s claim for damages for trespass and an injunction was held by Lord Alness who delivered the judgment of the Board to: “postulate, in their Lordships’ opinion that he is either the owner of Bunya land, or has had, prior to the trespass complained of, exclusive possession of it,” the learned Lord commenting on the occupational evidence, said as follows:

“The evidence regarding possession would seem to be, in point of fact, neutral. Both parties can lay claim to certain acts of possession within the disputed territory . . . But what seems quite clear-and it is decisive, in their Lordships’ view, of this part of the case-is that the respondent has failed to prove exclusive possession by him such as is necessary to instruct a title to claim the remedy which he seeks.” So that even if the row of Ussher Town villages by the seashore by the mouth of the lagoon has, as their headmen who gave evidence alleged, been founded by permission of the Sakumo Wulomo, the evidence of occupation adduced on his behalf has not gone to the extent of establishing that he has that exclusive possession which is necessary to invest title.

[p.377] of [1961] GLR 354

That brings us to a consideration of the question of fact whether the Ussher Town villages were founded with the permission and in right of the opposer’s predecessors. In considering that question, the fact that the heads of the villages who testified that their ancestors founded the villages with the permission and in right of the Sakumo Wulomo were so little challenged with any serious cross-examination, and the statement made by the late Manche Kojo Ababio in his evidence in the D. P. Hammond case that: “I do not know if they got permission or not to build”, almost persuaded me to believe and accept the story of the headmen. But then it occurred to me to pause awhile and consider the case of building with the Wulomo’s alleged permission against the background and in the light of an incident clearly established to have taken place in January, 1947, narrated by the fourteenth witness for the grantor the linguist of Bortianor, as follows:

“What happened was that Numo Ogbamey actually arrived in Bortianor village and said he was going to visit the shrine of the fetish Kremesu. We opposed him, saying we had appointed people to look after the fetish and he was not entitled to go there. He insisted on going and by the authority of the elders we stopped him. He returned to Accra and said he did not understand why he should be stopped if he.wanted to visit his fetish. Then he sued us”. It is the terms of the summons which the Sakumo Wulomo, Numo Ogbamey Mensah, predecessor ofnthe opposer herein, issued which is of such crucial and decisive importance. It was in the following terms (see exhibit G1 (a) ):

“Claim from the defendants jointly and severally a declaration of title why defendants should prevent the plaintiff, the Sakumo Wulomo from performing his duties at Bortianor in connection with the Fetish Kremesu-which duties are only vested in the Sakumo Wulomo, being owner of all that piece or parcel of land on which situate Bortianor and other villages as Sakumo fetish land”. The underlining of the words “being owner of all that piece or parcel of land on which situate Bortianor and other villages as Sakumo fetish land” is mine for emphasis and by way of drawing attention to the clear and unmistakable claim to ownership of the parcel of land on which is situate Bortianor and other villages as Sakumo fetish land. The further evidence is that upon the defendants

(being some of the elders of Bortianor) reporting the matter to their chief, the then James Town Manche Nii Ahuma Kojo, he got himself joined as a co-defendant to contest the Sakumo fetish land.

Thereupon the Sakumo Wulomo withdrew the claim for ownership of the land which he had so clearly made in his writ of summons, and sought and obtained an amendment of the summons to exclude the claim for ownership of the land which he had previously made, as disclosed in exhibit G1 (b). It seems to me that if ever there was a clear and unequivocal conduct on the part of the opposer’s predecessor-in-title forgoing all claims to ownership of the Sakumo land the subject-matter of this enquiry and admitting the title of the James Town Manche to the said land, the conduct disclosed in exhibits G1 (a) and G1 (b) was it. It could have been pleaded as estoppel per rem judicatam, but it has not been so pleaded. Nonetheless, in the light and against the background, of that decisive event or incident, [p.378] of [1961] GLR 354 it is impossible conscientiously to hold that the Sakumo Wulomo could have permitted the founding of the Ussher Town villages on the land. The proceedings, exhibits G1(a) and G1(b), resulting from the incident of stopping the late Numo Sakumo Wulomo Ogbamey Mensah proceeding from Bortianor to the shrine of the fetish Kremesu, are in my opinion, most crucial and decisive in the determination of the principal issue of ownership and/or title to the Sakumo land which is outstanding for determination in this enquiry. Those proceedings constitute a record of the decision of that issue of ownership adversely against the opposer’s immediate predecessor-in-title, and might well have been pleaded as estoppel per rem judicatam. It seems to me the late Sakumo Wulomo “put to the hazard” in that action the question of the ownership of the Sakumo land as between himself and the grantor’s predecessor and lost; and it is impossible for his successor now to claim the ownership which he admitted he was not entitled to. At any rate as a piece of evidence, it completely shatters the opposer’s claim to ownership of the Sakumo land.

