SUPREME COURT, ACCRA
DATE: 29TH JUNE, 1962
BEFORE: KORSAH C.J., VAN LARE AND SARKODEE-ADOO JJ.S.C.
CASES REFERRED TO
(1) Yardom v. Minta III (1926) F.C. ‘26-’29, 76
(2) Vooght v. Winch (1819) 2 B. & Ald. 662; 106 E.R. 507
(3) Ababio II v. Nsemfoo (1947) 12 W.A.C.A. 127
(4) Bonsu III v. Adu (Kataboa substd.) unreported; affirmed sub nom. Kataboa II v. Bonsu [1961] G.L.R. 481, P.C.
NATURE OF PROCEEDINGS
APPEALS in two consolidated actions for declaration of title to land, recovery of possession and injunction by Nana Akoto III, representing the people and stool of New Ayoma and Nana Kwaku Dua II, representing the people and stool of Old Baika, against the same defendant, Nana Kwasi Agyiman I, representing the people and stool of Likpe-Kukurantumi, tried before J. L. Minnow, Esq., Commissioner of Assize and Civil Pleas in the Land Court. Judgment was delivered on the 13th January, 1960, in favour of the plaintiff in each case.
COUNSEL
E. Akufo-Addo for the defendant-appellants.
G. S. Lassey for the plaintiff-respondents.
JUDGMENT OF VAN LARE, J.S.C.
This is an appeal in two consolidated actions by two different plaintiffs against the same defendant tried before J. L. Minnow, Esq., Commissioner of Assize and Civil Pleas (as he then was), in the Land Division of the High Court at Ho and Accra where he delivered judgment on the 13th January, 1960, in favour of the plaintiff in each case. In one action Nana Akoto III, representing the people and stool of New Ayoma claims against Nana Kwasi Agyiman I, representing the people and stool of Likpe-Kukurantumi, (a) declaration of title to a piece or parcel of land described roughly as being and lying between the rivers Danyi and Owodin and contiguous to the defendant’s stool land “with River Danyi as the common boundary” and which has been delineated in pink on the plans exhibits A and B made in pursuance of an order of court, (b) recovery of possession, (c) £G500 mense profits, and
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(d) perpetual injunction to restrain the defendant and his subjects from further trespass; in the other action Nana Kwaku Dua II, representing the people and stool of Old Baika, claims against the same defendant, Nana Kwasi Agyiman I, representing the people and stool of Likpe-Kukurantumi (a) declaration of title to a piece or parcel of land named as “Ama Lekoko” land, the description of which as per the claim is rather difficult to follow, but it is easily identified as particularly delineated in pink on the plans exhibits A and C, also made in pursuance of an order of court for the purpose of the trial, (b) recovery of possession, (c) £G500 damages for trespass, and (d) perpetual injunction to restrain the defendant and his subjects from further trespass.
The plans clearly show the area in dispute between the parties in each case and it can be seen that the two pieces or parcels of land claimed by the New Ayoma stool and the old Baika stool respectively against the Likpe-Kukurantumi stool together form a continuous stretch of land with the parties as adjoining land owners. In each action judgment was given for the plaintiff, as already stated, granting him all the reliefs claimed with £G250 damages for trespass in each case.
The cases were considered separately and separate judgments given. It is against these judgments this appeal is brought.
It is observed from the plans and disclosed in the pleadings that the parties are adjoining land owners.
The plaintiff’s land is situate approximately north-west of the River Danyi running from a north-easterly to a south-westerly direction while the defendant’s land is situate approximately south-east of the said river. The issue raised for determination was whether the River Danyi, as claimed by the plaintiff, is the correct or true boundary between their adjoining stool lands, or rather, as claimed by the defendant, it is the row of Ntome trees standing in a line from the bank of the River Danyi on the east to the bank of the Owodin in the west. These trees are shown in yellow on exhibit A along the north of the area in controversy.
