Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 29TH SEPTEMBER, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship stated the history of the matter, and continued:-)
The evidence led by the plaintiff and his witnesses was that about 200 years ago, while the Krobos were still living on the Krobo Hill, his ancestors farmed a portion of the land round about that hill.
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This was not challenged by the defendants or by the 1 co-defendant. They appeared not to know whether or not the plaintiff s family owned a portion of the Okwenya lands, which form part of the
lands in the plains round and about the hill. A very feeble attempt was made by the 2nd co-defendant to challenge the plaintiff s evidence as to his ancestors’ acquisition of the land.
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What the defendants and the 1 co-defendant say is that the whole of the land at Okwenya belong to the Konor of Manya Krobo, and that the plaintiff s ancestors could not have farmed that land to acquire title to the same, they being Yilo and not Menya Krobo subjects.
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The implication of the tradition as to the mode of acquisition of the lands, is that the boundary between the lands of the two Stools must be identical with the boundary between the farms of subjects of one Stool farming from one direction, and the farms of subjects of the other Stool farming from the
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opposite direction to meet the former. The situation was summarised by the 1 co-defendant (Chief Sackitey) in his answers to the Court, as follows:-
“ Both Yilo Krobos and Manya Krobos were occupying the Krobo Hill before they were driven down to the plains. The two Krobos separated when they came down from the hill.
The two peoples lived separately on the hill, not as one community. Both the Manya Krobo people and Yilo Krobo people were farming communities, and their subjects farmed the land round about the hill.
Q. According to customs what would happen to lands which each person farmed in those days after the death of that man who farmed it?
A. They would become the property of the descendants of the person who farmed it originally.
“Unoccupied land which is round about an area which a Stool settles upon, and which the subjects of the Stool cultivate, comes to be regarded as property of the Stool. But the portion which any one so farmed also remains ancestral property for his descendant. Both the Yilos and Manyas got to the land by migration, and found it unoccupied by any other tribe. From the way the two Krobo communities lived and farmed the area, the only way in which a boundary between lands of their Paramount Stools can be determined is by following farm boundaries between land farmed by their subjects from opposite directions, The only other way is for the two Paramount Stools to fix (or to have fixed for them) an arbitrary boundary when a dispute arises between the two Stools. Apart from the case which I said came to the Court in 1902, the result of which I said I did not know, and the Jackson Commission of Enquiry into Stool Lands Boundaries, the Manya Krobo and the Yilo Krobo Paramount Stools have not had a boundary dispute to necessitate their fixing an arbitrary boundary between lands of their two stools. Any arbitrary boundary between the two Stools is bound to cut through ancestral land of either Manya Krobo families or Yilo Krobo families.”
The plaintiff is a subject of the Yilo Krobo Stool and so is the 2nd co-defendant. The 1st co-defendant is a caretaker of the Manya Krobo Stool lands in the Akuse area, and is defending this suit for
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and on behalf of the Konor of Manya Krobo, through whom all the nine defendants claim.
It was sought to prove, on behalf of the Manya Krobo Stool that there is a fixed boundary between Manya and Yilo. In pursuance of that attempt four judgments were tendered in evidence; they are Exhibit “1” Exhibit “3” Exhibit “4” and Exhibit “5”
Exhibit “1” is a certified copy of a judgment of the Privy Council delivered on the 25th July, 1927, in a suit entitled Mantse Animle II v. Otibo and another. That judgment confirmed a judgment of the Full Court which had upheld a judgment of non-suit entered against the plaintiff Tetteh Animle II of Osu-Doku. It is wholly irrelevant to this suit; firstly, because it simply non-suited the plaintiff therein, making no declaration in favour of the defendants in that case; and secondly, there is nothing to show that the parties to this suit.
Exhibit “3” is a judgment of Dalton J., delivered on the 5th January, 1925, in the Divisional Court in suit entitled Konor Mate Kole, etc. v. Otibo, where the Konor of Manya Krobo obtained judgment against one Otibo of Osu-Doku, for a declaration of title to a certain piece of land specifically described. At a later stage in this judgment I shall deal with the description of the land the subject-matter of that judgment. That judgment also is irrelevant in the present suit, firstly because the plaintiff herein was not the defendant, or privy to the defendant, in that suit. Secondly, as will appear presently, the land in dispute in that case does not cover the and which is the subject-matter of this suit. Thirdly, since the defendant in that case did not claim through the plaintiff herein, no estoppel by conduct can possibly arise, even if the land in dispute in that case were identical with the one now in dispute in this case (compare Nettey v. Odjidja & anor. (p. 261 of this volume)).