In the final result therefore I am satisfied that factually and legally the ownership and/or title to the Sakumo land is not in the opposer as he claims, but rather in the grantor for the people of James Town, as was adjudged following his predecessor’s admission in the case Kojo Ababio v. T.R. Quartey and as expressly admitted by his representative in this action. The opposition to the grant of certificate of validity in so far as it is based on an alleged ownership of the Sakumo land cannot be sustained. But though, as I have held, the opposer has failed decisively in his claim to ownership or title of the Sakumo land in dispute, I do not think that conscientiously it is possible to go so far as to hold that on the evidence before the court, including even admissions by the grantor’s representative as well as his counsel, the opposer has not established any interest whatsoever cognizable by customary law in the land in dispute. It is my view that he has established interest cognizable by customary law in the land. What then is the evidence, and what the nature of the interest which he has established? It falls firstly to make a cursory examination of the evidence and particularly evidence savouring of or amounting to admissions on the part of the grantor’s representatives and witnesses. Commencing with the pleadings filed for the trial, it will be observed that on behalf of the opposer the following plea or averment was made:

“(1) The opposer is the Wulomo of the Sakumo River wherein the great Sakumo fetish of the Ga people has its home and is worshipped…

(3) The modes and times of fishing in the said river are regulated solely by the Sakumo Wulomo … who collects tolls and tributes from the inhabitants in the area.”

The averment made in reply in the statement of defence on behalf of the grantor was as follows:

“The grantor will aver that the regulation of fishing rights in the Sakumo river by the Sakumo Wulomo among members who worship the Sakumo fetish at Sakumo Tsoshishi, and the collection of tolls and tributes from such members of the cult as reside in the Sakumo area, has nothing at all to do with the ownership [p.379] of [1961] GLR 354 of land in the Sakumo area but is purely a religious ceremony among members who belong to the Sakumo fetish cult”.

It will be observed therefore that it is admitted on behalf of the grantor that the opposer controls the river or lagoon, as distinct from the land, even to the extent of collecting tolls and tributes from the inhabitants in the area. Moreover, although the averment in terms as above suggested that the opposer controlled and regulated the lagoon only for members who belong to the Sakumo fetish cult, a suggestion quite contrary to what is generally known in Accra, yet the evidence established that the control and regulation was unrestricted in the sense of being against any person who fishes in the lagoon, not necessarily “members of the Sakumo fetish cult”. So we find Kpakpo Addo, second witness for the grantor who testified that he was headman of Mpuase village and that he and his predecessors are in occupation in right of the Ngleshie-Alata Manche, and he was a member of the Apostolic Church, was cross-examined and he gave this material and significant piece of evidence: “Q. I put it to you that even though you say that you were headman of James Town (at Mpuase) you were taking instructions from the Wulomo?

A. Yes. in respect of the river in which I also fish.”

Later in re-examination he explained as follows:

“As from my infancy the method of fishing in the lagoon was by cast-net; of late however the Ewes and other strangers have been introducing a method of seine-net fishing whereby all the tiny fish in the River are brought along by the drag-net to the bank of the lagoon and there left to rot. That of course we are all against; and as the Sakumo Wulomo is the one looking after the river, when he authorised us to take steps to discourage that method of fishing, we all agreed and acted on it.” It might just be explained that one of the methods adopted to discourage those fishing in the lagoon with seine-net was to arrest the offenders in the name of the Sakumo Wulomo and seize any canoes and nets which the offenders may have, and the witness had joined in taking such steps against some persons and together with others had been arrested by government police whereupon they sent to the Wulomo to send someone to bail them. Another witness for the grantor, the fourth witness, linguist to the headman of Jonkobri when asked:

“Don’t you remember that when the water in the lagoon is at its highest peak, the Sakumo Wulomo imposes a ban to stop all people from fishing in the river,” he answered spontaneously: “Yes, that is true”. Another, the fifth witness, also of the Hausa settlement of Jonkobri who has lived there for about 21 years, was asked: “Have you seen anybody die in the Sakumo River?” He also spontaneously replied:

A. “Not actually seen, but heard of people drowning in the river. Then on such occasions I understand the priest stops people from fishing in the river for a while.”

“Q. Then what happens in your village?

A. If we do hear that ban is imposed, naturally we don’t infringe it until the ban is lifted.”

[p.380] of [1961] GLR 354

We turn next to Shippi Asua the representative of the grantor, and we find him questioned and giving perhaps the most significant answer of all, as follows:

“Q. You know the river Sakumo is accepted or regarded by the pagan element of the community as a fetish?

A. Yes, and the Sakumo Wulomo is the priest who officiates and performs rites for the fetish, and is the owner of the water of the lagoon”.

He was cross-examined by counsel for the opposer:

“Q. “Did you ever hear of a case between Manche Tackie Tawiah and a man called Bogobri?”