The case for the plaintiff is that the people of New Ayoma were earlier to arrive in the area and settled on land including that in dispute situate along the western bank of the River Danyi and extending further west to the Owodin stream; that it was twenty-nine years afterwards that the people of Likpe-Kukurantumi arrived and settled on land on the eastern bank of the River Danyi and were extending further eastwards of that river; that thereafter and for a long number of years both sides have acknowledged the River Danyi as a natural boundary between their respective lands and confined their farming activities to land on their respective sides of the said river Danyi; that early in 1930, however, the people of New Ayoma noticed that some people from Kukurantumi, on the other side, had crossed the river and commenced farming on the western side whereupon the then chief of New Ayoma, Nana Akoto II, despatched messengers, including one Andrews Agbo, the plaintiff’s third witness in the present proceedings, to protest to the chief of Likpe-Kukurantumi, the defendant in the instant case, and requested him to warn his subjects to stop crossing to farm on the western side of the river; that in order to test the claim of the stool of New Ayoma to the land west of the river, the defendant, Nana Agyiman I, in the year 1930 instituted an action in the Borada Native Tribunal before Nana Akpandja II, but
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lost against Nana Akoto II, Chief of New Ayoma. In support of this fact was tendered exhibit D in terms following: “Judgment: Case decided and gone through, and all the witnesses and letter written by Chief Osei of Bala that Grunner officer set boundary for them in River Danyi, found that Plaintiff is guilty.” This piece of evidence was tendered and received in the present proceedings without objection. By the present action instituted in 1953, the present chief of New Ayoma, Nana Akoto III, says that in spite of the settled boundary between the two stools the people of Likpe-Kukurantumi have continued their trespass in cultivating the western side of the river in disregard of warnings whereof it has been found necessary to bring the action resulting in this appeal.
The defendant’s case is that the people of Likpe-Kukurantumi about the year 1927, moved from Bala and settled at Kukurantumi and on the surrounding lands when the people of New Ayoma were admittedly already settled in the area, but that there was no fixed or settled boundary between the two tribes; that they have no knowledge of any boundary which Dr. Grunner laid between them and the New Ayomas; that in 1930 a dispute arose between them and people of New Ayoma when Nana Akoto II sold a parcel of land which included the main source of their water supply to one Emmanuel Carpenter, whereupon the defendant sued Nana Akoto II in the Borada Native Tribunal; that during the course of the trial an inspection of the land in dispute was ordered and two of the tribunal members were sent to go and make the inspection and report; that these two tribunal members did not make a proper inspection but lodged with the chief of New Ayoma and sent messengers to the chief of Kukurantumi to come with his people to meet them at New Ayoma for the settlement of the case; that the chief of Kukurantumi refused to go to New Ayoma as invited, and thereafter did not attend the tribunal at Borada again; that he was later notified of judgment having been delivered against him; that whereupon he sent messengers to complain to Nana Akpandja who, taking the Ayomas and the Kukurantumis as his children, later settled the dispute between them at another inspection of the disputed land by himself assisted by the neighbouring chiefs of Baika, Old Ayoma, Dzolu and Bala; that the Omanhene had a new boundary line cut along which he ordered Ntome trees to be planted, and this he declared to be the new boundary fixed by him; that each party expressed acceptance by providing sheep, drink and cash; that since then the people of Kukurantumi have been farming across the Danyi river on the land west of it right northwards to that boundary without let or hindrance or any opposition from the chief and people of New Ayoma and that the latter have therefore by their acquiescence precluded themselves from maintaining the present action; that the new boundary fixed has superseded and nullified the prior judgment exhibit D, and therefore the area in dispute is now within the limits of the defendant’s stool lands.
The learned trial commissioner accepted the evidence that the River Danyi is the boundary between the two adjoining stool lands placing great reliance on exhibit D, the judgment of the Borada Native Tribunal on the same issue; he also finds that subsequently Nana Akpandja II,
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Omanhene of Buem, demarcated the boundary as alleged by the defendant but rejects that as the correct boundary. On this point the learned commissioner said as follows: “After this judgment (exhibit D) of the Borada Native Court, it appears that the paramount chief Nana Akpandja, demarcated a boundary between the Ayomas and the Kukurantumis. The court holds that since there was a subsisting judgment in this matter which had not been appealed against, no acts of the paramount chief Nana Akpandja could cancel the decision of the Borada court. There is nothing on record to show there was consent to this demarcation which was not later recorded as an award at the native court of Borada.”
