NTIM v. BOATENG [1963] 2 GLR 97

DIVISION: IN THE SUPREME COURT

DATE: 24TH JUNE, 1963

BEFORE: ADUMUA-BOSSMAN, CRABBE AND BLAY JJ.S.C.

 

CASES REFERRED TO

(1) Amodu Rufai v. J. Ricketts (1934) 2 W.A.C.A. 95

(2) Ayitey Cobblah v. Tettey Gbeke (1947) 12 W.A.C.A. 294

(3) Ntrama v. Attia (1956) 1 W.A.L.R. 94, W.A.C.A.

(4) Angmor v. Ter (1943) 9 W.A.C.A. 148

(5) Breton v. Cope (1791) Pea. (N.P.) Reps. 43; 170 E.R. 72

(6) Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C.

(7) Sintim v. Apeatu (1936) 2 W.A.C.A. 201, P.C.

(8) Ababio v. Darkwa (1956) 1 W.A.L.R. 124, W.A.C.A.

(9) Sasraku v. David [1959] G.L.R. 7, C.A.

(10) Angmor v. Yiadom [1959] G.L.R. 157, C.A.

(11) United Products Ltd. v. Afari: Adumea (Claimants) (1929) D.Ct. ‘29-’31, 11

(12) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18

(13) Fengl v. Fengl [1914] P. 274

(14) Nsirem v. Nwakerendu (1955) 15 W.A.C.A. 71

(15) Oshodi v. Imoru (1936) 3 W.A.C.A. 93

(16) Oshodi v. Balogun (1936) 4 W.A.C.A. 1

(17) Bokitsi Concession Enquiry (1903) 1 Ren. 239

(18) Fiscian v. Nelson (1946) 12 W.A.C.A. 21

(19) Nchirahene Ado v. Buoyemhene Wusu (1940) 6 W.A.C.A. 24

(20) Aradzie v. Adiankah (1923) F.C. ‘23-’25, 52

(21) Akpan Awo v. Cookey Gam (1913) 2 N.L.R. 100

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

(23) Abbey v. Ollennu (1954) 14 W.A.C.A. 567

(24) Allotey v. Essien (1958) 3 W.A.L.R. 527

(25) Akwei v. Cofie (1952) 14 W.A.C.A. 143

(26) Nkum v. Andoh [1959] G.L.R. 358

(27) Suleman v. Johnson (1951) 13 W.A.C.A. 213

(28) Nana Kwa Bom III v. Haizel, Selected judgments of West African Court of Appeal, June-August 1951, p. 16 unreported.

NATURE OF PROCEEDINGS

APPEAL from a decision of Ollennu J., reported in [1961] G.L.R. (Pt. II) 671, reversing the judgment of the Kwahu-West Local Court which dismissed the plaintiff’s claim for possession and damages for trespass to certain parcels of land which he alleged he purchased from the Beponghene.

COUNSEL

Hayfron-Benjamin (with him Sir Edward Asafu-Adjiaye) for the appellants.

William Ofori-Atta for the respondent.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

The action resulting in this appeal was tried in the Kwahu-West Local Court constituted by a local court magistrate. The plaintiff-appellant-respondent (hereinafter called the plaintiff) by his writ of summons issued in respect of two parcels of land described therein claimed: (1) recovery of possession of such portions thereof as were

[p.100] of [1963] 2 GLR 97 being wrongly trespassed upon by the defendants-respondents-appellants (hereinafter called the defendants) and (2) £G50 damages for trespass against the defendants jointly and severally. The said two parcels of land are situate and lying contiguous to each other and together have the appearance of forming one whole sexagonal or six-sided shaped parcel of land as appears in the plan, exhibit A. ‘The parcel described in the first schedule in the summons is a relatively small one and is claimed under a deed of exchange which for some inexplicable reason was tendered in two parts, the whole of the contents except the schedule as exhibit N, and the schedule containing the descriptions of the lands, as exhibit C. The parcel described in the second schedule in the summons is a much larger one and is claimed under a customary sale and purchase. At the trial, however, the evidence appears to have been directed, for the most part, to the question of the customary sale and purchase of that larger plot. The magistrate gave judgment for the defendants against the plaintiff, holding, with regard to the small plot, that the deed of exchange was of no valid effect by reason of default in obtaining the concurrence of the local council in control of the area or district where the land is situate under section 75 of the Local Government Ordinance;1 and with regard to the large plot, that the plaintiff did not prove or establish a completed or perfected customary sale and purchase.

The plaintiff thereupon appealed to the High Court, Accra, where the appeal came to be heard by Ollennu J. (as he then was). He held that the transaction embodied in the instrument, exhibits N and O did not come within or under the purview of section 75 of the Local Government Ordinance; and that the evidence available at the trial sufficiently established a customary sale and purchase. He therefore set aside the magistrate’s decision and substituted a judgment for the plaintiff granting him the recovery of possession and the £G50 damages for trespass claimed. Against that judgment the defendants have brought this appeal, and filed a number of grounds which were argued collectively as amounting, in substance, that the appellate court was wrong in setting aside the findings of fact made by the trial court on available relevant evidence, and that its decision is against the weight of the evidence. As already indicated, the claim to the small plot under the instrument, exhibits N and O engaged very little of the trial court’s attention, and indeed of the parties, with the result that the issue which substantially occupied the attention of all concerned, i.e., the parties, witnesses, and the magistrate, was whether or not there had been a completed or perfected customary sale and purchase of the large plot. As to that issue, the plaintiff’s case was that about 20 years before the action, he negotiated with Beponghene Kwadjo Agyare for the purchase of the land, and the Ohene deputed his elders, including the fourth defendant, Asiedu Kwaku, in particular, who went and demarcated the land for him and put him in possession; that subsequently, at a time when he had completed payment [p.101] of [1963] 2 GLR 97 of the purchase price in the lifetime of Beponghene Agyare, the latter directed that the ceremony of cutting guaha should be performed for him in the house of Kwaku Asiedu and this was done. His words were: “I performed every necessary custom in the house of Kwaku Asiedu, the fourth defendant herein. It was the co-defendant’s predecessor who directed that the necessary custom of guaha be performed in the house of the fourth defendant. When the necessary custom of guaha was performed I had paid the full cost of the purchase price.” The case of the co-defendant on the other hand was that although it was true that the plaintiff negotiated for the purchase of the land, as he was informed upon his installation about ten years before the action, he was further told that the plaintiff, “had not paid the full cost of it and also the necessary customary guaha had not been performed. Ever since I became the Ohene of Bepong, ten years ago, I had been trying to get him to come to complete payment of the land to perform the necessary custom, i.e. guaha, but he was not forthcoming . . . The sum of £G225 was paid to me as part-payment but not a final payment.”

After hearing all the evidence and inspecting the disputed area, the trial magistrate when considering the respective cases, expressed certain views on aspects of the case before coming to his final conclusion on the main question in controversy, and those expressions of views were these:

“(1) I have my doubts as to whether at the time of negotiating the sale of the land in dispute a complete demarcation of the boundaries was effected and agreed upon by both parties. Though the plaintiff said the whole land was demarcated, the co-defendant denied.

(2) The most important evidence, exhibit O which is the conveyance [deed of exchange] on the land in dispute [more accurately, one of the parcels in dispute] which should have been of real weight and reliability is, unfortunately, without effect, because the confirmation or concurrence of the local council in whose area of authority the land is situate has not been sought as required by section 75 (1) of the Local Government Ordinance, 1951 . . .