A. Yes-what I was told was that the Hausaman wanted to kill crocodiles in the Sakumo River, and the Sakumo Wulomo at the time complained that the man called Jonkobri was destroying his children in the river and Jonkobri was thereupon taken before the Ga Manche Tackie Tawiah and ordered to desist from further destruction of crocodiles in the river. Q. You agree that all fetish ceremonies in connection with the Sakumo Lagoon are performed by the

Sakumo Wulomo?

A. Yes.

Q. And in connection with his ceremonies there are periods when he bans people from staying on the

Sakumo land?

A. What I know is that when anybody is drowned in the lagoon, then he goes there to perform purification ceremony.”

Finally counsel for the grantor concluded his address as follows:

“I would point out that the river is from a religious point of view, regarded as a goddess and worshipped by a lot of Ussher Town people; and that accounts in some measure for the presence of followers of the fetish around and about the river. See for example his (the Sakumo Wulomo’s) amended claim in the Blassey case, exhibit G1A and G1B. I ask the court to hold that it is in that purely religious character that the opposer is connected with the river and some of the villages in which associated deities are located, and that, as admitted by him, by his withdrawal of his case (i.e. the part relating to ownership of the land) he has no ownership whatever of the land”.

To the above admissions concerning the Sakumo Wulomo’s control of the lagoon, should be added the declarations of the late Manche Kojo Ababio concerning the lagoon appearing in his depositions in the Manche Hammond’s case18(19) (see exhibit G 17) as follows: “The Sakumo is on James Town land. There is a ferry across it . . . . . My elders told me the ferry belonged to Ussher Town people. They did not tell me the lands about the ferry belonged to the Ussher Town people.”

What do all these admissions amount to? Surely this, namely that although the ownership of the land has been all along, without doubt, in the James Town Manche for the James Town people, nevertheless the Sakumo Wulomo has also all along been allowed or permitted to have occupation and possession and virtually complete control of the water or lagoon on it for the pagan religious purposes of the Ga people. What seems to have happened is that the grantor’s predecessors appear to have subscribed to the pagan belief or concept that the lagoon is either the physical symbol

[p.381] of [1961] GLR 354 of the Ga national pagan deity, Sakumo, or else that the lagoon waters constitute his place of abode or habitation, and they have accordingly from very early times, I imagine, acquiesced in the priest of the deity or fetish having control of the lagoon for the purpose of observing and performing rites and ceremonies and generally ministering to the deity or fetish. It cannot be very difficult to account for how this came about, i.e. the grantor’s ancestors acquiescing in the Sakumo Wulomo taking control of the Sakumo lagoon for religious purposes, when regard is had to the history so commendably outlined or sketched by Griffiths C.J., in Tetteh Kwaku v. Kpakpo Brown19(20) how the Sempes and Akumajes, through whom the grantor’s direct ancestors came to acquire interest in what are now known as James Town lands, were originally settled with and one with the Aseres in the latter’s quarter in ancient Accra Town. No doubt the Sempes and Akumajes came to have and hold the same religious concepts and notions with the Aseres even before they separated from them and by settlement on the other side of the Korle lagoon came to acquire the lands over that side. Then when the grantor’s ancestor Wetse Kojo and his people came to settle among the Sempes and Akumajes and in course of time became one with them no doubt Wetse Kojo’s descendants at least in the process of becoming part and parcel of the Ga people would be imbued with the same concepts and notions including religious ones as to come to accept the existence and importance of the Sakumo fetish as one of the three principal Ga national fetishes (including Nai and

Korle). And so, no doubt at an early stage when the grantor’s ancestors were one with the Sempe and Akumaje Manchemei, occupation and control of the Sakumo fetish lagoon is released to the Sakumo Wulomo and that control has been maintained up to date. Is it an interest in land cognizable by customary law? Decidedly it is. It is the commonest practice by custom and usage for an owner of land to allow or permit to another occupation and use of the whole or a portion for some specific purpose while the title to the land still remains vested in him the owner. As observed by Lord Haldane, L. C. in Amodu Tijani v. Secretary, Southern Nigeria20(21): “A very usual form of Native title is that of a usufructuary right, which is a mere qualification of or burden on, the radical or final title”. Sarbah has also in his invaluable Fanti Customary Laws (1st ed.) page 56 explained that: “The granting of permission to others to reside on or cultivate the lands of a family Stool, or village community, is a practice of the greatest antiquity and was in times past more universal than sale of land which is of comparatively modern growth”. See also the cases of Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu21(22) and Kuma v. Kuma22(23) to which we have already made reference earlier in this judgment. [p.382] of [1961] GLR 354

The customary right and/or interest of having indefinite possession and control of a river, lake or lagoon, may be likened to the possessory or usufructuary right or interest in land, and we might with justification designate the customary right or interest in the lagoon with which we are concerned in this enquiry as the possessory or usufructuary ownership, right, title or interest of the Sakumo Wulomo in the lagoon. It is in that sense that Shippi Asua said: “The Sakumo Wulomo is owner of the water of the lagoon”. In the nature of things there are but few decided cases to guide us except possibly Nene Dake, Ada Manche v. Nartey Nyabu of Terkperbiawe23(24) concerning the Ada Songor lagoon. In that case the interest of the Libi Wornor, the priest who had control of the fetish lagoon in exactly the same way as the Sakumo Wulomo has over the Sakumo Lagoon was assessed at four per cent of the value of the seasonal salt yield of the lagoon.

