Division: IN THE SUPREME COURT
Date: 29TH JUNE 1964
Before: OLLENNU, ACOLATSE AND APALOO JJSC
JUDGMENT OF APALOO JSC
This is an appeal from the judgment of the High Court, Kumasi (Djabanor J.)1 delivered on 10 January 1962. That judgment reversed the decision of the Kumasi West Local Court which dismissed the claim of the plaintiff-appellant-respondent (hereinafter called the respondent) for a declaration of title to a cocoa farm said to be situate at a place called Pobriso on Manfo stool land.
The respondent’s case is far from complex and can be put simply. According to him, about fifteen or sixteen years before he issued the writ, the Manfo stool litigated with the Akwaboa stool on what was described as Manfo lands. The Manfo stool emerged victorious in that litigation. The respondent said that when that action was sub judice, he rendered assistance to the then occupant of the stool by name Boateng. When the action was determined in favour of the Manfo stool, he asked and was granted by the stool an area of forest land which he described as situated at Pobriso. He made a cocoa farm on a portion of it. The appellant claiming to be the owner of that land which he called Akrakosua, sued him for a declaration of title. The respondent testified that the appellant recovered judgment against him. Although
this judgment was upset on appeal by the Asantehene’s Court, it was restored by the High Court and was further upheld by the West African Court of Appeal. After this judgment, according to the respondent, the appellant removed cocoa from his Pobriso farm and thus gave rise to the present action in which he claimed a declaration of title and consequential relief.
The appellant’s case is that the respondent was his friend and it was he who allocated to him a piece of forest land which he had reserved for himself. He said he showed the respondent the extent to which he could cultivate. According to the appellant, he had occasion to travel at some time and upon his return, he discovered that a man called Okyere had trespassed and cultivated part of his forest. He said he recovered that area from him after a complaint he made to the elders was decided in his favour. The appellant said he planted cocoa in that area and also cultivated a portion of his reserved forest but had to leave off to go to the Ivory Coast where he sojourned for nearly two years. According to the appellant, on his return from the Ivory Coast, he found that the respondent had trespassed on and cultivated and made further extension to his remaining forest. The appellant said when he questioned the respondent about this, he disputed his title and falsely claimed that the land was granted to him by Yaw Boateng the Odikro of Manfo. Accordingly, the appellant said he sued him for title to the land which he called Akrakosua and was successful in the trial local court, the High Court and in the West African Court of Appeal. He produced in evidence the judgment of the West District Court (exhibit A) and that of the High Court (exhibit C). The appellant said that after the litigation determined in his favour, he collected cocoa from the farms adjudged to belong to him and the respondent commenced proceedings all over again by issuing the writ in the instant case.
As I see it, the issues which the local court was called upon to determine are: firstly, was the land in dispute which the respondent called Pobriso and which the appellant called Akrakosua granted to the respondent by the Manfo stool or was it allocated to the respondent by the appellant and secondly, is the land in dispute in the instant case identical with the land in respect of which the appellant recovered judgment against the respondent in the former suit? After hearing evidence, the local court magistrate conducted an inspection of the locus in quo. Shortly afterwards he delivered judgment in which he determined the two issues I propounded above in favour of the appellant. He felt satisfied that it was the appellant who, to use his own words, “offered” the land to the respondent. The magistrate considered that as the respondent disputed the appellant’s title, he was liable to forfeit the land to him. Having also found that the land which was the subject-matter of the earlier action, is again the subject of the present dispute, he held that the respondent was estopped per rem judicatam by the judgment admittedly given against him in the former action. Accordingly, he proceeded to dismiss the action.