(3) The following flaws have also been observed which . . . render the sale incomplete; i.e., (i) no receipt shows final payment of the purchase price mentioned by the plaintiff; (ii) the guaha custom which finalises sale of land according to the Akan custom was not performed; (iii) apparently and undoubtedly a full and complete payment in respect of the land in dispute has not been made.”

He then expressed his final conclusion on the main issue in these words:

“The intended sale has not been finalised or validated.”

It falls, firstly, to consider how far the foregoing expressions of views, and the ultimate conclusion, are, or are not, justified or warranted; bearing in mind these words of Webber C.J. (Sierra Leone) in Amodu Rufai v. J. Ricketts:2 “This is a claim for a declaration of title to land and the onus [p.102] of [1963] 2 GLR 97 of proving ownership is on the plaintiff. The result depends on the strength of the plaintiff’s and not on the weakness of the defendants’ case,” and also these words of Harragin C.J. in Ayitey Cobblah v. Tettey Gbeke:3 “It is a recognised principle in land cases and it does not admit of argument that the plaintiff, when claiming a declaration of title, must succeed on the strength of his case.”

Turning then to examine the expressions of views, and firstly the view that it is doubtful whether there was a complete demarcation of the whole area of the larger of the two parcels claimed: there would appear to be justification for it. There can be no doubt that upon the plaintiff’s claim to a customary purchase, the first essential element to be established is the demarcation of a clear and definite area, the subject-matter of the transaction. So in Sarbah’s Fanti Customary Laws (2nd ed.) at pages 86-87, the learned author dealing with the essentials or requirements of a customary transfer of land on sale or purchase, refers to this particular requirement at page 86, saying:

“ . . . there must be . . . 3 The marking out or inspection of the land and its boundaries required on a customary sale of land, no formal transfer of boundary marks.”

Again in Ntrama v. Attia,4 it was held that:

“as there was no evidence that there had been the public demarcation of boundaries, required on a customary sale of land, no formal transfer of title to the plaintiff had taken place.”

In the instant case therefore, it was undoubtedly part of the onus, upon the plaintiff, there being no document available in which the area of the land, the subject-matter of the sale or purchase transaction, is acknowledged by the Bepong stool, and notwithstanding that he had set out the boundaries in his summons, to give evidence himself as to how the boundaries so described by him in his summons were demarcated for him, and then to adduce confirmatory evidence of witnesses such as boundary owners or others who have knowledge of the boundaries demarcated for him. He himself, however, did not say a word about demarcation of the land for him, and the only witness he called who testified that the land was demarcated for him did not give the boundaries of the area demarcated, and, worse still for him, testified unfavourably when, under cross-examination by the defendants, he stated as follows:

“I remember you telling me at the time I came to inspect the land at the request of Beponghene, that you could not complete the demarcation of the land to be sold. I do not know the extent of the land sold to the plaintiff. I remember there are no pillars shown on the land sold to the plaintiff.” It is also to be observed that the plaintiff gave no particulars at all either in his summons as amended, or in his evidence, of the dimensions of the area the subject of the sale and purchase transaction. That an

[p.103] of [1963] 2 GLR 97 undetermined and indefinite area cannot be the subject of a completed and perfected customary sale and purchase is exemplified by the case of Angmor v. Ter,5 where Kingdon C.J. (Nigeria) delivering the judgment of the court stated as follows:

“The custom is that, after the bargain of sale and purchase is complete, the purchaser’s ‘bottom’ boundary . . . is demarcated and the direction of the two side boundaries indicated but the points to which they respectively extend are not fixed then; when payment of the purchase price has been completed the ‘top’ boundary . . . is demarcated between two points which are then fixed, and Guaha is then cut, and that has the effect of passing ownership.” It was necessary in the instant case for the plaintiff to prove affirmatively that the areas occupied by the defendants are all within the boundaries clearly demarcated for him as mentioned or set out in his amended summons, but no evidence of demarcated boundaries as described in the summons was adduced. In the course of the plaintiff’s evidence he said, “I beg to tender in evidence one large plan, Worobong Forest Reserve on which the disputed area is shown (exhibit A); and one small plan on which the land in dispute is shown.” Later on he explained: “I had the copy of plan in evidence, exhibit A, from the Forestry Department, Accra,” and he would seem to have thought that the production of those plans proved the demarcation of the areas shown on them for him; but it is scarcely necessary to point out that he was mistaken in this view, and that the production of those plans simpliciter was no more than further description of the areas of land which he was claiming. In these circumstances, and having regard especially to the unfavourable evidence of his own first witness that he was informed that there was not a full and complete demarcation on the occasion when he went to inspect at the request of Beponghene, Nana Agyare, it can hardly be urged with any degree of justification that the trial magistrate had no good grounds for expressing doubts as to whether a complete demarcation, embracing the areas now claimed as wrongly occupied by the defendants, was made for the plaintiff at the time of the original transaction. Passing on to the second expression of view as to the deed of exchange, exhibit N, being of no effect for lack of concurrence of the local council, assuming the magistrate was right in his view that the instrument required the consent of the local council to validate it, he was obviously not right in his further view that because it is ineffectual to transfer title, it is, or must be, also ineffectual, in so far as passages in it might provide evidence on some of the controversial facts in the case. It may be void in so far as transfer of title is concerned, but nevertheless quite valid and operative, in so far as it provides evidence by means of statements contained in it made by representatives of the Bepong stool, which may be relevant to some of the questions in controversy in the case; for, as explained in Phipson on [p.104] of [1963] 2 GLR 97 Evidence (9th ed.) (1952) at page 236, under heading “Form of the Admission” “. . . Even statements in Cancelled or Invalid Instruments are receivable.” See Breton v. Cope.6 In these circumstances it cannot be said that the learned appellate judge’s criticisms of the trial magistrate’s expressed views as to the evidentiary effect of the deed of exchange, exhibit N, were unwarranted. The point has now been raised, however, that the instrument, exhibit N, is, in fact, legally inadmissible; so that on grounds other than those advanced by the magistrate, it is submitted that his view that the instrument, exhibit N, affords no support to the plaintiff’s case, happens to be correct and sound. This undoubtedly is one of the major points for decision in the appeal, but it will be more convenient to deal with it at a later stage in this judgment. With regard to the third expression of views as to certain flaws in the customary purchase, the most important flaw mentioned without doubt, is that, “the guaha custom which finalises sale of land according to Akan custom was not performed.” By that decision the magistrate appears to have rejected the plaintiff’s evidence when he stated, under cross-examination by co-defendant, as follows: “I performed every necessary custom in the house of Kwaku Asiedu, the fourth defendant herein. It was the co-defendant’s predecessor who directed that the necessary custom of guaha be performed in the house of the fourth defendant. When the necessary custom of guaha was performed I had paid the full cost or the purchase price.” The question arises whether the trial magistrate had any good or sufficient reasons for the rejection of the plaintiff’s evidence. The answer must depend on whether or not the sum total of the evidence adduced by and for the said plaintiff conformed to, or reached, that standard of proof which is required for “demonstrating beyond reasonable doubt that the title to the disputed land is in him,” as Lord Alness pointed out in Kponuglo v. Kodadja7 Performance of the ceremony or the custom of cutting guaha is the crucial and decisive act among the set of acts or performances which cumulatively constitute the ceremony of transfer of absolute ownership or title according to customary law. So in Sintim v. Apeatu,8 Lord Maugham delivering the judgment of the Board of the Privy Council referred to, “the ceremony of cutting the ‘Guaha,’ a very important ceremony which, according to the evidence would have the result of transferring the property in the land to the purchasers, providing that the persons who performed the ceremony were properly authorised so to do . . .”

