HIGH COURT, ACCRA
Date: 9 MAY 1975
FRANCOIS J A
CASES REFERRED TO
| (1) | Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347. |
| (2) | Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. |
| (3) | Renner v. Fanti Consolidated Mines Ltd. (1919) P.C. ‘74-’28, 53. |
| (4) | Seraphim v. Amua-Sekyi [1971] 2 G.L.R. 132, C.A. |
| (5) | Ashong v. Cofie, W.A.C.A., 11 February 1957, unreported. |
| (6) | Ita (Chief Eyo) v. Asido (Efa) (1935) 2 W.A.C.A. 339. |
| (7) | Abudulai v Manue (1945) 10 W.A.C.A. 172. |
| (8) | Ebu v. Ababio (1956) 2 W.A.L.R. 55, P.C. |
| (9) | Gyetua v. Boafo 1964] G.L.R. 443, S.C. setting aside sub nom. Boafo v. Gyetua [1962] 1 G.L.R. 4 |
| (10) | Boakye v. Broni and Domfe (1958) 3. W.A.L.R. 475. |
| (11) | Dodoo v. Gyansa [1960] G.L.R. 9. |
| (12) | Malm v. Lutterodt [1963] 1 G.L.R. 1, S.C. |
| (13) | Mansah v. Asamoah [1975] 1 G.L.R. 225, C.A. |
| (14) | Augustt v. Aryee [1961] G.L.R. (Pt. II) 584. |
| (15) | Golightly v. Ashrifi (1955) 14 W.A.C.A. 676. |
| (16) | Ohimen v. Adjei (1957) 2 W.A.L.R. 275. |
[p.178] of [1975] 2 GLR 176
NATURE OF PROCEEDINGS
APPEAL from a decision of a magistrate’s court in which judgment was given for the plaintiff in an action for a declaration of title to a parcel of land at Okaase. The facts are fully set out in the judgment of Francois J.A. sitting as an additional judge of the High Court.
COUNSEL
No appearance for the plaintiff-respondent.
Annancy for the defendant-appellant.
JUDGMENT OF FRANCOIS J. A.
Two hundred years ago, when land was cheap and plentiful and the scramble for it has not reached the proportions which assail us in our age and time, the plaintiff-respondent’s (hereafter referred to as the plaintiff) ancestors acquired a piece of land at Okaase, in an area lying between Akropong and Larteh. The plaintiff s traditional account was that the acquisition was by purchase from a Larteh man called Oyeade. With the passage of time and the consequent erosion of details from human memory, the particulars of acquisition have become blurred and so although the fact of alienation cannot be confidently controverted, it cannot also be said that the plaintiff and her witnesses sang in unison the song of acquisition. Indeed there was evident disharmony in the chorus of voices, with the strains of purchase, gift and licence, competing with each other and creating a muted discord.
The first issue in this appeal therefore, which is argued with force by counsel for the defendant-appellant (hereafter referred to as the defendant), is that the discrepancies shown in the evidence of root of title, should automatically defeat the plaintiff s claim and the trial local court magistrate erred in not so holding. This contention is an over-simplification of the issues in this appeal. For to hold that despite proof of long possession and user stretching for some 200 years, after an original grant, a party can lose his land merely because the traditional history is unclear as to whether the possession derived from purchase, gift or grant, is to forsake the substance for the trappings. I do not consider this right in equity or sound in law. I consequently called on counsel to support his argument with authority. Mr. Annancy declined the gauntlet, but in the process conceded that if there was possession which was accepted by all the parties, then the variance between the plaintiff s evidence of title, and some of her witnesses would not nullify her title. He submitted, however, that in this case the defendant did not admit that the plaintiff had acquired any original title.
I consider this as begging the question, as there would be no issue in court if both parties were agreed that the plaintiff was legitimately on the land. I have therefore attempted my own researches.