The respondent feeling aggrieved by that judgment, appealed to the High Court, Kumasi.2 In that court, the learned trial judge took the view that the local court magistrate erred in holding that the respondent was estopped per rem judicatam as he considered that there was not sufficient evidence before the trial court to enable him to conclude that the land which was the subject-matter of the earlier litigation was the same as in the instant case. The learned judge did not feel able to go behind the local magistrate’s finding that the land in dispute was not granted to the respondent by the Manfo stool. He was however persuaded by counsel for the respondent to hold that the appellant had admitted making a gift of the land to the respondent. Accordingly, the judge held that although the root of title which the respondent put up failed
him, yet he was nevertheless entitled to succeed, inasmuch as the appellant admitted making a gift of the land to the respondent and that a gift was irrevocable according to native custom. In so holding, the learned judge cited and applied a dictum of Ollennu J. (as he then was) in Boakye v. Broni 3 that:
“In my opinion, where a plaintiff claims title to land and pleads a particular root of title to support that claim, and the evidence proves that title is vested in him but that it was acquired through another root, the trial court is not entitled to dismiss the claim upon that finding, for to do so would lead to a miscarriage of justice, in that the plaintiff would, in the circumstances, be deprived of property which, upon the evidence, was undisputedly vested in him. In such a case it is the duty of the court to do justice between the parties and uphold the plaintiff’s title, even though upon grounds different from those he pleaded.”
Accordingly, the court set aside the judgment of the local court dismissing the respondent’s claim and in lieu thereof entered judgment for him on his claim with costs. It is against this judgment that the appellant appeals to this court.
The only ground of appeal which counsel for the appellant argued before us was what appears in the notice of appeal as ground three. That ground reads:
“As the plaintiff-appellant-respondent failed to prove any root of title to the land which he said had been given to him by the Odikro of Manfo at Pobriso, the learned judge should have dismissed the appeal.”
On this ground, it was submitted that as the local court magistrate found that no land was granted to the respondent by the Manfo stool, he had failed to make good his title to the disputed land and that per se justified a dismissal of the suit. Counsel submitted that the principle in Boakye v. Broni (supra) did not avail the respondent as there was no evidence that the appellant made a gift of the land to the respondent. The evidence of the appellant did not, counsel submitted, amount to any more than the grant of the ordinary customary permission to the respondent to occupy and cultivate the land, so long as he made no adverse claim to it. In this case, counsel argued, the respondent asserted title to the land adverse to the appellant and the local court magistrate was right in holding that he was therefore liable to forfeit it.
As we felt that this contention contained a great deal of force, we stopped counsel for the appellant and called upon the respondent’s counsel to support the judgment of the High Court. In an endeavour to do so, counsel cited the case of Nanavie v. Agboyibor 4 and submitted that in determining whether or not the respondent had made out his case, one has to look not only at his evidence but the whole of the recorded evidence. Counsel contended, as he did before the court below, that the appellant’s story if believed, shows that he had made a valid customary gift to the plaintiff of the land in dispute. The respondent has, argued counsel, been on the land for many years, and the appellant ought not now to be heard to say that he did not make a gift on the land to him. Counsel again cited and relied on Boakye v. Broni (supra).
For my part, I do not doubt that the proposition of law contained in Boakye v. Broni (supra) is right but it seems to me plain that the facts of this case do not justify its application. The respondent himself did not say and cannot have said that the land in dispute was gifted to him by the appellant. He said he got his title independently of him. The appellant did not testify that he made a gift of part of his land to the respondent. His recorded evidence was, “I accordingly allocated to plaintiff a portion of my land.” Nobody with a nodding acquaintance of land tenure in this country would interpret that as a gift of land. Indeed, the local court magistrate did not regard that evidence as a gift and thought the land was merely “offered” to the respondent. In my opinion, the appellant’s evidence amounts to no more than that he had granted the usual customary permission or licence to the respondent to farm on a portion of his land. The respondent therefore remained under a customary obligation to acknowledge the title of the appellant or forfeit his right to occupation if he disputes it. On the admitted evidence, the respondent disputed the appellant’s title in the proceedings which culminated in the judgment contained in exhibit A and in this action and was liable to forfeit his interest in the land. In my opinion, the local court magistrate was right in so holding. That, I think, is sufficient to dispose of this appeal in favour of the appellant.