In a subsequent case, Ababio v. Darkwa,9 Korsah J.A. (as he then was) also referred to it as, “the ceremony of ‘Cutting of Guaha’ without which no sale of forest land can be deemed to vest title in the purchaser.” (See also Sasraku v. David10 and Angmor & Co. v. Yiadom11. As therefore [p.105] of [1963] 2 GLR 97 proof of the performance of that custom or ritual is equivalent to proof that title in the land has been transferred, it would seem to follow that the pronouncements as to the standard of proof required to establish title, necessarily apply to proof of this special custom or ceremony of cutting guaha. With regard to the question of the standard of proof required to satisfy the court of a transfer of ownership, in United Products Ltd. v. Afari: Adumea (Claimants)12 a case in which the question arose as to the standard of proof required to satisfy the court as to a customary transfer of ownership of land in the presence of witnesses by way of gift, Deane C.J. has provided us with some guidance by his pronouncement as follows: “It is contended . . . that claimant has called no witness to support her statement as to this gift and that that being so the gift is not proved. . . . It appears from the evidence that of the many people present when the gift was made only one is still alive and therefore we must take it that a witness who might have been called in support of claimants’ case was not called . . . [However] I do not consider that the fact that she has not called an eye-witness who was present when the gift was made is ipso facto sufficient to defeat her case and that in fine a gift cannot be proved as contended unless a witness to it is produced. The proving of a gift before the Court must in my opinion be proved as any other fact is proved and when a person who alleges a gift made in the presence of a witness does not call that witness that is a fact that merits most serious consideration but when the other circumstances in the case all most strongly support the allegation and are in fact only explicable on the basis of the allegation being true the Court is I conceive quite entitled to come to the conclusion that the allegation is proved.” Applying the test specified in that case in the consideration of the circumstances of the instant case, in which it is true to say that the plaintiff substantially failed, at any rate omitted, to call the eye-witnesses to the transaction to testify on his behalf, it appears that the trial magistrate did not feel satisfied that, in the words of Deane C.J., “the . . . circumstances in the case all most strongly support the allegation [by the plaintiff, of a perfected purchase] and are in fact only explicable on the basis of the allegation being true.” Of those surrounding circumstances, the more conspicuous are: firstly, the two eye-witnesses to the transaction whom the plaintiff called, both gave unfavourable evidence against him in respect of this crucial matter of the performance of the ceremony of cutting guaha. The first witness, Yaw Poku testified positively, under cross-examination by the defendants, that, “the customary guaha, i.e., slaughtering of sheep, etc. to mark the final disposal of the land has not been performed,” and under cross-examination by the co-defendant, “As the necessary customary guaha has not been performed, it means the whole deal has not been finalised.” Then the third witness, his own son, Baah Asare, who under cross-examination by the defendants testified that he, “was there when the plaintiff purchased the land,” when further cross-examined by the co-defendant, he gave the following rather striking and damaging testimony, [p.106] of [1963] 2 GLR 97

“I do not know whether the necessary custom of guaha has been performed or not.” Secondly, his (i.e., the plaintiff’s) own evidence as to the performance of the guaha ceremony was of a somewhat incredible nature in that he alleged that the performance took place in a rather unusual and unlikely place, namely, the house of one of the Beponghene’s messengers, namely, Kwaku Asiedu, who was sent to demarcate the land for him, instead of, possibly, the Beponghene’s Ahenfie, if for some reason it became necessary to go to a house for the performance; or the more usual place recognised by customary usage for the performance, namely, the site of the land to be transferred (see the description of the ceremony by Korsah C.J. in Angmor v. Yiadom13). Thirdly, upon his own case that, “When the necessary custom of guaha was performed I had paid the full cost of the purchase price,” by which he, in effect, admitted the co-defendant’s contention that the terms of the transaction were, inter alia, that the performance of the guaha ceremony to effect final transfer of title was to take place only after completion of the payment of the purchase price, the circumstances irresistibly point to the purchase price not having been paid or settled in full by the time of the dispute and the institution of the action. In this connection, the first noteworthy circumstance is that the plaintiff eventually admitted, although at the outset he grossly exaggerated the purchase price to be £G3,150, that the true figure is £G1,332, as indeed is borne out by receipts, exhibits D, K and M, tendered by himself. Of that amount of £G1,332, however, his payments on account vouched for by receipts, total up to £G777, leaving a balance of £G555, unaccounted for at the trial, as to which he did not suggest that he had made payments for which receipts had not been issued, or that he had lost some of the total number of receipts given to him in respect of his payments of the purchase price. It follows that, on the face of his own testimony, payment of the purchase price had not been completed by the date of the dispute. Again, according to him, it was after he had completed payment that the late Beponghene Agyare directed that the guaha ceremony should be performed for him in Kwaku Asiedu’s house; yet the receipt dated the 11th March, 1953, exhibit C tendered by himself, establishes conclusively and indisputably that by that date, some considerable time after the death of Beponghene Agyare and in the reign of the co-defendant, his successor, he (the plaintiff through his two messengers T. K. Baah and Dusey Kwaku then paid £225 being part-payment for Bepong stool land sold to him during the reign of Nana Kwadjo Agyare of Bepong. That was the latest receipt in the plaintiff’s possession, and the terms of it would seem to decisively dispose of his contention that he completed payment whereupon the ceremony of cutting guaha was performed for him in the house of Kwaku Asiedu in the lifetime of Beponghene Kwadjo Agyare and by his directions. Having regard therefore to the features about the transaction to which reference has been made (supra) on which the trial magistrate based his expressions of views and his final conclusion on the main issue or question in controversy in the

[p.107] of [1963] 2 GLR 97 case, it cannot rightly be urged, in my view, that he did not have any adequate or good grounds or reasons for holding that, “Apparently and undoubtedly a full and complete payment in respect of the land in dispute has not been made; [and] the guaha custom which finalises the sale of land according to the Akan custom was not performed.” Applying the test laid down by Deane C.J. in the United Products v. Afari: Adumea (Claimants’) case, (supra), it is clear that, far from it being the case that “the other circumstances in the case all most strongly support the allegation [of a perfected purchase] and are in fact only explicable on the basis of the allegation being true,” in the instant case, the more important circumstances and considerations, tended rather to discredit and disprove the allegation. On appeal, however, as already stated, the learned appellate judge disagreed with the conclusion of the trial magistrate on the main issue. He expressed his views and conclusions on that main issue in these words.14

“The most important thing in sale of land by customary law is that as much publicity as possible should be given to the fact of the transfer of ownership from the vendor to the purchaser. The performance of the guaha custom is part of the acts of publicity. Therefore where there is sufficient publicity of the transfer by unequivocal acts on the part of the transferor, that would be sufficient evidence of a concluded valid transfer by customary law, even if there is no clear evidence of the performance of guaha custom. Now in this case there is a most important piece of publicity, and it is this; a large area of land including the one demarcated for the plaintiff was declared a forest reserve not long after the transaction between the stool and the plaintiff. Later, at a meeting with the Forestry Department at the offices of the District Commissioner at Mpraeso, the stool requested the Forestry Department to release that land out of the reserve to the plaintiff . . . That evidence shows sufficient publicity that ownership of the land has passed from the Bepong stool to the plaintiff. In my opinion that evidence coupled with the possession of a portion of the land by the plaintiff and the evidence of the plaintiff of the performance of guaha, provide ample proof of transfer of ownership of the land from the Bepong stool to the plaintiff.”

