ODOI AND ANOTHER v. HAMMOND [1971] 1 GLR 375

DIVISION: IN THE COURT OF APPEAL

DATE: 21 DECEMBER 1970

BEFORE: SIRIBOE J.S.C., AZU CRABBE (Presiding) AND SOWAH

JJ.A.

CASES REFERRED TO

(1) Kuma v. Kuma (1934) 2 W.A.C.A. 178.

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

(3) Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347.

(4) Akwei v. Awuletey [1960] G.L.R. 231. S.C.

(5) Hall v. Eve (1876) 4 Ch.D. 341; 46 L.J.Ch.145; 35 L.T. 926;25 W.R. 177, C.A.

(6) Williamson v. London and North Western Ry. Co. (1879) 12 Ch.D. 787; 48 L.J.Ch. 559, 27 W.R. 724.

(7) Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218; [1956] 2 W.L.R. 81; [1955] 3 All E.R. 864, H.L.

(8) Oloto v. Williams (1944) 10 W.A.C.A 23.

(9) Biss v. Smallburg Rural District Council [1965] Ch. 335; [1964] 3 W.L.R. 88; [1964] 2 All E.R. 543, C.A.

(10) Dam v. Addo [1962] 2 G. L. R. 200, S. C.

(11) Fischer & Co. v. Thompson (1904) 1 Ren. 302.

(12) Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 103.

(13) Seraphim v. Amua-Sekyi [1962] 1 G. L. R. 328.

(14) Cooper v. Slade (1858) 6 H.L.Cas. 746; 27 L.J.Q.B. 449; 31 L.T. (o.s.) 334.

(15) Miller v. Ministry of Pensions [1947] W.N. 241; 177 L.T. 536; 63 T.L.R. 474; 91 S.J. 484; [1947] 2 All E.R. 372.

(16) Appiah v. Baabu, Court of Appeal, 15 May 1967, unreported.

(17) Moubarak v. Japour (1944) 10 W.A. C.A. 102.

(18) Breslauer v. Barwick (1876) 36 L .T. (n.s.) 52.

NATURE OF PROCEEDINGS

APPEAL from a decision of Apaloo J.A. (sitting as an additional judge of the High Court) wherein he gave judgment for the plaintiff in an action for a declaration of title to a parcel of land situate at Kotobabi. The facts are fully set out in the judgment of Azu Crabbe J.A.

COUNSEL

J. Arthur for the appellants.

Mensah for the respondent.

JUDGEMENT OF AZU CRABBE J.A.

This is an appeal by the defendants from the judgment of Apaloo J.A., sitting as an additional judge of the High Court, dated 23 October 1967, whereby he gave judgment for the plaintiff with costs and other consequential reliefs. The claim of the plaintiff-respondent (hereinafter called the plaintiff) against the defendants-appellants (hereinafter called the defendants), as stated in his writ of summons, was for: [p.379] of [1971] 1 GLR 375

“(1) A declaration of title to all that piece or parcel of land situate lying and being at Kotobabi Accra and bounded on the north by Osu stool land measuring 140 feet on the south by a proposed road measuring 140 feet on the east by plaintiff ‘s land measuring 100 feet and on the west by a proposed road measuring 100 feet.

(2) £G500 damages for trespass.

(3) Perpetual injunction against the defendants, their servants, workmen and agents from entering the said land.”

The statement of claim endorsed on the writ and of the statement of defence are both important and read as follows:

“STATEMENT OF CLAIM

(1) The plaintiff is the eldest of four Hammond brothers of Nii We family of Osu Ashanti Blohum quarter, Christiansborg, Accra, and he brings this action on behalf of himself and his brothers.

(2) The plaintiff and his brothers became owners of a piece or parcel of land situate lying and being at Kotobabi, Accra, by virtue of a customary gift on or about 10 November 1949 from their late uncle Nii Philip Tetteh Botchway The then head of Nii We family and Gyasetse of the Mankralo stool of Ashanti Blohum quarter in Christiansborg With the consent and concurrence of the elders and councillors of Nii We stool.

(3) The said piece of land is bounded on the north by Osu stool land measuring 418 feet on the south by a proposed road measuring 418 feet on the east by Osu stool land measuring 100 feet and on the west by a proposed road measuring 100 feet.

(4) That the land described in the writ forms part of the larger piece of land described in paragraph (3) above.

(5) On or about 6 February 1965 upon a report from the plaintiff ‘s caretakers of the said land it was found that the defendants had trespassed on a portion of the plaintiff’s land and started building operations thereon.

(6) The plaintiff and his brothers immediately protested by warning the defendants to remove from the land all building materials and tools deposited thereon by the defendants.

(7) The defendants continued the building operations and the plaintiff thereupon reported the matter to Osu Mantse, Nii Dowuona V, who sent his linguist to give a customary warning to the defendants in accordance with Osu customary law and usage.