Using that as a guide and taking into consideration that unlike the Libi Wornor the Sakumo Wulomo is functioning with three other exalted dignitaries in the persons of three other holders of the offices of the Ga, Asere and Gbese Manchemei (chiefs) 1 think an assessment of the value of the Sakumo Wulomo’s interest at ten per cent of the value of the Sakumo land in dispute or the amount of any rent accruing from it is reasonable, and it is hereby duly assessed at that figure. Finally, having regard to the peculiar ownership of the land the subject-matter of the concession which 1 have found established as above. that is to say, ownership in the James Town stool for itself and the Sempe and Akumaje stools, with the burden of the Sakumo Wulomo’s interest on the said title, reference must be made to section 15 (1) of the Concessions Ordinance24(25) by which it is provided that: “it shall be lawful for the Court in its discretion-(a) before deciding that a concession is valid to vary or alter the parties to a concession”. It seems to me this is an obvious case for the exercise of that discretion. Before doing so, however, it seems to be necessary also to determine from the evidence available the respective shares of the co-owners to this property, using some precedent in which the same parties have been involved in the past as a guide, and I have decided to use the precedent of the Harbour Works Acquisition25(26) case as a guide in which the shares of the Ngleshie Alata, Akumaje and Sempe stools were computed at two-fifth, one-fifth, and one-fifth respectively.

I have already determined that the opposer’s interest shall be ten per cent. That leaves ninety per cent for the co-owners, the James Town Manche, the Sempe Manche and the Akumaje Manche.

Undoubtedly the James Town Manche by the villages he has on the land and his active control of it, has the major interest, and I assess his share at 55 per cent. Sempe comes next with a few villages, and I assess his share at 30 per cent. Akumaje, from the evidence, has no village but there is a good deal of unoccupied land including the bed of the river at least in which I am

[p.383] of [1961] GLR 354 satisfied he has interest. (See the decision in King Solomon v. Noye, Manche Kojo Ababio v. T. R. Quartey, and Shippi Asua’s admission). Accordingly I assess his share at fifteen per cent.

The final judgment therefore of the court is that the opposition by the opposer on the grounds that he is owner of the land the subject-matter of the concession is hereby dismissed.

Having regard to the court’s findings as to the co-ownership of the property the subject-matter of the concession, namely that the ownership is vested in the stool of James Town for itself and the Akumaje and Sempe stools (see Solomon v. Noye, Manche Kojo Ababio IV v. T. R. Quartey (exhibit G8), and the admission by the James Town Manche’s representative that: “I agree the land belongs to all James

Town”) with the burden of the Sakumo Wulomo’s possessory or usufructuary ownership or title in the Sakumo Lagoon imposed upon that ownership or title, the court in exercise of the discretionary power vested in it under section 15 (1) (a) of the Concessions Ordinance doth hereby order alteration or variation of the parties to the concession to include all the co-owners and the Sakumo Wulomo. The certificate of validity, when granted, should specify the parties declared by this judgment to be the co-owners of the land the subject-matter of the concession, that is to say, that the grantors of the concession are (1) James Town Manche, (2) Sempe Manche, (3) Akumaje Manche and (4) Sakumo

Wulomo for himself and the Ga, Gbese and Asere Manchemei.

As to costs, the grantor the James Town Manche will have the costs assessed at 150 guineas counsel’s fee, and other costs to be taxed. The claimant will also have 30 guineas counsel’s fee and other costs to be taxed. The stools of Sempe and Akumaje are hereby ordered to contribute proportionately to their hereinbefore declared percentage of shares in the concession land towards the charges or costs as between solicitor and client (which I allow at 400 guineas) of the James Town (Alata) stool in defending the opposition to the concession prosecuted by the Sakumo Wulomo, that is to say 30 per cent of £G400 = £G120 by Sempe, and fifteen percent of £G400 = £G60 by Akumaje. Such contribution is to reimburse the James Town (Alata) stool for the general expenses incurred in and about the defence of the opposition to the concession.

The payment shall be a condition precedent to either stool having its name set out in the certificate of validity as a co-grantor stool.

DECISION

Opposition on ground of ownership dismissed; but opposer made a co-grantor because of his interest in the lagoon.