Mr. Akufo-Addo for the appellant has argued that having found that Nana Akpandja demarcated a boundary between the New Ayomas and the Kukurantumis subsequent to the Borada native court judgment and the same having been admitted by the New Ayomas, the learned commissioner is wrong in law in holding that the demarcation is not binding on the parties, I must point out that the learned commissioner’s finding as to the absence of consent is important. Learned counsel contends that although it is true that there is no specific evidence that the parties had consented to request the Omanhene to demarcate the boundary, yet there is evidence showing that the Omanhene’s demarcation had been accepted and therefore consented to. Counsel has drawn attention to an admission of the plaintiff when, upon being asked in cross-examination if he did not remember that in 1934 a boundary was demarcated by Nana Akpandja and he replied: “There was this demarcation but I maintain that did not cancel the decision of the Borada native court.” Reference is also made to exhibit F, a letter admitted to have been written by the plaintiff to the defendant, paragraph 5 of which reads: “This boundary between Ayoma and Likpe-Kukurantumi was laid or demarcated by the Omanhene of the Buem State with cement pillars about 20 years ago”, and also to the eye witness account of the demarcation. I am not satisfied, upon a careful examination of all the evidence to which we have been referred, that there has been an unequivocal admission on the part of the plaintiff that there was consent on the part of his predecessor to the Omanhene’s demarcation. As regards the admission in exhibit F — that boundary was laid about 20 years before the date of that letter written on the 25th August, 1952, in reply to one sent to him by the defendant, when regard is had to paragraph 4, where the plaintiff wrote about “a divisional boundary between New Ayoma and Likpe Kukurantumi behind River Owodin [which must be a mistake for River Danyi] and not beyond as alleged by you please” — it seems reasonably clear that the plaintiff could not have been referring at all to the demarcation with Ntome trees concerning which the defendant’s witnesses testified. If, therefore, the admissions of the plaintiff made orally in court and contained in his letter exhibit F as to a demarcation by the Omanhene do not furnish clear circumstantial evidence of consent on the part of the plaintiff’s predecessor, then for the appellant’s counsel’s argument to prevail the evidence of consent on the part of the New Ayoma chief must be crystal clear that after the judgment in his favour he consented to refer the matter to an arbitration at which another boundary was laid.
What appears from the evidence of the defendant’s witnesses is that, far from any consent being sought and obtained, the Omanhene, presumably acting in good faith used his position and influence to impose another decision, irrespective of the court’s decision, on the parties to the dispute in an arbitrary manner. The evidence does not disclose that
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the parties appealed to the Omanhene to vary the judgment, exhibit D, but is to the effect that the Omanhene on his own initiative arrived at New Ayoma, summoned four neighbouring chiefs whom he requested to accompany him on his settlement campaign. One eye witness to the demarcation testified, inter alia, as follows: “We representing the Kukurantumis went round with Nana Akpandja and his people and showed them the villages and ruined villages of an ancestor of ours . . . . Nana Akpandja being satisfied with ancestral village decided to go further afield to determine boundaries. After some distance the Omanhene then asked the chiefs of Baika and Dzolu to get people to cut a path to show boundary between Nana Agyeman—Kukurantumi and Nana Akoto—New Ayoma. These two chiefs provided the necessary people who cut the path from the River Danyi to the Owodin.”
The following is also a quotation from the evidence of another eye witness called by the defendant: “I was present at the demarcation. The chiefs of Old Ayoma, Baika Dzolu and Bala were present. . . at the spot Nana Akpandja stood at a place, stretched his arms and asked a path to be cut in the direction from River Owodin to River Danyi. The path was started from the River Danyi. When the path got to River Owodin, Nana Akpandja asked each party to present a live sheep, £10 and 2 bottles gin . . .”