(8) The defendants then approached the plaintiff and his brothers with a view to settling the matter but the plaintiff directed the defendants to the Osu Mantse by whom the customary warning was given on behalf of the plaintiff.

(9) The defendants have refused to remove their materials from the said land and have refused to heed the repeated warnings given by the plaintiff and Osu Mantse, and the defendants still continue in their acts of trespass on plaintiff’s land.

[p.380] of [1971] 1 GLR 375

(10) Wherefore the plaintiff’s claim is against the defendants jointly and severally for: A declaration of title to all that piece or parcel of land situate lying and being at Kotobabi, Accra, and bounded on the north by Osu stool land measuring 140 feet on the south by a proposed road measuring 140 feet on the east by the plaintiff’s land measuring 100 feet and on the west by a proposed road measuring 100 feet.

(b) £G500 damages for trespass on the plaintiff’s land.”

A perpetual injunction restraining the defendants, their servants, workmen or agents from entering on the said land.

“STATEMENT OF DEFENCE AND COUNTERCLAIM FILED ON BEHALF OF FIRST AND SECOND

DEFENDANTS

(1) The defendants are not in a position to deny or admit paragraph (1) of the statement of claim but say they will put the plaintiff to strict proof of his capacity to sue.

(2) The defendants deny paragraph (2) of the statement of claim and say in further answer thereto that the plaintiff’s said grantors are not the owners of the land the subject-matter of the suit herein and that the alleged customary grant which is denied confers no title in respect of the said land to the plaintiff or at all.

(3) In answer to paragraphs (3) and (4) the defendants say the said land is a portion of Osu stool lands known as Maamobi-Kotobabi-Dzorwulu and not the property of plaintiff’s alleged grantors.

(4) The defendants in answer to paragraph (5) deny that they have trespassed on the said land and say that they are in lawful possession thereof.

(5) In further answer to the aforesaid paragraphs (4) and (5) the defendants say on or about 22 November 1956 under the belief that the said land belonged to the said Nii We stool they obtained the said land under a deed of gift from the head of the said Nii We family. The said deed of gift is registered at the Accra Deeds Registry as No. 1488/1957.

(6) At the time of the said grant to the first defendant the said land was vacant and unoccupied. The first defendant then went into possession of the said land and made his corner pillars thereon and deposited sand on the land. Further the first defendant remained in undisturbed possession of the said land which he cleared from time to time without let or hinderance from the plaintiff or any other person.

(7) In further answer to the aforesaid paragraphs the defendants say that in civil suit No. 79/58 between the Osu stool acting by Nii Noi Dowuona IV then Osu Mantse as co-plaintiff and Nii Nortey Afriyie II Mankralo of Ashanti Blohum quarter acting as co-defendant, the Supreme Court adjudged the Osu stool as

[p.381] of [1971] 1 GLR 375 owners of all those lands known as Maamobi-Kotobabi-Dzorwulu of which the land the subject-matter of the suit herein forms part.

(8) After the said judgment the Osu Mantse published notices in the newspapers and beat gong-gong in accordance with Osu custom and usages inviting all persons in possession of portions of the said lands under grants from persons other than the Osu stool to obtain valid grants of the lands in their possession from the said stool.

(9) At the time of the said judgment and notice some of the quarter heads and other elders of the said stool had refused to co-operate with the then Osu Mantse who had to carry on the duties of his office with such elders of the stool as were then prepared to co-operate with him.

(10) In pursuance of the said notices aforesaid the first defendant who had then lost the original of the said deed of gift obtained a photostat copy thereof and took it to the said Nii Noi Dowuona IV and his elders who made an endorsement thereon and made a valid grant of the said land to the first defendant.

(11) In further answer to paragraph (5) first defendant says he has given the said land to second defendant his junior brother for building purposes and that as he is in lawful possession thereof he properly ignored the plaintiff’s alleged protests.

(12) The defendants admit paragraph (7) and say that by virtue of the grant made to first defendant by the predecessor of the said Nii Dowuona V the said Dowuona V is fixed with notice of the first defendant’s possession and occupation of the land and the alleged warning from him was therefore unlawful and otherwise ill-advised.

(13) The defendants in further answer to paragraph (7) and by way of answer to paragraphs (8) and (9) say by reason of the judgment aforesaid and the grant to him by the Osu stool aforesaid the present mantse as well as the plaintiff are estopped from denying the defendants’ title to the said land and that the alleged warnings constitute unlawful interference with the defendants’ right of possession and title to the said land.

(14) The second defendant further says that on 14 and 16 February 1965 respectively the plaintiff unlawfully entered the said land which was in his lawful possession and wrongfully and unlawfully destroyed the following:

(a) Well for building .. .. .. .. .. £G18 15s. 0d.

(b) Building profile on the land .. .. .. .. 12 10s. 0d.

(c) Shed on the land .. .. .. .. .. 70 0s. 0d.