The observations made with respect to Exhibit “3” apply equally to Exhibit “4” and Exhibit “5”.
Neither of the parties has relied upon anything in the report of the Jackson Land Boundary Settlement
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Commission, which was mentioned in passing by the 1 co-defendant; indeed, it has not been shown by any of the parties to this suit that anything in this suit turns upon that report.
The decision in the instant case must therefore be reached upon considerations other than any boundary agreed upon or fixed between Manya and Yilo in any judicial or quasi-judicial decision. The
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defendants submitted that the plaintiff s claim should be dismissed because:
(1) though the claim is one essentially for trespass, there is no plan of the land in dispute, and the plaintiff has failed sufficiently to identify otherwise the land, subject of the alleged trespass;
(2) there is no evidence of the acts of trespass alleged; and
(3) the admission by the plaintiff that the defendants have been on the land for over 50 years, shows that the defendants could not be trespassers.
The submission that an action for trespass cannot succeed without identification of the land alleged to have been trespassed upon, is a correct statement of the law. But a plan of the land alleged to have been trespassed upon is not indispensable; it is most desirable, but it is not a sine qua non. A plaintiff claiming in trespass is entitled to succeed even without a plan, if the oral evidence tendered by him leaves a clear picture of the identity of the land which is in dispute between him and defendant. In this respect I would refer to the judgment of Dalton J. (Exhibit “3” in this case) where, the absence of a plan notwithstanding, the Court was satisfied that the Manya Krobo Stool was identified with clarity, and the Court entered judgment for the Manya Krobo Stool.
The evidence of the plaintiff as to the land in dispute is as follows:
“The boundaries of our land are as follows:
On one side from the Hill to the Okwenya Stream on the Somanya side of the Stream, with land of Kwasi Yumu, on the left side with land of one Koryo Akumale, and on the right hand side with the land of one Tackie.”
These boundaries describing the plaintiff s land were confirmed by the evidence of his witnesses, some of whom are the persons named as owners of the lands which form a boundary with it. Thus his witnesses included P.W. 1 (Kwasi Yumu), P.W. 2 ( Obute Tei Tsu), P.W. 3 (Ohene Ologo), and P.W
4 (Koryo Akuma Adsagbatsu). The evidence by P.W. 4 that she has let a portion of her land to the 8th
defendant for the last three successive years was not refuted, and agrees with the evidence of the 8th defendant as to the number of years he has lived in the area.
As to the Okwenya Stream forming the boundary of the lands on its Somanya side, the evidence of st
the 1 co-defendant, and that of the Konor (Nene Mate Kole, D.W1) described the Okwenya Stream as forming one of the boundaries of the Manya Krobo Stool
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lands. This followed the description of the Manya Krobo Stool lands as claimed in Exhibit “3” by the Konor, which was as follows:
“On the North it is bounded by Okoi Stream and the Volta River, on the South by the Mutuke Stream, and the Lome Stream, and on the West by Manya Krobo Stool lands. ‘Oko’ is the same as ‘Okwei’.”
In view of the method by which the Manya Krobos and the Yilo Krobos acquired land in the area, the only way in which the Manya Krobo Stool can defeat the plaintiff s evidence of possession and occupation of a portion of the land is to produce Manya Krobo subjects whose ancestors farmed the area in ancient times. No Manya Krobo family has come forward to claim the land in dispute as his ancestral family property. That being so, the Stool, which can acquire title only through its subjects, cannot resist the evidence of a Yilo Krobo subject whose ancestor’s original cultivation of that portion of the land has been established.
I accept the evidence of the plaintiff, and that of all those witnesses to whom I have referred above, each of whom impressed me most favourably as a truthful witness. I must say that the tone of the cross-examination of the witnesses other than P.W.2, and specially of the old woman Koryo (P.W.4) leaves the impression that it is not disputed that those named as boundary owners, own land in the area.
