DIVISION: IN THE SUPREME COURT
DATE: 10TH APRIL, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.
CASE REFERRED TO
Norquaye-Tetteh v. Malm [1959] G.L.R. 368
NATURE OF PROCEEDINGS
APPEAL from a judgment of Mrs. Jiagge J. delivered in the High Court, Accra, on the 15th December,
1961, in an action for, inter alia, declaration of title to land.
COUNSEL
No appearance for or on behalf of the appellant.
Co-appellant in person.
Koranteng-Addow for the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
The respondent (hereinafter referred to as the plaintiff) brought an action in the High Court, Accra,
against the appellant (hereinafter referred to as the defendant) claiming a declaration of ownership of a
piece of land situate at Opete Kpakpo (Abossey Okai), Accra, the ownership of which she claimed to
have acquired by a deed of conveyance dated the 10th August, 1956, and executed in her favour by the
Akumajay stool of Accra represented by Nii Ayikai III, the Mantse of Akumajay. She also claimed
damages for trespass and recovery of possession. The description of the land as contained in the deed of
conveyance was set out in the plaintiff’s statement of claim.
The plaintiff’s case was that the deed of conveyance was executed after the elders of the Akumajay stool
and one Blankson, a surveyor to the stool, had gone on to the land with her and demarcated two plots of
land for her, and that the two plots of land were then unoccupied. Upon the execution of the deed of
conveyance she appointed the surveyor Blankson her caretaker and instructed him to construct for her a
corrugated zinc building of two rooms on one of the plots which is the subject-matter of the action from
which this appeal has arisen. It was this man Blankson who assisted her in the negotiations for the
purchase of the land. The evidence shows the existence of a corrugated zinc building on the land at the
time the action was brought. The plaintiff alleged further that subsequent to the construction of the zinc
building the defendant wrongfully entered upon the land and assembled thereon building materials in
preparation for the construction of a building.
[p.364] of [1963] 1 GLR 362
The defendant claims to be the rightful owner of the land by virtue of a sale thereof to him by one Okai
Abosse, a grandson of the late Nii Abosse Okai who as acting Mantse of Akumajay granted the land to
the said Okai Abosse. Okai Abosse was on his application joined in the suit as co-defendant, and in his
evidence he produced a piece of “paper-writing” bearing date the 18th December, 1928 (tendered in
evidence as exhibit 1), signed by the said Nii Abosse Okai and in which it was stated that Okai Abosse, a
member of the Akumajay stool family, had been granted “a piece or parcel of land situate lying and being
at Obete-Kpakpo Abossey Okai, Accra, measuring 280 feet by 150 feet for natural love and affection” in
accordance with customary law. There is no further description of the land the subject-matter of the customary grant by which the land can be identified. It is undisputed that the land in dispute is a portion of Akumajay stool land known as the Obete (or Opete)
Kpakpo land, and further that Nii Abosse Okai was in his days, as Nii Ayikai III is now, the accredited
representative of the Akumajay stool capable of making valid alienations of Akumajay stool land. The
central issue therefore is, which of the two grants is effective to transfer title to the grantee.
It should be observed that, contrary to the view expressed by the learned trial judge that “the co-defendant
claimed title to the said land by virtue of the document exhibit 1,” exhibit 1 is not a conveyance of land
nor does it confer title. It is nothing more than evidence of a grant made in accordance with customary
law. Exhibit 1 is typical of the “paper-writings” to which the late Nii Abosse Okai was wont to append his
mark and which he delivered to persons, mostly subjects of the Akumajay stool, to whom he had made
grants of land. There is in these “paper-writings” no description of the lands granted by which the lands
could be identified beyond a statement of the measurements of the land, and when a dispute has arisen in
the courts in respect of any such grant the claimant-grantee has always sought to establish the identity of
the land granted him by evidence of acts of effective possession and occupation, such as farming, the
growing of economic trees, the construction of a building, or the fixing of some boundary pillars on the
land, and in a great number of cases neighbouring owners have come forward to testify to the possessory
activities of the claimant on the land. There is, however, no presumption of law by which ownership or
possessory title to land is presumed from the existence of any of the acts by which possession or
occupation is proved. It is in every case a question of fact, depending on the particular circumstances of
the case, whether the acts proved establish possessory rights or ownership.