In view of such evidence it is impossible to accept learned counsel’s argument that the very fact that demarcation took place shows that consent must be inferred. As already intimated the evidence rather satisfies me that the demarcation was made arbitrarily and without any pretence of obtaining consent from the chief of New Ayoma. In a case such as this where the rights of one party had been adjudged and duly declared by a solemn judgment of a competent court, there must be clear and strong proof of that party’s agreement or consent to compromise those rights declared to him by the judgment, before any court can hold that those rights have indeed been altered in anyway by a settlement subsequent to that judgment — see Yardom v. Minta.1(1) That decisive proof of consent on the part of the plaintiff’s predecessor Nana Akoto II to compromise the right declared to him by the judgment exhibit D is lacking in this case, and in my opinion the learned commissioner’s decision that the Omanhene’s demarcation is not binding on the parties is right in law. Counsel for the appellant has however argued that the judgment of the Borada native court, exhibit D should have been specially pleaded as it could not have been intended for any purpose other than to have the effect of a res judicata, and was therefore inadmissible it not having been specially pleaded.
As I understand the law on the point, it is only where it is intended that a judgment should operate conclusively as an estoppel that the matter of estoppel should be expressly pleaded. The law does not prevent a judgment being used as a relevant fact from which the court may draw a conclusion in favour of the person who tenders it. In the words of Holroyd, J. in Vooght v. Winch,2(2) “A party may have matter which he may either give in evidence, or which, if pleaded, would be an estoppel.”
In my view failure to plead a judgment does not preclude a party from using that matter as a piece of evidence in support of his case, and I must hold that the learned trial commissioner was perfectly right in admitting exhibit D and justified in drawing conclusions from it.
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It has also been argued on behalf of the appellant that the commissioner made undue use of the evidence concerning confirmation or acceptance by Dr. Grunner of the River Danyi as being the boundary between the Ayomas and the Kukurantumis. The significance of this evidence is that it supports the New Ayoma’s case that the River Danyi has been the acknowledged natural boundary at all times and was apparently a well-known historical fact which the Borada native court used in deciding the 1930 case between the parties. It can not therefore be rightly argued that this does not help in the determination of the issue in the present controversy. I would, however, concede the point that the withdrawal by the Kukurantumis of the action which they instituted against both plaintiffs in 1952, reference exhibits G and H, is of no importance in deciding this action and the weight attached to this evidence by the commissioner is not justified. But this is not capable of turning the table the other way.
The appellant’s counsel finally argued against the learned commissioner’s order granting recovery of possession against the defendant and his subjects, and has submitted that they have been in possession from 1930 up to the date of institution of the action without any opposition from the plaintiff and his people, and that it is now too late in the day to question their occupation or farming rights on the land in dispute. This case is distinguishable from the case of Gyebi Ababio II, Essumejahene v. Nsemfoo.3(3) In that case the appellant, the Essumejahene, litigated with a neighbouring stool occupant, the Offoasihene, about land as far as the Privy Council and after obtaining confirmation of his stool’s title to the land, took steps to eject subjects of the Offoasi stool who had occupied and made farms on the land. One of them, the respondent, Nsemfoo, challenged his election, and it was held by the Asantehene’s “A” Court that,4(4) “the only remedy of the defendant [Essumejahene] was to notify the farmer-tenants on the land to come before him for tenancy agreements, and if they failed to appear or attend before him, he could sue them in a court of competent jurisdiction to show cause why they farm on his stool land and refuse to enter into tenancy agreement with him.”