With regard to the foregoing arguments or reasoning and the final conclusion of the learned judge, it seems to me, with due respect, that the foundation of it is a misconceived and erroneous one, for the statement that “the stool requested the Forestry Department to release that land out of the reserve to the plaintiff,” is not borne out by the available evidence. The learned judge referred to the alleged request as having been made by the stool “at a meeting with the Forestry Department at the offices of the District Commissioner at Mpraeso.” The plaintiff himself did not rely on this alleged request by the stool to release the land to him, as part of his case and did not testify at all about it. His witness who testified concerning a meeting at the district commissioner’s office, Mpraeso, at which release of the land was discussed was the first witness, Yaw Poku. But although he [p.108] of [1963] 2 GLR 97 spoke about release of the land to the plaintiff, he did not testify that that was at the request of the stool, and his material evidence was this:

“About seventeen years ago the Forestry Department invited us [presumably Beponghene and elders] to a meeting at the district commissioner’s office, Mpraeso, and agreed that the disputed land which was then within a forest reserve be released to the plaintiff herein; and accordingly it was released to him.” As will have been noticed the witness did not expressly say, or in any way imply, that the release was at or upon the request of the Beponghene or his elders. The plaintiff ‘s second witness, Joseph Sackitey, who also testified about the release of the land to the plaintiff, also does not support the learned judge’s assertion that the release of the land was at the request of the stool. His version was this: “About fourteen years ago the plaintiff herein was called upon by the Forestry Department to go and have released his land within the reserve to him. The plaintiff accordingly went and had his land released to him. We then started cultivating our farms.”

His third witness, his son, Baah Asare followed with another version that:

“About seven years ago the co-defendant herein approached the Forestry Department for the release of the land in dispute to the plaintiff herein. I was later granted a portion of the land by the plaintiff herein to be cultivated.” It does not however appear from the nature of the evidence that the witness testified about an occurrence at which he was present as an eye-witness, nor does the learned judge’s description of the occasion to which he was referring suggest that the third witness also referred to the same occasion. Moreover, after the plaintiff’s witnesses, the co-defendant gave evidence and was cross-examined by the plaintiff about this matter of an alleged request by him to the Forestry Department to release the land in dispute from the reserve, and his answers were these: “I remember asking the Forestry Department to release my lands within the forest reserve to me including the land in dispute. I do not remember going together with you [the plaintiff], Asiedu, and a representative of Abene [the Omanhene] to the Forestry Department for the release of the land in dispute from the reserve.” In the circumstances pointed out (supra), firstly that there is no evidence that it was at the request of the representative of the Bepong stool that the Forestry Department released the land in dispute, and secondly, the conflict of evidence between the plaintiff’s witness and the co-defendant as to whether the area in dispute was released to the plaintiff or rather to him the co-defendant, it seems difficult to understand how the learned judge came to make the categorical statement that, “the stool requested the Forestry Department to release the land out of the reserve to the plaintiff,” and to base such a crucial finding as to transfer of title on that statement. But it seems to me further, that even if the plaintiff’s first witness, Yaw Poku, had been clear in his evidence that it was at the request of the Beponghene and his elders that the area in dispute was released to

[p.109] of [1963] 2 GLR 97 the plaintiff, and there had been no contradiction of that evidence by the co-defendant, that evidence was not such as to entitle the learned judge to draw the conclusion which he drew, in the absence of any evidence from a responsible officer of the Forestry Department that the Beponghene categorically admitted the plaintiff’s absolute ownership of the land and requested release to the plaintiff on that ground. In the absence of such evidence from the responsible officer of the Forestry Department, the evidence of a request by the Beponghene to release the land to the plaintiff, would be conduct equally consistent with the position that the stool merely recognised the plaintiff’s right of occupation pending completion of payment of the purchase price before the ceremony of cutting guaha is performed. As to how the forest reserve came to affect the land the subject-matter of the transaction between the plaintiff and the stool, it appears from the evidence of the plaintiff’s second witness Sackitey and the third witness, Baah Asare, that the reserve affected the land from the very outset, i.e., from the time of the negotiation and the consequential demarcation and putting of the plaintiff in possession. So Baah Asare testified that, “About 30 years (or 20 years) ago the plaintiff herein purchased the land in dispute from Beponghene Nana Agyare. The land was within a forest reserve.” If then the position was that as soon as at the time that the plaintiff bought it, the land was affected by the reserve, it seems most unlikely that when the plaintiff was introduced to the responsible forestry officers, whether by the Beponghene or his representative, or the plaintiff himself proprio motu, the details of the terms of the transaction under which he and his people were occupying, would be explained fully to the forestry officers. In all probability the plaintiff would just be introduced or represented by representatives of the stool only in general terms as being a purchaser of the area occupied by him, without it being explained that he had only made part-payment of the purchase price and was not absolute owner but would become so in due course when he had completed paying the purchase price and guaha had been cut for him. Therefore he (the plaintiff) would be referred to by all concerned as “purchaser” or “owner” without anybody necessarily meaning that he was a “purchaser” or “owner” in the legal sense of either of those words. In this connection it is significant that the witness Yaw Poku who gave the evidence about a meeting at the district commissioner’s office at which the land was released to the plaintiff, went on to testify that guaha had not been cut for the plaintiff and the whole transaction not concluded; and it seems clear therefore that it is exactly the situation which I have just been endeavouring to describe, which he also described in his evidence as a whole, namely, a situation in which all concerned recognised and referred to the plaintiff as the “purchaser” and “owner” of the land, but it was at the same time clearly understood that the transaction had in due course to be completed by the performance of the ceremony of cutting guaha. The important point however, is that for the learned judge to be justified in the view he expressed to the effect that the representatives of the

[p.110] of [1963] 2 GLR 97

Bepong stool by their words and conduct made an admission against their interest by clearly and categorically representing to the Forestry Department that the plaintiff was absolute owner of the land, there should have been positive evidence to that effect from some responsible officer. In the absence of such evidence, in my view, he was not justified in drawing the inference or conclusion that a request from the representatives of the stool to release the land to the plaintiff – which, as I have endeavoured to show, is not borne out by the evidence – constitutes what he describes as, “unequivocal act on the part of the transferor that would be sufficient evidence of a concluded valid transfer by customary law, even if there is no clear evidence of the performance of guaha custom.”

The learned judge found further support for his view that the guaha ceremony had been performed and title had passed, in the evidence provided by the deed of exchange, exhibit N. He first of all dealt with the trial magistrate’s expression of view that the instrument required the concurrence of the local council to validate it, and held that15: “The local court magistrate erred in the views he expressed on this section [75 (1)] of the Ordinance [the Local Government Ordinance, Cap. 641 as it affects this case. Firstly the sale and transfer upon which the plaintiff based his case took place long before the said Ordinance came into force, the said transaction cannot therefore in any way be affected by the Ordinance, since the Ordinance is not retrospective in its application. Secondly, the document is not a transfer which involves payment of money or of any valuable consideration, therefore the absence of concurrence by the council does not affect its validity.”