The learned judge also considered that there was not sufficient evidence about the previous case beyond the finding that Pobriso and Akrakosua were the same land to justify the local court magistrate’s finding that the respondent was estopped by the previous judgment from re-litigating this suit. I think differently. The parties to the previous litigation were the same as in the instant suit, and the issue which they fought in the previous action was the ownership of a piece of land which the respondent called Pobriso and the appellant called Akrakosua. If therefore the subject-matter of the litigation was identical with the one in the present suit, then the matter can properly be said to be res judicata. In that action, the respondent put into issue the whole of the land which he called Pobriso and which he alleged the Manfo stool granted him. As is not disputed, he failed to make good his title to that land. His present action seeks title to a cocoa farm either on the whole or part of that Pobriso land. Therefore whether it be the whole of the Pobriso land or only a part that he seeks title to in the present action, the subject-matter in the instant case is identical in the juridical sense with the one in the previous action and he is estopped by the judgment in exhibit A from re-litigating it. See on this the very instructive dissenting judgment of Ollennu J. (as he then was) in the suit entitled Aperade Stool v. Achiasi Stool,5 and the affirmation of that judgment by the Privy Council on the 20 April 1961 sub nom. Frempong II v. Effah6 In my opinion, the local court magistrate was right when he held that the matter was res judicata and the learned judge of the High Court erred in holding the contrary. It follows that in my judgment, the decision of the local court was right and ought not to have been disturbed.
When counsel for the respondent realised the way in which the wind was blowing, he submitted that if the court should arrive at a decision adverse to his case, then his client would seek refuge behind the Farm Lands (Protection) Act, 19627 He referred us to subsection (1) of section 2 and invited us to confer a statutory title to such farms as his client has on the land. This subsection reads:
“2 (1) Where a farmer has, in good faith, at any time after the thirty first day of December 1940, and before the commencement of this Act, acquired any land by customary law or otherwise in a prescribed area for purposes of farming and has begun farming on that land within eight years from the date of such acquisition, this section shall, notwithstanding any defect in the title to the contrary, operate to confer valid title on such farmer: Provided that the land in question had not been farmed by any other person for a period of eight years previous to the acquisition by the farmer.”
There can be no doubt that a person who seeks protection under the Act must bring himself within the four corners of the section. For myself, I should feel some reluctance in holding that a farmer who brought an action against his neighbour to have it determined that he was the owner of the land and farm as against his neighbour and fails, could properly claim protection under the Act. In any event, I think that the claim for protection fails, because quite plainly, the respondent did not acquire any land in good faith. He well knew that the Pobriso land was adjudged in previous proceedings between himself and the appellant not to be his property. Indeed the appellant was awarded possession of that land in the former suit (see exhibit A). In those circumstances, the respondent cannot be said to have acquired any land in good faith. In the case of Amoako Atta II v. Osei Kofi II, 8 in which he delivered judgment on the 21 May 1962, Ollennu J. (as he then was) dealing with a claim for protection under the Act in question inter alia said:
“The first most important words are ‘has in good faith’, i.e. upon honest, though erroneous, belief. If it is shown that a farmer has no such honest belief or that he has every reason to know and believe that he had no title to the land, and yet he enters upon [the] land by force and occupies and farms it, he will not be protected by the Act.”
Every word of that passage applies to this case save that instead of the respondent occupying the land by force, he wrongfully declined to obey a court judgment to give it up and engaged in repetitive litigation about it.
Having regard to the conclusions I have reached on the various matters urged on this appeal, I think this appeal must succeed. I would accordingly allow the appeal and set aside the judgment appealed from. I would restore the judgment of the Kumasi West Local Court. The appellant would have his costs in this court fixed at £G52 19s. and in the court below assessed at 35 guineas.
JUDGMENT OF OLLENNU JSC
I agree.
JUDGMENT OF ACOLATSE JSC
I also agree.
DECISION
Appeal allowed.
S. A. B.
