MIEH v. ASUBONTENG [1963] 2 GLR 37

DIVISION: IN THE SUPREME COURT

DATE: 17TH JUNE 1963

BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Sakpaku v. Ahiaku (1942) 8 W.A.C.A. 76

(2) Renner v. The Fanti Consolidated Mines, Ltd. (1919) P.C. ‘74-’28, 53

(3) Adu v. Kuma (1937) 3 W.A.C.A. 240

NATURE OF PROCEEDINGS

APPEAL from a decision of Djabanor J. delivered in the High Court, Kumasi, reversing the decision of the Offinso Kwabre Local Court in an action for a declaration of title to land.

COUNSEL

Owusu for the plaintiff.

Effah for the defendant.

JUDGMENT OF AKUFO-ADDO J.S.C.

The appellant as the successor of her deceased brother Kwabena Afriyie brought an action in the Local Court of Offinso Kwabre by which she claimed a declaration of her ownership to a piece of farm land situate at Mantukwa in Offinso and described as to the boundaries thereof in her writ of summons, £G100 for damages for trespass and an injunction.

The land in dispute is part of Offinso stool land and both the defendant and the plaintiff’s predecessor Kwabena Afriyie, as subjects of the Offinso stool, cultivated farms in the area named Mantukwa. [p.39] of [1963] 2 GLR 37

According to the evidence some time in or about 1940 a dispute arose between Kwabena Afriyie and the defendant concerning the boundary between their respective cultivated areas. An action brought in the then Offinso Native Tribunal ended in Afriyie’s favour and as a result a boundary was demarcated between Kwabena Afriyie’s area and that of the defendant. A result of this boundary demarcating appears from the evidence to have been that the land left for the use of the defendant was a relatively small piece of land, and he bargained and sold his interest in it to Kwabena Afriyie for £G9. This piece of land has, according to the plaintiff, since formed part of Afriyie’s cultivated area of which he was in undisturbed possession up to the time of his death.

This was the plaintiff ‘s case which the local court magistrate accepted.

The defendant who said he left Offinso some time after the demarcation of the boundary and returned after the death of Kwabena Afriyie to find the plaintiff in possession of the land entered upon the land to assert his title thereto. Hence this action.

The defendant denied the allegation of the sale to Afriyie and claimed the demarcated boundary line as being still the line separating Afriyie’s land from his.

As already indicated the local court magistrate accepted the evidence of the plaintiff and her witnesses regarding the sale to Afriyie, and gave judgment declaring her the owner of the land described in her writ of summons. Nothing was said about the claim for damages and injunction.

On appeal to the High Court, Kumasi, Djabanor J. set aside the judgment of the local court magistrate and entered judgment for the defendant. The plaintiff appeals to this court from that decision. The arguments of learned counsel for the plaintiff were directed to establishing the untenability of the grounds on which the judgment of the High Court proceeded. These grounds were: first, that to constitute a valid sale of land, “it is very important that the extent of land being sold be clearly demarcated. In my view it is not clear from the evidence on record what extent of land was sold”; secondly, that the area alleged by the plaintiff to have been sold to her predecessor “cannot be accurately ascertained either from the writ or the evidence or both”; and thirdly, “It appears from the judgment too that the trial court based its judgment on the assumption that since the plaintiff has been on the land undisturbed therefore she is entitled to the declaration she sought. The principle of law in this regard is quite clear, see Adu v. Kuma (1937) 3 W.A.C.A. 240 where it was held that undisturbed possession of land for a term of years cannot oust an original title, especially in a case where there are no laches.”

The first two grounds may conveniently be examined together. The writ of summons described the land as bounded on its four sides by Kofi Atobera’s farm, Kwabena Nsiah’s farm, the stream Ampenkuro and the plaintiff’s (that is Kwabena Afriyie’s) old cultivated cocoa farm. The plaintiff’s evidence as to the identity of the land was a reiteration of the description stated in her writ of summons. Atobera and Nsiah gave

[p.40] of [1963] 2 GLR 37 evidence for the defendant and there is no doubt from their evidence that their respective farms form a boundary with the land in dispute. The stream Ampenkuro cannot possibly elude the most casual observer, and what the plaintiff described as the “old cultivated cocoa farm” obviously ended at the line which was demarcated as the boundary between Afriyie and the defendant after the litigation at Offinso. That boundary line cannot be mistaken, and as the land in dispute is on the side of this line which used to belong to the defendant and as Atobera’s and Nsiah’s farms are easily identifiable I am unable to appreciate the learned judge’s difficulty, which proved to be insurmountable, in being satisfied with the evidence as to the identity of the land in dispute. The parties to the suit were under no illusions about the land they were fighting for.