On this question of the necessity for concurrence by the local council in the instrument or otherwise, it appears to me that, with respect, the learned judge misconceived the situation. He said, “the transfer upon which the plaintiff based his case took place long before the said Ordinance,” but that statement was factually inaccurate. The Bepong stool (with the Omanhene’s stool possibly as concurring party) purported by the instrument to be making a grant of stool land at the date of the instrument for the first time in exchange for land of the plaintiff, and the transaction, undoubtedly at a time when the Ordinance was in operation, would be caught up in and by the Ordinance, if the conditions of section 75 (1) applied to the said transaction. Now it seems to me that the provisions of section 75 (1) that, “Any disposal of any interest or right in land . . . which could, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such valuable consideration,” are applicable to the transaction. It will be observed that the terms of the section are not that in the case of a transfer or disposal to a stranger (who by virtue of his not being a subject is not entitled to free use of land) the disposal must or should actually involve the payment of valuable consideration, but merely where the disposal “could, by reason of its being to a person not entitled by customary law to the free use of land, involve the

[p.111] of [1963] 2 GLR 97 payment of any such consideration,” in other words, as long as it is to a stranger liable to be charged for the land, although in fact he may not have been charged, concurrence appears to be necessary. Again in connection with the learned judge’s statement that, “the sale and transfer upon which the plaintiff based his case took place long before the said Ordinance came into force” – if a negotiated sale and purchase had been perfected by the performance of the ceremony of cutting guaha before the date of coming into operation of the Ordinance, then I would agree that an indenture executed between a representative of the stool and the purchaser to serve as a “permanent record,” as Lord Maugham suggested in the Sintim v. Apeatu case (supra), would not require the concurrence of the local council. Where however the transaction remains in the state of a negotiated but uncompleted sale and purchase when the Ordinance came into force, then, in my opinion, to the extent of the uncompleted portion of the negotiation, it is caught up in and becomes subject to the relevant section of the Ordinance because an effective or valid transfer comes into being only at that stage during the operation of the provisions of the Ordinance. In my view therefore, even if the deed of exchange, exhibit N, were admissible, it would not be effectual to support the title claimed by the plaintiff in respect of the parcel described in the first schedule to the instrument, more clearly set out in exhibit O. As already stated, however, the point has now been taken that the instrument is altogether inadmissible because it is unstamped. The point seems unanswerable, having regard to the case of Angmor v. Yiadom16 where the learned Chief Justice stated: “it purports to be an agreement relating to transfer of interest in or title to land. It is therefore an instrument which is liable to stamp duty. It is unstamped, and therefore could not be pleaded or admitted in evidence in any Court (vide sec. 15 of the Stamp Ordinance).” It was admitted without objection, but as pointed out per curiam in the Nigerian case of Abowaba v. Adeshina17: “There are certain types of evidence, such as hearsay, and unstamped . . . documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal “ (See also Fengl v. Fengl18 If then the position be that the contents of the deed of exchange, exhibit N, and the first and the second schedules thereto in which the parcels of land comprised in that instrument are described, i.e., exhibit O, be completely inadmissible so that all have to be excluded as evidence, as undoubtedly is the legal position, the learned judge’s observations that19 “the evidential value of the deed of exchange . . . is the admission made therein that the plaintiff ‘is the owner according to native customary law of the land described in the second schedule’,” would not seem to arise. The case then has to be considered, as the trial magistrate considered it, on the basis that there is no admission in favour and in support of the plaintiff’s allegation of a perfected purchase. But even if the instrument (exhibits N [p.112] of [1963] 2 GLR 97 and O) be not inadmissible so that some of its contents, which will be referred to presently, be available as evidence for the plaintiff, even then the plaintiff’s case, in my opinion, derived little or no support from it. The passages in the instrument which can possibly be relied on are two, namely, (a) the recital to which the learned judge referred that the plaintiff, “is the owner according to native customary law of the land described in the second schedule thereto” and (b) the indication in the description of the state of the land, as it appears in the first schedule and the plan, that the land forming its northern boundary is “the property of Kwabena Boateng.” But that which appears to be an admission of the plaintiff’s ownership contained or implied in those two passages or references in the instrument, can be readily understood in its true meaning when it is appreciated that the expressions are used only in a loose sense. One has only to note the terms of the receipts issued to the plaintiff where similar loose expressions are used, to appreciate the point sought to be made. The earliest of the receipts appears to be that dated the 19th May, 1928, exhibit M, in which, the acknowledgement of £300 is followed by the words: “being part-payment of land purchased at Amiaso from Odikro Kwadjo Adjare and Mankrado Animagyei.” A subsequent one dated the 3rd October, 1928, exhibit K acknowledged receipt of £32: “being part-payment of land bought from Odikro and Mankrado of Bepong.” A much later one dated the 29th March, 1938, exhibit D, acknowledged the sum of £235 4s.”paid on account of my land situated on the bank of stream Emia sold to them.” There are others with similar loose expressions, and when it is realised that the expressions appearing in them such as “purchased,” “sold,” and the like, only mean conditionally purchased or sold, subject to the completion of the payment of the full purchase price and the performance of cutting guaha ceremony, there is no difficulty in understanding the use of expressions and phrases which seem to convey the idea of absolute ownership in the deed of exchange, exhibits N and O. In that instrument as well as in the receipts, it appears reasonably clear that the expressions used seeming to convey the notion of absolute ownership at the date of each document, were only loosely used. As Foster-Sutton P. pointed out in Nsirem v. Nwakerendu20

“it is . . . necessary to bear in mind the fact that the term ‘owner’ is loosely used in West Africa. As the Board said in its judgment in the case of Kwesi Enimil and others v. Kwesi Tuakyi and another, Privy Council Appeal No. 49 of 1950, ‘Sometimes it denotes what is in effect absolute ownership; at other times it is used in a context which indicates that the reference is only to rights of occupancy . . .’ “ In this connection it is to be noted that although the instrument which was executed on the 14th October, 1952, purported to recite ownership in the plaintiff on that date, yet a few months thereafter on the 11th March, 1953, the plaintiff sent his people T. K. Baah and Dusey Kwaku to make part-payment of £225, “for Bepong stool land sold to him during the reign of Nana Kwadjo Agyare of Bepong” as appears clearly from receipt exhibit D. In these circumstances (i.e., that even if the deed of [p.113] of [1963] 2 GLR 97 exchange be admissible, its terms are by no means inconsistent with the co-defendant’s contention that the plaintiff was in occupation as ostensible owner subject to his complying with the conditions or terms which will vest him with title; but that in fact the contents of the instrument are legally inadmissible at all as evidence) it becomes clear that the further ground on which the learned judge held the plaintiff had proved title, was, with respect, misconceived. If the evidence provided by the deed of assignment is excluded, then the position which results, is that in respect of the smaller plot claimed under the said deed, the claim to declaration of title and recovery of possession and damages fails, because amongst other reasons the plaintiff adduced no other evidence of ownership of the said plot; and in respect of the larger plot, there was no admission of the plaintiff’s ownership, as the learned judge held. It follows, in my opinion, that the learned judge erred in setting aside the trial magistrate’s findings and conclusion, which were based on material and relevant evidence before him, on the main issue in the case. In my view the crux of the matter is whether or not the plaintiff completed payment of the purchase price to Beponghene Nana Agyare who thereupon directed the ceremony of cutting guaha to be performed for him. On that issue, it seems to me too plain for argument that the plaintiff’s case was decisively discredited by the evidence which he himself made available, confirmatory of the co-defendant’s case, of the part-payment of £225 to him (the co-defendant) on the 11th March, 1953, as per exhibit D. Now, in the view which I have taken of the case, it appears to be unnecessary to consider the question of acquiescence, or more accurately, conduct amounting thereto, which was also canvassed in the arguments before us. As, however, the trial magistrate considered it, wherefore the learned appellate judge was constrained to consider it, it seems not only desirable but necessary that the question should be dealt with and pronounced upon. In turning to consider the subject however, firstly, it should be remembered that there are two angles or aspects from which acquiescence has to be looked at and considered. So in Oshodi v. Imoru,21 Kingdon C.J. (Nigeria) points this out by stating as follows:

“It seems to me that in these cases there are two things which must be distinguished. The first is acquiescence in occupation over a period which would bar the original overlord from bringing an action for ejectment [recovery of possession] as in the case of Akpan Awo v. Cookey Gam (2 N.L.R. 67). And in the second is such acquiescence as would serve to pass the original rights of the overlord to the occupier. Very much more is required to establish the second than the first.”

What that seems to mean is this: that in respect of land occupied by a person sued as defendant, the plaintiff may have been content to claim declaration of this bare title or ownership, being prepared to concede or recognise the defendant’s occupation as lawful under him. In such a case, if the defendant should set up a defence that the plaintiff by his acquiescence in his occupation for a long period had brought about a situation in

[p.114] of [1963] 2 GLR 97 which it would be inequitable to grant the declaration, then the defendant has to adduce evidence of a considerable number or series of ostensible and glaring acts which are adverse and challenging to the title claimed in which the plaintiff has acquiesced for a relatively long period of years. As held by the Board of the Privy Council in Oshodi v. Balogun22 he has to, “establish a knowledge and a long continued acquiescence,” before the court can hold that the plaintiff’s title has been completely destroyed or extinguished, and therefore the declaration cannot be made in his favour. On the other hand, the plaintiff may be claiming ejectment or recovery of possession against the defendant; in that latter case, where the defendant sets up a defence that the plaintiff’s acquiescence in his (the defendant’s) occupation has disentitled him to the order for recovery, the defendant has to adduce evidence of relatively fewer acts which are challenging of the claim to possession, and for a relatively shorter period to succeed in that defence. Illustrative of the first-mentioned class of cases, is Oshodi v. Balogun (supra). In that case a person in the position of a member of family, occupying a plot of family land with an insignificant shed thereon, sold the plot for £25 to a purchaser in 1912; the latter in turn sold it for £66 in 1914 to Balogun who erected a valuable building worth £1,053 in place of the shed and occupied it without disturbance till 1924 when he mortgaged it to a mortgagee. In August 1927 following the mortgagee’s advertisement of the property for sale, the head of family came to be apprised of the full history of the property and opposed the sale, whereupon Balogun and his mortgagee sued claiming declaration against the head of family, alleging that the family’s conduct in making no claim to the plot as from 1912 when the first purchaser acquired it from the member of family, up to the date August 1927 when it was advertised for sale, constituted such acquiescence as destroyed or extinguished the family’s title in favour of the plaintiffs. The trial judge found that responsible members of the family did not know of the dealings concerning the plot till 1927 when the head forthwith opposed the sale, and he gave judgment for the family. On appeal, however, the appeal court held that acquiescence was established and gave judgment for the plaintiffs, whereupon the family appealed to the Board of the Privy Council. The Board in allowing the appeal, in their judgment delivered by Lord Maugham, stated as follows23:

“On a careful consideration of the evidence as a whole . . . their Lordships are forced to the conclusion that it is quite insufficient to justify . . . (contrary to the view of the learned trial Judge) that the Oshodi family acquiesced after the event in the sale in question . . . their Lordships are now deciding . . . in the circumstances of the present case . . . the plaintiffs have failed to establish a knowledge and a long continued acquiescence by responsible members of the Oshodi family sufficient to justify the decision that the plaintiffs have acquired an absolute title . . .”

[p.115] of [1963] 2 GLR 97

The Board proceeded to add that24:

“The question whether the defendants may not have some title to the property or some rights to remain in occupation of it, although they have failed in their wider claim, has not been raised in the action and their Lordships express no opinion upon it.”

That is to say, in respect of any claim to ejectment or recovery of possession which the family might make, the degree of acquiescence on their part though not sufficient to extinguish the family’s title altogether, may nevertheless be sufficient to bar a claim to recovery of possession.

The Balogun case decided in July was followed in November the same year 1936 by Oshodi v. Imoru (supra) in which Kingdon C.J. who delivered the judgment of the West African Court of Appeal, after pointing out the difference between acquiescence such as will bar a claim to ejectment, and acquiescence such as would serve to extinguish an original title – to which reference has been made (supra) – proceeded to state as follows25: “In the present case the respondents’ counsel admitted that there was no evidence to show that the plaintiff or his family knew of the conveyance executed in 1902 until, when he did hear of it, he instituted these proceedings. This being so, even though it be admitted that the family acquiesced in the first defendant’s occupation, how can it be argued that the plaintiff or his family acquiesced in the alienation from them of their reversionary rights when they had no knowledge that such rights were being challenged or interfered with? . . . I consider that in this case, just as the Privy Council held in the Balogun case; the evidence is quite insufficient to justify a finding that the family acquiesced after the event in the conveyance in question . . .” A local case of the same class is Bokitsi Concession Enquiry,26 where Morgan J. who delivered the judgment of the Full Court (Smith Ag.C.J., Nicol J. and himself) made his now classic enunciation of principle in these words: “. . . we are of opinion that the opposers [the Abinabinas] . . . have also failed to prove generally that the land in respect of which the Court below has declared the concession to be valid was ever attached to the stool of Abinabina. Assuming, however, that they had proved that at some former period it had been so attached, but that the Iamfuris had, without any definite permission being granted to them, occupied it without paying tribute and under such circumstances (as in the present case) as would cause them to believe themselves to be the owners of the land and to incur pecuniary responsibilities, in consequence of that belief we think it right to state that in our opinion it would be contrary to the principles of equity to allow the native law to apply in its entirety, such law being, as we understand it, that the original owner of land who has not specially divested himself of his ownership can, after any length of time and under any circumstances, obtain recovery of his land from persons setting up an adverse title whatever may be the detriment caused to such persons by the fact that the original owner chose to sleep on his rights.”

[p.116] of [1963] 2 GLR 97

In one of many subsequent cases in which the equitable principle enunciated was applied, namely, Fiscian v. Nelson,27 M’Carthy Ag.C.J. (as he then was) referred to that leading case in these words: “. . . the view was expressed by the Full Court in the Bokitsi Concession Enquiry (1902, Renner, 239) that a former owner would not be allowed to claim land where he had stood by for a long time while someone else occupied the land and incurred pecuniary commitments under the impression that he was entitled to the land, notwithstanding that prescription is unknown to native customary law . . . This obiter dictum has been followed in many decisions, and the rule it enunciated is well established.”

The learned acting Chief Justice then went on to formulate a most important complementary or supplementary principle by stating that28

“The period of time which will justify the Court in acting upon it varies greatly according to the circumstances, including the nature of the improvements effected on the land.”