It must be noted that this case, emanating as it does from the local court, commenced without pleadings. The plaintiff s evidence of purchase was corroborated by two witnesses from her family. But the plaintiff s first witness, Asonahene Kweku Essi II, a grandson of Oyeade of Larteh, deposed that the alienation by his grandfather was by way of gift, sealed with the customary thanks. He maintained that in those days land was
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not sold. The plaintiff s fourth witness, Bekoe, however, claimed that the acquisition was by customary grant, a disposition made to a member of a stool family.
Under English law, root of title must be specifically pleaded and proved. This requirement has been seeping into our customary law. Thus in Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347 Verity C.J. said at p. 348:
“It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right. Unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration”.
This dictum was approved in Odoi v. Hammond [1971] 1 G.L.R. 375, C.A. where Azu Crabbe J.A. (as he then was) said at p. 382:
“For a stool or family to succeed in an action for a declaration of title it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute”.
The application of this test involves the proof of substantial user. It recognises that proof by traditional evidence might be unavailing with the difficulties attendant on the passage of time; it consequently affords a party another avenue of proof, namely, substantial exercise of user in support of ownership. This case also recognises the old rule in Renner v. Fanti Consolidated Mines, Ltd. (1919) P.C. ‘74-’28, 53, that if the traditional history is uncertain acts of recent user could be a guide.
I think however that Odoi v. Hammond (supra) as far as is relevant to this appeal can be distinguished. The parties in that case had pleaded their respective titles and were bound to establish their averments within the straight jacket of their pleas. Thus for instance in Odoi v. Hammond (supra) the Court of Appeal was unable to discover how ownership of the land in dispute was acquired, Azu Crabbe J.A. concluding at p. 384 “there was absolutely no evidence from which such an inference [of ownership] could be made”. It is not so in this case. There is overwhelming evidence of acquisition and subsequent occupation and user. What is lacking is certainty as to the character and quality of the original occupation, this uncertainty arising from one or two diffident voices. In my view therefore, as far as relevant, Odoi v. Hammond (supra), which turned in some measure on the inconsistency of setting up a case at variance with the pleadings, cannot apply here.
The present appeal also does not turn on the practice condemned in Seraphim v. Amua-Sekyi [1971] 2 G.L.R. 132, C.A. and Ashong v. Cofie, West African Court of Appeal, 11 February 1957, unreported, of a plaintiff putting up contradictory roots of title in subsequent suits. The plaintiff herein has not indulged in two bites at the cherry. She and her two witnesses from the family have sung a consistent tune. Divergencies from the other two witnesses might have arisen from aberrations created
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by time. Thus the Court of Appeal in Seraphim v. Amua-Sekyi (supra) at p. 134 did not think that “if a person claimed absolute title to land and succeeded in proving anything less, should he lose only on that ground. To do so would be to confine the determination of disputes to narrow legalistic grounds”.
Referring to some of the old cases one finds support for the view that discrepancies arising from the failure to describe accurately the quality of the original grant are not fatal to a claim of this nature. Thus in Chief Eyo Ita v. Efa Asido (1935) 2 W.A.C.A. 339 where it was impossible to decide whether the plaintiffs had made out their proprietary title by the purchase of their predecessors or by long user and occupation derived from a customary grant, the court held they were entitled to possessory title: see also Abudulai v. Manue (1945) 10 W.A.C.A. 172 and Ebu v. Ababio (1956) 2 W.A.L.R. 55, P.C. The issue of an emerging discrepancy in the root of title not vitiating a plaintiff s case in a local court was also upheld in Boafo v. Gyetua [1962] 1 G.L.R. 4, and in Boakye v. Broni and Domfe (1958) 3 W.A.L.R. 475 where Ollennu J. (as he then was) said at p. 478:
“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”.