That however was a case where subjects of the Offoasi stool who had no means of knowing that the land in question did not belong to their stool but belonged rather to the neighbouring Essumeja stool, in good faith occupied and farmed on it until the litigation arose. But the instant case is one where the subjects, particularly Kwame Sylvester Kota, the chief linguist of the Kukurantumi stool, and it is he and his family who own most, if not all the farms in the disputed area, knew quite well that the western part of the River Danyi did not belong to their stool but rather to a neighbouring stool, and had been well aware of litigation concerning the land ending in favour of the neighbouring stool, nonetheless persisted in encroaching by way of asserting rights to the land in dispute. On these facts the order for recovery of possession is justified. The decision in the instant case follows the case of Sub-Chief Osei Bonsu III of Asato, etc. v. Nana Kwasi Adu (Decd) substd. by Sub-Chief Kataboa of Apesokubi, etc.,5(5) where Wilson, C.J. in a judgment delivered on the 22nd April, 1954, in the Land Court, Accra, restored the decision of the Buem Akan Native Court “B” which granted recovery of possession in an action for
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such relief on the ground that by a judgment of the Tribunal of the Omanhene of Buem given at Borada on 3rd March, 1931, a hill called Opranahill had been declared the boundary between the adjoining stool lands of the parties, and the land east of that boundary on the Asato side the property of the stool of Asato; but that the defendant and his subjects again entered the said land, and cultivated and made farms and villages upon portions of the said land with full knowledge of the existing judgment. The West African Court of Appeal dismissed an appeal against the judgment of the Land Court, and the Privy Council in a judgment delivered on the 18th July, 1961, dismissed a further appeal in the case. See Kataboa II v. Bonsu.6(6)
The complaint against the order for recovery of possession must fail and I would dismiss the appeal in this case and confirm the declaration of title together with the other decrees made by the learned commissioner in favour of the plaintiff-respondent, Nana Akoto III in respect of all that piece or parcel of land west of the River Danyi and east of the River Owodin as claimed and delineated in pink on exhibit A.
In this case also, as can be observed from the plans exhibits A and C, the parties are adjoining owners in respect of the land which is the subject-matter in the action just discussed, and the dispute is also as to the common boundary between their contiguous stool lands. The plaintiff ‘s case is that the people of Baika were settled in the area, like the New Ayomas, on the western side of the River Danyi, and formed boundary with the New Ayomas on the north-west by the Owodin stream in its course from north to south until it meets the River Danyi at a point where the “Lembe tree” stands, shown on exhibit C, before the people of Likpe-Kukurantumi came on the scene and settled on the lands situate east of the River Danyi; that the original boundary between the two tribes commenced from the Lembe tree at the confluence of the River Danyi and the Owodin stream and followed the Danyi in its south-westward course down to the point of its junction with its tributary the Odesu stream, the Baikas being on the western side whilst the Kukurantumis remained on the eastern side; that about the year 1935 sub-chief Kwaku Yao of Baika sued the defendant, sub-chief Kwasi Agyiman at the District Commissioner’s Court, Hohoe, for trespass because the defendant’s subjects crossed the River Danyi from the eastern side into the plaintiff’s land on the west and made farms there; that at the trial of the action the defendant raised a defence that the area then in dispute was communal land on which subjects of both parties freely farmed; that one Mr. R. E. Walker, Assistant District Commissioner, who tried the case was impressed by what he saw at the inspection of the area in dispute, and accepting the Kukurantumi’s defence, found that the land between the River Danyi and stream Odesu, then in dispute, was communal land. The plaintiff’s case is that the said magistrate, Mr. Walker caused a path to be demarcated from a point marked by Kukudji tree on the Odesu stream up to Konyindji, and thence to the Lembe tree at the confluence of the Danyi and Owodin marking the western limit of the communal land. This is shown on the plan exhibit C and coloured green. The evidence of one Lawrence Kwame Mensah called by the Kukurantumis and who produced a sketch plan, exhibit 1, appears to support the western boundary, the declared communal land, as pointed out by the plaintiff more so than that alleged by the defendant
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in the present proceedings. The plaintiff on behalf of the people of Old Baika now says that as a result of Mr. Walker’s judgment, exhibit E, the boundary came to be that which was demarcated to delimit the western boundary of the communal land; that the defendant’s people have however disregarded it and crossed over to farm to the west and north-west of it and claiming all that area including the “Ama Lekoko” land the property of the Baikas as theirs and hence this claim. The Baika’s claim to ownership of the Ama Lekoko land is supported by the New Ayomas who acknowledge boundaries with them to the north, north-east and east of the said Ama Lekoko land, and also Nana Ntiamoa Bediaku, chief of Adawkaw, in the Akpafu Division, who acknowledges a boundary with the Baikas at the north-west corner of the said land. The evidence of adjoining landowners is very important in deciding ownership of land.