It is true that a declaration of title made in respect of an area of land that cannot be identified is bad as was held in the case of Sakpaku v. Ahiaku1 relied upon by the learned judge, but the test provided in that case is “could a surveyor show with accuracy the area on a plan from the description given?” If a plan were to be made of the land in dispute it would show Atobera’s and Nsiah’s farms, the stream Ampenkuro and the boundary line as demarcated after the litigation. He would be an unusual type of surveyor indeed who would fail to identify the land on such a plan. Indeed one does not have to be a surveyor to be able to identify the land on such a plan.

On the view expressed by the learned judge that there was no evidence that at the alleged sale the extent of land sold was “clearly demarcated,” it is enough to say that the plaintiff’s case was that the land described in her writ of summons and of which her brother was in possession for over twenty years was the land sold to her deceased brother. What more evidence of demarcation or otherwise, is necessary to show the extent of land sold. And when the learned judge said, “I am prepared to accept £G9 as a reasonable price twenty years ago,” of what extent of land, it may be asked, did he accept this price as reasonable? But assuming the worst for the plaintiff that no specific area of land was demarcated at the sale, the principle is well established that where there is a state of uncertainty as to the boundaries of land sold it is essential to enquire into the circumstances attending the sale and the state of possession following on it, and in such a case possession seems to be the only safe guide. See Renner v. The Fanti Consolidated Mines, Ltd.2 In this case the plaintiff proved to the satisfaction of the trial court that consequent upon the sale her brother effectively occupied the land described by her in the writ of summons and in her evidence. It is difficult to imagine what more could be expected of the plaintiff in establishing the extent of land she alleged was sold to her brother.

[p.41] of [1963] 2 GLR 37

As regards the third of the learned judge’s grounds for allowing the appeal as stated above it must be said at once that the learned judge does the local court magistrate very much less than justice. The magistrate did not proceed on any such assumption as the learned judge attributes to him.

The statement in the judgment of the local court which called for the learned judge’s comment reads: “I find this piece of land has been in the possession and occupation for almost twenty years now and cocoa has been planted by the plaintiff’s deceased brother since seven years now. I am satisfied that the land in dispute has been possessed and occupied by the plaintiff’s deceased brother for a long time before his death, without any interference from the defendant. On the other hand there is on record from the plaintiff proving the transaction which proves the payment of nine pounds (£G9) by Afriyie to the defendant and such payment has thereby given access to the deceased Afriyie to possess and occupy the land in dispute since twenty years now.”

The learned judge appears to have completely ignored the very important finding of the trial magistrate that the land was sold to Afriyie by the defendant, which was the essential basis of his judgment. Apart from that, and with due respect to the learned judge, I think he was in some obvious confusion regarding the legal aspects of the circumstance of long undisturbed possession when that circumstance falls for consideration in litigation concerning title to land.

A claimant to title to land may base his claim entirely on the fact that he has been in uninterrupted possession of the land for a certain number of years, and without proving his source of title, claim to be entitled to be declared an owner of the land. This is prescription or usucapio as it is termed in Roman Law, and the emerging title is described as a prescriptive title. There is of course no such title known to the law of Ghana. On the other hand a claimant to title to land gives evidence of his source of title and relies on his long undisturbed possession as further evidence of his title.

The difference between these two aspects of long possession is clearly demonstrated in a passage in the judgment in Adu v. Kuma3 cited by the learned judge and it says:

“It is true that there are a number of cases where the Courts have refused relief by way of decreeing possession to a plaintiff who has slept on his rights, and others where in a dispute as to ownership, long undisturbed possession has been accepted as evidence of title. But there is none which goes so far or nearly so far as the Provincial Commissioner’s Court has gone in this case, namely to hold that land proved to have been plaintiff’s has become defendant’s because defendant has occupied it undisturbed for 16 years. That decision being contrary to well-established native custom cannot be upheld.”

In this case the plaintiff rested her case on an allegation of the sale of the land to her brother and demonstrated her brother’s ownership of the

[p.42] of [1963] 2 GLR 37 land by reference to the fact that her brother occupied the land from the time of the sale up to his death. The local court magistrate accepted the story of the sale as true and referred to Afriyie’s long undisturbed possession as further evidence establishing the truth of the sale of the land to him. In simpler language what the magistrate said was that the story that the land was sold to the plaintiff’s brother was true otherwise the plaintiff’s brother could not have occupied the land for so long undisturbed. The magistrate was very far from saying that “since the plaintiff has been on the land undisturbed therefore she is entitled to the declaration she sought.”

It follows from the foregoing that the grounds upon which the learned judge allowed the defendant’s appeal are wholly untenable, and his judgment cannot stand. The judgment of the local court cannot be impeached either on the facts or in law, and it should not have been disturbed.

I would therefore allow the appeal, set aside the judgment of the High Court appealed from and restore the judgment of the trial local court.

JUDGMENT OF OLLENNU J.S.C.

I agree.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal allowed.

K. T.