Though Boafo v. Gyetua (supra) was upset by the Supreme Court subsequently on different grounds, the principle enunciated in Boakye v. Broni, was approved: see Gyetua v. Boafo [1964] G.L.R. 443, S.C. I think this is a just way of resolving an issue where everything points to valid title but the cobwebs of time have obscured the evidence relating to its root. In a country where scribes and records were non-existent in its early history, a realistic view of these matters must be taken. This was a fact very much in the mind of Adumua-Bossman J. (as he then was) when he held in Dodoo v. Gyansa [1960] G.L.R. 9 as stated in the headnote:
“proof of ownership need not be restricted to the evidence of the vendor and to that of eye-witnesses of the sale, who may or may not be alive when litigation arises. Evidence of acts of ownership in relation to the property during the material years is of no less probative value”.
But there is another aspect of the matter of considerable importance in resolving this appeal. It was the defendant’s case that the area in dispute had been acquired after a war with the Ashantis on Guan territory. After this war the land had been parcelled out and members of the plaintiff s family who had contributed to the fight had received a share. The plaintiff s predecessor Asokyi had been given land on which to settle, but according to the defendant:
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“some time later, Asokyi decided to leave the land to go to farm cocoa. He went to Tincong, where he purchased land for cocoa growing. When Asokyi left the land to stay at Tincong, the land he was occupying was given by the stool to one Kwasi Bekor, who cultivated the land to serve Krontihene stool”.
It would appear that, contrary to what counsel alleged, and to which I alluded earlier in this judgment, the defendant in the above passage concedes that the plaintiff s predecessor Asokyi had a valid grant of the land, but abandoned it. But the evidence of abandonment is tenuous in the extreme.
Azu Crabbe J.S.C. (as he then was) in Malm v. Lutterodt [1963] 1 G.L.R. 1 at pp. 12-13, S.C. defined abandonment in legal terminology as follows:
“Land is deemed to be abandoned when the occupier of the land vacates his holding and ceases to exercise any right thereto for an unreasonably long time and does not show any intention of returning to it. In order to establish abandonment it was necessary for the plaintiff to show an intention to abandon in the minds of the defendants or their late father. This is usually a question of fact which may be inferred from the conduct of the party claiming the right to the land. It is one thing not to assert an intention to use land in one’s possession, and another to assert an intention to abandon it. A presumption of abandonment cannot be made from mere non-user: Ward v. Ward ((1852) 7 Ex. 838): the cesser of use must be coupled with an act clearly indicative of the intention to abandon”.
In the case from which the above extract is culled, it was held that even though a dwelling-house had been allowed to fall into ruins that was not an inescapable act of abandonment. See also the recent case of Mansah v. Asamoah [1975] 1 G.L.R. 225, C.A. where the animus deserandi et relinquandi was stressed as the criterion for abandonment.
In the present appeal there was no suggestion that the plaintiff and his family had left to settle at Tincong with Asokyi: indeed all the available evidence cogently negatives an intention to abandon the land. For the family remained behind and were in full possession until recently when the defendant’s trespass provoked this suit. This was evidence which the trial court accepted, and I see nothing to impeach it.
It is now trite law that land granted by a family or stool to a member of the family or stool subject cannot be taken away from him without his knowledge and consent: see Augustt v. Aryee [1961] G.L.R. (Pt.II) 584 at p. 588; and the well-known cases of Golightly v. Ashrifi (1955) 14 W.A.C.A. 676 and Ohimen v. Adjei (1957) 2 W.A.L.R. 275. Thus unless there is a valid forfeiture arising from an adverse assertion of title against the family or stool, or there is a legal abandonment, a member of a family who receives a grant of family land holds the usufruct to be enjoyed by his own immediate line of descent in virtual perpetuity.
[p.182] of [1975] 2 GLR 176
Having considered all the circumstances therefore, I am of the view that the trial magistrate was right in finding for the plaintiff. I shall confirm his decision and dismiss the appeal. There will be no order as to costs, the plaintiff s counsel not having appeared herein.
DECISION
Appeal dismissed.
D.R.K.S.
