SUPREME COURT, ACCRA
DATE: 12TH MARCH, 1962
BEFORE: KORSAH C.J., ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Sarkodee-Adoo J., in the Land Court, Accra, setting aside the judgment of the Akyem Abuakwa Native Appeal Court and restoring the judgment of the Akwatia Area Native Court “B” in which plaintiff successfully claimed declaration of title to and recovery of possession of land.
COUNSEL
B. J. da Rocha for the defendant-appellant.
A. W. Acquaah for the plaintiff-respondent.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
The action which has led to this appeal was commenced in March, 1958, in the then existing Native Court “B” of Akwatia Area (Akyem Abuakwa) by the plaintiff-respondent before this court (who will be referred to henceforth shortly as the plaintiff), and by his writ of summons he claimed (1) declaration of title to, and (2) recovery
[p.158] of [1962] 1 GLR 157
of possession of, a parcel of land with cocoa farm thereon, situate at Anyinabrem, near Osenase, the boundaries whereof were described in the writ. The trial court gave judgment for him, declaring that: “We are satisfied that plaintiff cultivated the farm in dispute and therefore give judgment in his favour declaring to him the right title and possession of the farm the boundaries of which are described in the writ of civil summons”.
The defendant-appellant before this court (who is henceforth referred to shortly as the defendant) appealed to the Akyem Abuakwa Native Appeal Court (also then existing) which allowed the appeal, set aside the judgment of the trial court and entered judgment for the said defendant. The plaintiff then lodged and prosecuted appeal against the native appeal court’s decision to the Land Court, Accra (Sarkodee-Adoo J., as he then was), which allowed the appeal, set aside the judgment of the native appeal court and restored the judgment of the trial court in favour of the plaintiff. It is against that judgment of the Land Court that the defendant now appeals to this court on a number of grounds of which the following are those which are of substance, to wit:
(a) The learned judge’s failure to consider counsel’s submission on the customary law of Atuogya which was material to the issue was wrong in law.
(b) The trial courts and the Land Court’s finding that the plaintiff cultivated the subject-matter [of the suit] was not sufficient in law to entitle him to declaration of title and recovery of possession.
(c) The plaintiff-respondent-appellant-respondent failed in his duty to establish that he was entitled to declaration of title and recovery of possession.”
In order to appreciate the relevancy and force of these grounds, it is necessary to consider firstly the respective cases of the parties.
The plaintiff’s case was that whilst he and his parents were settled in Osenase, about 40 years ago, when he was a young boy about fifteen or sixteen years old, he obtained the consent of the Osenase stool and cultivated the farm in dispute with the assistance of a sister called Ama Ohenewa now deceased; that sometime after he had made the farm, his parents and all the Juabeng settlers who were settled at Osenase had a dispute with the Osenasehene and his people which resulted in the Juabengs being obliged to go away from Osenase and abandon all their real properties, houses and farms, which with the permission of the Osenase stool, they, the Juabeng settlers had built and/or made on Osenase stool land.
The plaintiff in the course of his evidence on this point, stated as follows: “The Ohene of Osenase took possession of the farms of all the Juabeng people. My farm was also taken by the chief”. His further case, in his own words, was the following: “About three months ago I came from Juabeng-Asante to reside at Osenase again. I then approached the Chief of Osenase to release the farm in dispute to me. The Odikro of Osenase informed me that defendant had applied and the farms of Kwakome and Ama Ohenewa had been released to her. The farm of Ama Ohenewa is the farm in dispute. The defendant was invited by the Chief of Osenase and questioned. Defendant told me that the farm is her property. I then took this action against the defendant for recovery of possession of the said farm.”
The defendant’s case on the other band, in her own words, was the following: “My mother was the deceased Afua Nyantakyiwa. Afua Anto is the sister of Nyantakyiwa. In the year 1921 the people of Juabeng-Asante then residing
[p.159] of [1962] 1 GLR 157
at Osenase left to Juabeng and left these fanns and houses in hand of Odanhene [another official title of the Ohene of Oknasel as non-natives. Anto then went to Odanhene and begged that the farm in dispute should be released to her. Odanhene then released the farm to her. I was not at the time in the town of Osenase. The Odanhene then claimed the farm back from my mother Anto on grounds that she failed to erect a building at Osenase. Abena Seiwa is my daughter who has made a building there. My mother Anto then requested me to approach the Odanhene to release the farm in dispute to her as it was the property of my predecessors. I agreed and approached the Odanhene for the farm and it was then released to me. The Odanhene of Osenase collected £G12 as an aseda fee. I was at Kumasi when the Odikro of Osenase sent a message to me. The Odikro told me that plaintiff was laying claim to the land. I refused to give the farm to him, hence this action.”
It will be observed that the crucial fact, that whoever of the Juabeng-Asante settlers at Osenase might have made the farm in dispute, the farm became abandoned (atuogya), and in consequence became vested absolutely in the Osenase stool, was accepted or admitted by both parties. The obvious question which seems to arise from that admitted circumstance is—to whom did the stool make a valid transfer of its title.
The trial court somehow overlooked this obvious issue between the parties and purported to decide the case on the fact that the plaintiff cultivated the farm, when, even if that was the case, upon its abandonment by him for all this long period of 40 years, it quite clearly became stool property. The native appeal court pointed this out in their judgment when they said: “The plaintiff-respondent stated in the native court below that he cultivated the farm in dispute and left it behind; therefore the Osenase chief took possession of it as a stool property”. It is from that correct appreciation of the background of the case and the nature of that which was really in dispute between the parties that the native appeal court was able, justifiably and rightly in my opinion, to set aside the untenable decision of the trial court and enter judgment in favour of the defendant. It is obvious that the stool having become the owner of the farm upon its abandonment by whomsoever of the Juabeng-Asante settlers it might have originally been cultivated and made, it is the person to whom the stool shall have made a valid transfer who acquired and has valid title to the farm in dispute. The plaintiff on his own showing is not that person, but rather the defendant who gave aseda of £G12 upon the transfer to her by the stool’s representative, and it is clear the plaintiff’s claim for declaration of title and recovery of possession was misconceived and rightly rejected by the native appeal court. The learned judge of the Land Court therefore erred in setting aside the judgment of the native appeal court, and I would therefore allow the appeal, set aside the judgment of the learned judge of the Land Court and restore the judgment of the native appeal court with costs in this court assessed at £G42 1s. 6d. and costs in all the courts below.
JUDGMENT OF KORSAH C.J.
I agree.
JUDGMENT OF CRABBE J.S.C.
I also agree that this appeal be allowed.
DECISION
Appeal allowed.