When a stool grants land to a person whether he be a stranger or a stool subject and the grant is
challenged by another person claiming to be entitled to the land by right of a prior grant by the stool or by
right of occupation as a stool subject, the determination of the issue who has the right to the land does not
necessarily proceed on the basis of the priority between the two grants but on the basis of the
effectiveness of one or
[p.365] of [1963] 1 GLR 362
other of the grants and the incidence of the burden of proof depends on the nature of the respective rights
upon which the rival claims are founded.
In the case of Norquaye-Tetteh v. Malm1 decided by my learned brother Ollennu in the High Court,
Accra, the plaintiffs had acquired by purchase under a deed of conveyance dated the 26th June, 1956, a
piece of land situate, as the land in this appeal, at Opete Kpakpo, Abossey Okai, from the Mantse of
Akumajay. The plaintiffs went into possession (or at least attempted to go into possession) and were
opposed by the defendant who claimed that the land had been granted to their deceased father by Nii
Abosse Okai then acting Mantse of Akumajay by a deed of conveyance bearing dated the 23rd January,
1926, and that their deceased father had made a gift of the land to them.
There was no doubt that the land which the plaintiffs sought to take possession of was the land described
in their deed of conveyance and in the plan annexed thereto. The same, however, could not be said of the
description of the land contained in the deed of conveyance under which the defendants claimed. But the
defendants were able to prove that the land comprised in the conveyance of 1926 was the same land as
had been granted to the plaintiffs by the Akumajay stool. In the circumstances it was a case of priorities
and the defendants succeeded as their grant was anterior in time to the plaintiff’s grant. At the hearing the
question of the burden of proof arose, the plaintiffs contending that the burden was upon the defendants to
establish the identity of the land claimed by them to have been granted to their father by the conveyance of 1926. It seems at first that my brother Ollennu expressed the view that the burden of proof was upon the plaintiff to prove that at the time their deed of conveyance was executed in 1956 the land was a vacant piece of land on the basis of the principle that a stool could make a valid grant only of such of the stool land as was vacant (that is, not previously occupied by a subject of the stool). However, in the definite
pronouncement made by the learned judge and by which he pronounced judgment in favour of the
defendants he held that, “the defendants have therefore discharged the onus which lay upon them to prove
their possession and occupation of the said lands.” Clearly the defendants could only establish the identity
of the land comprised in the 1926 deed of conveyance by evidence of positive acts of possession and
occupation affecting the precise land in dispute, and this they were held to have done by, inter alia,
evidence of the existence of some mango trees on the land which their father had cultivated and the
erection of boundary pillars. The case therefore proceeded entirely on the facts of possession and
occupation as established by the defendants.
The position of the co-defendant in this appeal is similar to that of the defendants in the Norquaye-Tetteh
case except that there the
[p.366] of [1963] 1 GLR 362
co-defendant does not claim under a deed of conveyance; he claims by right of a grant made under
customary law, and relies on exhibit 1 not as the root of his title but as evidence of that grant. The fact
that he claims under a grant by customary law makes no difference to his position in law, and if exhibit 1
contained an exact description of the land which could be identified with the land in dispute he would of
course succeed, as in that case his grant would be prior to that of the plaintiff. But exhibit 1 does not
contain any such description of the land, and the onus of proof therefore falls squarely on him to prove
that the land in dispute is the land referred to in exhibit 1. In my view there is no onus on the plaintiff to
prove that at the date of her conveyance the land was vacant. Such an onus would be on her if she claimed
as a stool subject who had occupied stool land, for then her very title to the usufructuary rights in the land
would basically depend on the land being vacant at the time of her entry upon it. She is not a stool subject
and she claims under a deed of conveyance which accurately describes the land comprised therein and
which is the land in dispute. The co-defendant could succeed only if he was able to prove that at the date
of the plaintiff’s conveyance he was in effective possession and occupation of the land, which he must do
by evidence of positive acts of possession and occupation; or that the land referred to in exhibit 1 was the
land in dispute. This he failed to do. There was no evidence of occupation by him, not even the usual
evidence that at some time in the past he was seen to have cultivated the land. Indeed his own witness Nii
Amah Tagoe, his cousin, and the person who wrote exhibit 1, testified as follows, “There were no trees
planted on the land to show the boundaries,” which, to say the least, is most unusual for an owner of land
in this country.