The Kukurantumis case is that although, as in the case of the New Ayomas, the people of Old Baika were settled in the area before they moved from Bala and settled at Kukurantumi and on the neighbouring land, yet there was never at any time any fixed or established boundary between themselves and the Baikas, and that the River Danyi was never recognised as the boundary between their adjoining stool lands; that Kukurantumi subjects have always occupied and farmed on the area in dispute between the River Lekoko and the Owodin stream and have villages there, especially two ruined villages originally founded by two grandfathers of Kwame Sylvester Kota, the defendant’s chief linguist and representative, by the names of Akpalu and Akela respectively; that the action by sub-chief Kwaku Yao of Baika against sub-chief Kwasi Agyiman which caused the land in dispute to be inspected and resulted in the judgment exhibit E is admitted, but that the area, subject-matter of the action was not that edged green as shown by the plaintiff but rather the larger area edged violet in the plans exhibits A and C; that the area north-west of the communal land has been the exclusive property and in the occupation of the Kukurantumi subjects for a long number of years as part of Kukurantumi stool land.
With regard to the conflict in the respective cases of the parties as to what was the area of land which was the subject-matter of the action resulting in the judgment exhibit E, it is clear the conflict is resolved in favour of the plaintiff by the admission of the defendant’s own witness Lawrence Kwame Mensah, the court registrar of the proceedings before Mr. R. E. Walker, who testified that he accompanied the magistrate on the inspection of the area in dispute and made the sketch plan exhibit 1 on the instructions of the magistrate and that “according to Walker’s judgment the area bounded by [edged] yellow and green as claimed by the plaintiff would be the communal land”. If the plaintiff ‘s area claimed as communal land for the Baikas on the east and the Kukurantumis on the west is accepted as that decided by Mr. Walker’s judgment, exhibit E, then the western boundary of the said communal land must be as shown by the plaintiff’s boundary running from the Kukudji tree to the Lembe tree appearing on exhibits A and C. Beyond this line to the west therefore the Kukurantumis can have no claim. This must be so because in the action before Mr. Walker in 1935 although the plaintiff claimed the whole of the land west of the Danyi river as Baika stool land, the defendant did not claim any of that land to the west as exclusively belonging to the Kukurantumi stool, beyond the area they claimed as communal land. The judgment exhibit E, therefore, in my view impliedly determined that the defendant and his subjects were not entitled to occupation of the land to
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the west of the Danyi, beyond the western boundary of the communal land edged green, and the ownership of the land west of the western boundary of the communal land must necessarily be in the Baika stool whose ownership is not disputed on the west of the area in dispute. As already indicated the plaintiff’s claim derives support from boundary owners such as the Adawkaw and New Ayoma stools and the argument that the plaintiff has failed to establish ownership of the land in dispute falls to the ground. The evidence discloses that it was after the Walker judgment exhibit E that the Kukurantumis started going westwards and farming on the area in dispute. These facts the learned commissioner accepted and found in favour of the plaintiff.
It is true the defendant’s people have more farms in the disputed area than the plaintiff’s people, but this appears to be a glaring encroachment upon land which they knew full well is not attached to their stool, and in the circumstances the order for recovery of possession and damages for trespass as decreed by the learned trial commissioner is justified. I would therefore confirm the declaration of title in favour of the plaintiff in respect of the land claimed as properly delineated on the plans exhibits A and C and dismiss this appeal also.
DECISION
Appeals dismissed.