I am satisfied
(1) that the plaintiff s ancestors, like many other Krobos-Yilo as well as Manya-in ancient times farmed portions of the land at the foot of the Krobo Hill, and
(2) that the land which the plaintiff s ancestors so farmed is now the ancestral property of his family, and
(3) that that land is as described by him, and as confirmed by his witnesses.
There is no evidence that any subject of the Manya Krobo Stool ever farmed that particular area, and no evidence even that any other subject of the Yilo Krobo Stool farmed that identical area. Therefore (borrowing the words of Dalton J. in the judgment Exhibit “3”) I say, “It is true that there is no plan of the area in evidence, which is to be regretted, but under the circumstances set out above. . .for the purpose of deciding the question in dispute in this case, a plan is not essential, although it would undoubtedly have been most helpful” I hold, then, that the plaintiff has proved with sufficient clarity the identity of the land he claims in this suit.
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On the issue of the alleged trespass, the evidence given by P.W.2 (Obute Tei Tsu) and that given by the defendants and their witnesses, is of great significance.
The witness P.W.2 was very fair in his evidence; he did not hesitate to admit that some of the strangers in the Okwenya area occupy land which belongs to Manya Krobo. But he was emphatic that two years ago the defendants went upon the plaintiff s land, which he said is on the Somanya side of the Okwenya Stream, and that they commenced to farm it without first getting his (P.W. 2’s) permission as caretaker for the plaintiff. He therefore reported the matter to the plaintiff. Under cross-examination this witness said:
“It is true that in addition to the area the defendants have been farming all the time they have been on the
land, they have now gone into the plaintiff’s land.”
The old man Tetteh Kojo (D.W.2), the headman of the village, says that the land on which Obute Tei Tsu (P.W2) has built his village is across the Okwenya Stream, on the side of it opposite to the old village. Again, most of the defendants stated that the new cultivations (their making of which has led to this action) were on this stream where P.W.2 has built his new village. And D.W.3, Basic Rate collector for Manya Krobo, said that since P.W.2 left the old village he has not known where P.W.2 is, and that he (the collector) has never crossed the boundary of Manya Krobo land shown to him by Tetteh Kojo to collect tolls. But all witnesses who live at Okwenya said that P. W.2 has been living in his new village, which is not very far from the old one. If D.W.3, had gone on that part of the land to collect tolls he would have seen P.W.2; the only inference to be drawn form the evidence of D.W.3, therefore, is that the land now occupied by P.W.2 is not a portion of Manya Krobo lands.
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The evidence of the 1 co-defendant, and of the old man Tetteh Kojo, provide a clue how the defendants went to farm across the Okwe Stream. They claim that that area belongs to Manya, whilst P.W.2 maintains that it is Yilo land, and that he (P.W.2) is not liable to pay tolls or Basic Rate to Manya for occupying and farming that area.
I accept the evidence of P.W.2, Obute Tei Tsu, that the new farms made by the defendants (their making of which is the cause of the present action) were made by them on the plaintiff s ancestral land. That evidence of P.W.2 further satisfies me that the cultivations in question are separate and distinct from farms which the
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defendants had made on those portions of the land which they had occupied prior to the of [1959] GLR 323-332commencement of this action.
The submission of learned counsel that the plaintiff cannot be heard to complain of trespass when he has admitted that the defendants or some of them have lived on and farmed the land is not a fair interpretation of the evidence. Occupation of a portion of land does not necessarily amount to possession and occupation of a larger area of land, unless the whole area of land is under one holding or ownership. The evidence shows that the village where the defendants have lived all through the years, and the partions of land farmed originally, are not claimed by the plaintiff and that it was only when the defendants made cultivations on that portion of the land owned by the plaintiff s family that the plaintiff stepped in, and requested them either to attorn tenants to him or to quit the land. In those circumstances no estoppel by conduct can arise, the plaintiff not having been shown to acquiesce in the defendants’ exercising rights of ownership of his land in manner adverse to his title.