The only other local cases of this class which might be referred to are:

(a) Nchirahene Ado v. Buoyemhene Wusu,29 where the court posed the question:

“ whether in this case the Plaintiff should be estopped from asserting that ownership owing to the Defendant having been led during his 200 years’ occupation to regard the land as his and so to spend money in improving it or defending his rights to it.” After due examination of all the circumstances the court was able to agree with the trial court’s finding that the evidence of acquiescence in occupation was not of that degree or standard which would serve to extinguish the title to land. The court also noted that: “The plaintiff in this case, is not claiming to recover possession of or to oust the Defendant from, the land, but merely to assert his ultimate right of ownership. . . .”30 and finally (b) Aradzie v. Adiankah,31 where in a claim for title to and injunction in respect of land, the defendant’s evidence of 200 years’ occupation originating in an entry without the plaintiff’s permission, was held by the trial judge, even on the assumption that the land was originally the plaintiff’s, to have extinguished his title, and the Full Court confirmed the decision. Turning to the other class of cases, where the occupation will at least, bar a claim to ejectment or recovery of possession, it is exemplified, as mentioned in Kingdon C.J.’s statement in Oshodi v. Imoru hereinbefore reproduced, by the leading Nigerian case on that branch of land law Akpan Awo v. Cookey Gam32 In that case, on the plaintiff’s claim for declaration and recovery of possession, it was proved that the defendants had occupied to the plaintiff ‘s knowledge for not less than 21 years, in the course of which they had permitted a European firm to construct and establish a factory on the land a little over ten years before the plaintiff’s claim in 1912. The Full Court of Nigeria, on an appeal from the Divisional [p.117] of [1963] 2 GLR 97

Court of the Eastern Province, per Webber J. (as he then was) made the following enunciation of principle33: “In our opinion, it would be wholly inequitable to deprive the Defendants of property of which they have held undisturbed possession and in respect of which they have collected rents for so long a term of years with the knowledge and acquiescence of those who now dispute their title, even if it were clear … that they entered into possession, contrary to the principles of native law. We do not decide this point in accordance with any provision of English law as to the limitation of actions, but simply on the grounds or equity, on the ground that the Court will not allow a party to call in aid principles of native law . . . merely for the purpose of bolstering up a stale claim.”

The principle thus enunciated was expressly approved by the Lords of the Judicial Committee of the Privy Council in Oshodi v. Balogun where Lord Maugham delivering the judgment for the Board, stated as follows34:

“. . . their Lordships do not desire to throw any doubt on the decision of the Full Court in the case of Akpan Awo v. Cookey Gam (2 Nig.Rep. 67) and other decisions of that character. In such a place as Lagos, where the native law is in some respects in a fluid state . . . it may well be just and equitable, in the absence of a statute of limitation, to hold it inequitable to deprive persons of property of which they have held undisputed possession for many years, and to decide that the knowledge and acquiescence of the native family who originally owned the land may fairly be presumed . . .”

With regard to local case of this class, in Adu v. Kuma35 the court observed that: “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 . . .”

Of many other cases it seems necessary to refer to only three with features very similar to the instant case. The first is Abbey v. Ollennu.36 The material facts were that the defendant by indenture dated the 7th September, 1935, purchased a plot of land from a vendor. Between that date and 1940, unknown to him the plaintiffs litigated with and obtained declaration of their title to a larger area including his plot. He commenced to build in 1940 and completed in 1945 and occupied from then till about May 1949 when the plaintiffs claimed recovery of possession and obtained an order for his ejectment. On appeal the Land Court held the plaintiff’s conduct in standing by while the defendant built and occupied from 1940 to 1949 was such acquiescence as precluded them from obtaining the recovery of possession they sought.

On a further appeal to the West African Court of Appeal, that court confirmed the Land Court’s decision in favour of the defendant, Foster-Sutton P. observing that37 “The respondent’s case was founded on the equitable doctrine of acquiescence which is summed up by Fry, J., in Willmott v. Barber (15 Ch.D. at p. 105).”

[p.118] of [1963] 2 GLR 97

It will be observed that the period of adverse occupation in that case was for nine years, and the nature of the improvement of the land was that a building had been erected on it. The second, Allotey v. Essien38 dealt with by the learned judge himself in which he applied not only the principle of acquiescence but of estoppel per rem judicata enunciated in Akwei v. Cofie.39 The facts found by him on which he founded acquiescence were that “the defendant went on the land in 1947 and commenced building thereon immediately; that he completed that building in 1948 and obtained a certificate of occupation thereof in February, 1949, and has been in occupation ever since.” The suit was in 1958, so that there was a period of eleven years, although for the purpose of the application of the doctrine the crucial period was obviously the period from 1947 to 1949 when the defendant occupied and built without any action being taken against him. In his judgment he stated40:

“Now, the principle of equity, which is the same principle of native custom, is that where an owner of land stands by and sees another person enter upon his land, in the honest belief that he has a good title to it, and spend money to improve it, and he takes no steps to warn that person, he will be estopped later on from asserting that the person who has so entered upon the land and spent money has no right to retain possession and occupation of the land.”

It is difficult to see what difference there is between Allotey v. Essien (supra) and the instant case having regard to the facts as to the improved condition of the land during a period of roughly seven years unchallenged occupation, as found by the trial magistrate on relevant available evidence in the instant case. The third and last case is Nkum v. Andoh41 where the court held that:

“If, therefore, for a period of 15 years the plaintiff’s family have sat by and allowed the defendant’s family to occupy the land, and, in the words of M’Carthy Ag.C.J. [in Fiscian v. Nelson] (supra) ‘to incur pecuniary commitments under the impression that they were entitled to the land’ . . . and spending money to establish villages and cocoa plantations on the land . . . then I have no hesitation in holding that in the circumstances of this particular case the plaintiff’s family are estopped by their conduct.”

The two different angles or aspects from which acquiescence may be looked at and considered were discussed in a most instructive manner by Verity C.J. (Nigeria) in his judgment in Suleman v. Johnson,42 in the course of which he explained as follows:

“The important distinction is … that when there has been a grant of occupational rights which disentitle the owners to possession until the termination of those rights, the fact that persons other than themselves are occupying the land does not necessarily put the owners on enquiry for they have granted rights of occupation and user and they will not, in the ordinary course, be constantly on the alert as to the precise manner or by whom such