The co-defendant’s failure, however, to prove effective occupation by him of the land should not in my
view have concluded the dispute against him, if he had called persons who were present at the time the
grant was made to him to testify as to the identity of the land granted him. Such persons were available in
the person of the said Nii Amah Tagoe and Nah Korkoi (known as Nah Korkoi Abosse), the
co-defendant’s aunt and a daughter of Nii Abosse Okai, who are the only survivors of the persons whose
names appear on exhibit 1 as witnesses. Nah Korkoi was alive when the case was heard and is still alive.
One cannot help but sympathise with the co-defendant for his failure to call Nah Korkoi to establish the
identity of the land claimed by him, for as a result of a search made by the plaintiff in the deeds registry it
was found that Nah Korkoi had conveyed the very land in dispute by way of a gift to one Mary Okai on
the 31st December, 1958. What was significant about this conveyance was that Nii Amah Tagoe was a
witness to its execution by Nah Korkoi. Although Nii Amah Tagoe said at one stage in his evidence in the
court below that he knew the land which was granted to the co-defendant and referred to in exhibit 1, when he was confronted with the deed of gift from Nah Korkoi to Mary Okai (exhibit B) he said:
“It is correct that Korkoi Abosse gave this land to one Mary Okai in 1958. Korkoi Abosse was the Queen
Mother of Abossey Okai. it is true that she
[p.367] of [1963] 1 GLR 362
made her mark on exhibit 1. She was my stepmother. She was the stepmother of the co-defendant. It is true
that she knew of the gift of the land to co-defendant…. It is true that I signed the document (i.e. exhibit B] as
a witness. I read the document before I signed it … At the time I signed the document I did not realise it was
the land described under exhibit 1.”
Obviously Nii Amah Tagoe’s evidence was not of much help to the co-defendant, for either he was lying
when he said the land in dispute was the land mentioned in exhibit 1 or he did not know that land. His and
Nah Korkoi’s conduct in relation to the gift to Mary Okai is explicable only on the basis that the land
granted to the co-defendant in 1928 was not the land in dispute.
The learned trial judge gave judgment for the plaintiff on the ground that exhibit 1 was invalid and could
not therefore operate to vest title in the co-defendant and the defendant. The co-defendant and the
defendant have appealed to this court on the following grounds, “(1) The judgment is against the weight
of evidence. (2) The learned trial judge erred in holding that the document evidencing the grant of the
land in dispute by Nii Abosse Okai to the co-defendant was invalid.” Clearly the learned trial judge was
wrong in holding that exhibit 1 was invalid for the co-defendant, as I have already pointed out, did not
rely on exhibit 1 as the source of his title; it was evidence only of the customary law grant under which he
claimed. It is true its evidential value is nil in so far as identifying the land by it is concerned, but that
certainly does not go to its validity. All the same, the co-defendant and the defendant cannot succeed for
the co-defendant as already indicated failed to discharge the onus which rested on him to prove that the
land referred to in exhibit 1 was the land in dispute or that, exhibit 1 notwithstanding, he ever was in
possession and occupation of the land.
I would therefore dismiss the appeal with costs to the plaintiff.
JUDGMENT OF OLLENNU J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal dismissed.
J. D.