I now pass on to the 2nd co-defendant. His case is that the land in dispute is the property of his family, the Padi Keteku, or Ologo family, of Yilo Krobo, i.e the family of the Paramount Stool of Yilo. He admitted that he is not the head of that family, and has not been authorised by the family to represent them in this suit. Upon that admission I hold that he has no locus standi in the case.
But the 2nd co-defendant has a second string to his bow. He claims that all lands in the area, farmed originally by subjects of Yilo Krobo, are his individual property. He says that his ground for that claim is as follows. Some time in 1953 one Nana Ofori Aby Agyei, Odikro of Abenase, sued one Kwasi Nwah, claiming the lands from Okwenya to Moyosi. On that occasion the Konor and the elders of Yilo Krobo refused to assist Kwasi Nwah to defend the suit, alleging that the land was unfertile, and not worth fighting for. Upon this, the 2nd co-defendant got himself joined as a co-defendant in that suit, and he defended the suit to a successful end. In support of these contentions, he put in evidence Exhibit(i), being a certified copy of an order of the Land Court made on the 20th November, 1953, in Transfer Suit N. 24/1953. But so far from supporting the contention of the 2nd co-defendant, that exhibit confirmed the evidence given by the plaintiff when he was cross-examined on that issue by the 2nd co-defendant, viz that the Yilo Krobo State at first authorised the 2nd co-defendant to be joined as a party to the suit, not in his private capacity but as representative of the whole of the Yilo Krobo State; but for good reason the State later had him
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removed, and caused one Tetteh Dedu II to be substituted in his stead. The order Exhibit (i) is the order of the Court substituting the said Tetteh Dedu II for the 2nd co-defendant. The 2nd co-defendant thus himself disproved by documentary evidence the case which he tried to make by his oral evidence.
Again, as a result of allegations made by the 2nd co-defendant that he had applied unsuccessfully to the Registry of this Court for a certified copy of the judgment in that case the court sent for the case-docket. When it was brought, it showed that the case had not been heard on its merits, but was struck out for want of prosecution.
But even if the evidence given by the 2nd co-defendant were true, I must confess that I know of no law in this country which would in those circumstances make the land, the subject matter of suit, become the individual property of the 2nd co-defendant.
I have completed excluded from consideration the whole of the evidence, oral and documentary, of criminal prosecutions (either by Yilo or Manya against people farming portions of the Okwenya lands) for alleged trespass.
I have given very careful consideration to the evidence for the defendants, and I am satisfied that evidence on their behalf does not in any way weaken the case made by the plaintiff. The best that the defendants did was to show that they did not know that the plaintiff owns any land in the area, that in their belief the whole of the Okwenya lands belong to Manya Krobo, that it was with the authority of Manya that they made the farms complained of, and that in any event those farms were made on one and the same piece of land which they have farmed for many years.
I have no hesitation in rejecting the evidence that for 20 years the defendants cultivated just one area of land, and never shifted to another portion. It is incredible that a farmer in this country would make a food-farm at one and the same spot year in, year out, without the piece of land getting exhausted of its fertility, and having to remain fallow for a number of years. When I put this situation to one of the defendants, he immediately realised how ridiculous his evidence was. He then qualified his evidence, and said that he divided his plot of land into two halves, and farmed the portions in alternate years. I do not believe that evidence either.
I find that the plaintiff is the owner of the land claimed in his writ of summons. I find also that the defendants have trespassed upon that land, and that they did so upon the instigation of the 1st co-defendant.
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There will be judgment for the plaintiff against the defendants, the 1st co-defendant and the 2nd co-defendant for declaration of title to the land as claimed, and for £50 damages for trespass against all the defendants and the 1st co-defendant jointly and severally.
If the plaintiff had claimed a perpetual injunction he would have been entitled to it, and I would have given it. But he claimed only an interim injunction, perhaps because the action was instituted in the Native Court, whose jurisdiction to grant an injunction is limited by statute to an interim injunction; no amendment has been applied for. As the suit is determined by this judgment, there would be no purpose in making an order for an interim injunction. I hope, however, that no cause will be given him to sue later in the Court for perpetual injunction.
DECISION
The plaintiff will have his costs against the defendants and 1st co-defendant, fixed at £60; and his costs against the 2nd co-defendant, fixed at £30.