[p.119] of [1963] 2 GLR 97 rights are being exercised. . . . The real infringement of the owner’s right would only arise by alienation, and of this they might have no immediate knowledge. It is far otherwise when land upon which no occupational rights have been granted, but into possession of which strangers enter and exercise acts inconsistent with the possession of the owners. Then at once the owner is put upon enquiry, and if for many years he takes no action to assert his rights, not to the reversion but to possession, the considerations which apply as to his acquiescence are far different, and I think the evidence required to establish such acquiescence as would serve to pass the original rights of the overlord to the occupier is far less than would be required in the case of land over which occupational rights had previously been granted and the reversionary rights only come in question.” Having thus reminded ourselves by means of the relevant cases to which reference has been made supra, as to the two different angles or aspects from which evidence of acquiescence has to be considered, i.e., according as the plea is directed towards resisting a claim for declaration of bare title or a claim for recovery of possession, and according also as the occupation originated in permission from the plaintiff or was adverse ab initio, the next question is whether examination of how the learned judge considered the question of acquiescence in the instant case, accords with the prescribed method. The answer, I think, is that it does not appear to be so. It seems difficult to say whether he had regard to the fact that this was a case where the occupation had originated in an adverse entry ab initio so that, in the words of Verity C.J.: “at once the owner is put upon enquiry,” and whether he took note of the fact that the plea was put forward to resist a claim to possession so that, again in the words of Verity C.J., “the evidence required to establish such acquiescence as would serve to pass the rights of the overlord to the occupier is far less than would be required in the case of land over which occupational rights had previously been granted.”43 If he had taken those two matters into consideration he would in all probability have found acquiescence sufficiently established, because there was evidence to establish the plea in the light of the decided cases, and, more important still, the trial magistrate accepted the evidence and found the allegations of the defendants indisputably proved. But the point in which, with respect, he appears to have erred most in his consideration of the plea of acquiescence, was in his expression of views about the material facts on which the defendants’ plea was based. He posted three conditions which must exist before acquiescence can be held established, and held that not a single one of those conditions existed. With regard to the first condition, namely, bona fide belief by the person setting up acquiescence that he had good title – he came to the conclusion that the fourth defendant Kwaku Asiedu could not have had such belief because he demarcated for the plaintiff and knew the extent of the plaintiff’s land; and as the second and the third defendants he held they did not give or tender any evidence to show that they had honest belief that they [p.120] of [1963] 2 GLR 97 had title. But with regard to Kwaku Asiedu, the other defendants adduced evidence by Kwaku Bamfo, the first defence witness, that “Asiedu had not cultivated any farm on the land in dispute” and that what he did was to carry out the co-defendant’s instructions to accompany other messengers to demarcate plots for the other defendants; in other words, his conduct was not put forward as forming part of the conduct of the other defendants relied on to establish acquiescence. As to the second and the third defendants, although they did not themselves give evidence they nevertheless adduced evidence by the first and second witnesses who testified for them as to how upon their application the co-defendant, the stool occupant, caused their respective plots to be demarcated for them; moreover, they were represented as to the placing of their case before the court, by the first defendant and in the latter’s evidence, he testified saying: “I and other defendants have cultivated farms and built villages in the land seven years ago.” Furthermore, the co-defendant gave evidence as to their bona fide occupation in the belief that they had lawful title as mere possessor or usufructuary owners on what they believed was stool land, when he testified thus: “I granted the land in dispute to the defendants herein for cultivation, as I did not know that it was within the plaintiff’s alleged purchased land . . . The farmers on the land have made farms which are bearing, and have also built villages and even double storey houses in their farms.” It is of great importance that the co-defendant’s evidence was accepted, for the magistrate stated as follows: “It appears the co-defendant really does not know the extent of the land in dispute because the negotiation between the stool and plaintiff dates as far back as 1928 when the co-defendant had not been enstooled – hence he offered the land to the defendants herein.”

With regard to the question of the plaintiff’s knowledge of the defendant’s entry and occupation, the learned judge held that,44 “The only evidence on record . . . [was] given by the plaintiff himself that it was only four years ago that he got to know that the defendants had entered the land and started to cultivate portions, and that thereupon he immediately went to the land and informed them of his ownership of the same and requested them to leave it . . . That evidence shows that the plaintiff acted promptly but the defendants were prepared to take risks.” As to these observations of the learned judge, the point is that if he was not staying on the spot, he had arranged and placed his son Baah Asare together with others of his people on the land, and therefore the excuse that he had no opportunity of knowing of the defendants’ entry and continued occupation does not seem to arise, if his representative on the spot Baah Asare could see the first defendant five years ago, as he testified, what is suggested as having prevented him from seeing the defendants earlier, for the evidence indisputably established that the defendants were on the land earlier than five years before the date of the dispute. But even assuming that it was five years prior to the date of the dispute when they were seen on the land [p. 121] of [1963] 2 GLR 97 surely prompt and timely action was imperative. Verity C.J. (Nigeria) pointed out in Nana Kwa Bom III v. Haizel45 that:

“Where there has been a limited grant it is not to be expected that the owner will be ever on the alert as to the occupation of the land with which for the time being he has parted . . . When however, there has been no such grant, the entry into possession by a stranger under a claim of right adverse to the original owner’s title, gives right to an immediate cause of action; and if the owner takes no such action but allows the stranger to remain in possession as though he were the owner for a considerable period, without disturbance it would be inequitable to allow the original owner at so late a stage to have recourse to the strict application of customary law to assert rights upon which he slept for so long.”

Instead of the plaintiff and his people taking immediate action however, they remained passive and inactive and did not take action until the land had been improved into the condition in which, as described by the trial magistrate, there were:

“100 cocoa farms of the defendants, 28 of which had reached bearing age and the owners have started enjoying the yield of some; fifteen cottages built pretty near five years ago, and a village of about 40 houses founded by the defendants nearly eight years ago. In one of the cottages is built a double-storey house.” If a landowner who is also a farmer and as such well aware of local farming conditions, including the position that cocoa when planted takes between four and five years to commence bearing, can allow his land to be occupied and developed in the manner described by the magistrate, how can he, in all fairness, be allowed to eject the farmers in occupation and take over their farms and villages and buildings? It is difficult to see how in the state of affairs indisputably established by the evidence available in the instant case, and having regard to the authorities to some of which reference has been made (supra) it can be seriously urged that the plaintiff has not been guilty of such acquiescence as at least should preclude him from dispossessing the defendants and taking over their cocoa farms, buildings, cottages and villages. The learned judge, however, appearing to ignore the trial magistrate’s description of the condition of the land expressed the view that: “there are no bases upon which it could be said that the plaintiff has been guilty of conduct amounting to fraud upon the defendants to make ill-gotten gain.”46 It is striking that the passage seems to admit and confess to a recognition of “ill-gotten gain” accruing or resulting to the plaintiff out of the whole situation. It seems difficult to subscribe to a decision which would have such questionable and inequitable results.

After the most anxious and careful consideration of the facts of the instant case as disclosed in the record of appeal and of the able and helpful arguments of counsel for both parties, I have formed the opinion that even if the plaintiff had established his title conclusively and indisputably, his [p.122] of [1963] 2 GLR 97 claim to recovery of possession and damages, at any rate, are liable to be, and are, in fact, defeated by the defendants’ unchallenged occupation resulting in the improvement of the land into the condition described by the trial magistrate. On the question of acquiescence therefore, it is my view that the facts and circumstances established by the evidence entitled the defendants to a decision in their favour on that issue also. In the result, I am of the opinion that the learned appellate judge had no justifiable grounds for setting aside the judgment of the trial magistrate, and I would accordingly allow the appeal, set aside the learned judge’s decision, including the orders declaring title to the disputed land in the plaintiff and awarding him costs of the appeal.

In place of it I would restore the judgment of the trial court in so far only as it dismisses the plaintiff’s claims and gives judgment simply to the defendants. I would add a consequential order that all payments made by the defendants to the plaintiff under the High Court judgment appealed from be refunded and award the defendants the costs of this appeal assessed at £G59 16s. 3d. and of the appeal to the High Court to be taxed.

JUDGMENT OF CRABBE J.S.C.

My brother Adumua-Bossman has dealt so fully with the matter that I do not think 1 can usefully add anything except to say that I agree with all that he has said.

JUDGMENT OF BLAY J.S.C.

I also am in entire agreement with the able and exhaustive judgment delivered by my brother Adumua-Bossman. There is nothing further I could add without the risk of repetition.

DECISION

Appeal allowed.

K.T.