___________

Total .. .. .. .. .. .. .. 101 5s. 0d

___________

(15) The defendants will further contend that if in fact there has been any customary grant to the plaintiff as alleged herein and denied by the defendants, the said, plaintiff who was at all materials [sic.] at Osu would have answered the ex-mantse’s notice to obtain a valid grant from the Osu stool and that the alleged customary grant is a bold invention by the plaintiff to deprive the defendants of the land of which the first defendant has remained in undisturbed possession for over nine years.

(16) Save as herein expressly admitted or denied, the defendants deny each and every allegation of fact in the statement of claim as if the same were herein set out and traversed seriatim.

(17) Wherefore the defendants say the plaintiff is not entitled to relief he seeks or to any other relief.

COUNTERCLAIM

The first defendant repeats paragraphs (11), (12) and (13) of the statement of defence and by way of counterclaim claims from the plaintiff the sum of £G101 5s. being the value of his materials destroyed by plaintiff and set out in paragraph (13) (supra).”

Reading the writ of summons and the statement of claim together it becomes clear that the case put forward by the plaintiff was: that the land in dispute was a portion of land of the Nii We family of Osu; that he entered into possession of an area, including the piece in dispute, in 1949, by virtue of a customary grant made to him by the Nii We family; and that he had ever since remained in occupation of the area in dispute, exercising open acts of ownership thereon. In paragraphs (2) and (3) of the statement of defence the defendants specifically denied that the Nii We family were the owners of the disputed land, and alleged that the alleged customary grant conferred no title in the land to the plaintiff. It is now common learning in this country that in an action for a declaration of title to land the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of the defendant’s case. He must indeed “show clear title”: per Yates Ag.C.J. in Kuma v. Kuma (1934) 2 W.A.C.A. 178 at p. 179. In Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24 at p. 25, the Judicial Committee of the Privy Council observed that in an action for a declaration of title “the first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory.” For a stool or family to succeed in an action for a declaration of title it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute.

In support of his case, stated in both the writ of summons and the statement of claim, the plaintiff testified as follows:

“I am a tailor. I live at Osu, Ashanti quarter. I know both defendants. I am a subject of the Mankralo stool, but we are the Dzases from Nii We family.

[p.383] of [1971] 1 GLR 375

The land in dispute is situated at Kotobabi. Kotobabi land belong to Nii We family stool. Our ancestors migrated from Amanfrom and settled at Kotobabi. So for many generations it became our property. Nii We has a family stool which is under the Mankralo who in turn is under the paramount stool. Formerly our family controlled the land exclusively, but since 1960 it had been adjudged to belong to the Osu stool … On 10 November 1949, Nii Tetteh Botchway and the elders of Nii We family granted the land to us. It was a customary grant and we gave drink of twelve guineas. The custom was performed in the Nii We family house at Osu”.

The younger brother of the plaintiff, one Alfred Botchway Hammond also testified on behalf of the plaintiff and said, “As the land granted to us was part of land belonging to our family stool, we asked for no document on the land.” The third witness for the plaintiff, called Ayi Faafo, also said as follows: “I know the plaintiff, I know the land in dispute. I was born on the land belonging to the Nii We family. As the town grew people came and asked for land and we made grants to them.”

All the evidence by the plaintiff and his witness tends to show that the Nii We family were the original absolute owners of Kotobabi land, and that a customary grant of a piece of the land, including the land in dispute, was made to the plaintiff in 1949. I think there is ample evidence that the Nii We family purported to make a customary grant of a portion of the Kotobabi land to the plaintiff. But as Sir John Verity C.J. said in Emegwara v. Nwaimo (1953) 14 W.A.C.A. 347 at pp. 348-49 (the emphasis is mine): “It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right. Unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration.

Nowhere in the present case have I been able to find that the nature of the right is specified, nor have I been able to find evidence as to the precise terms of the grant upon which any such specific claim could be based.

I cannot conceive that it is the duty of the Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of the claim and then proceed to make a declaration which the plaintiff has not specifically sought and may not in fact desire. It would indeed be improper for the Court so to do unless it were prepared to order an amendment of the pleadings, in which case it would be necessary to give the defendant an opportunity of meeting what would be an entirely different case. Such a course if followed at all would only be followed with great reluctance and upon the clearest possible evidence.” [p.384] of [1971] 1 GLR 375

In this case I have been unable to discover any evidence as to how the Nii We family became the owners of Kotobabi land, and the learned trial judge himself made no finding that the land in dispute originally belonged to the Nii We family. Indeed, there was absolutely no evidence from which such an inference could be made. Neither was there evidence of the precise terms of the customary grant upon which the plaintiff based his claim. But the learned trial judge did, however, find that the allodial title to the whole of Kotobabi land vested in the Osu stool, and this finding is in accord with the decision of the former Supreme Court in Akwei v. Awuletey [1960] G.L.R. 231, S.C. Despite this finding, and also the failure of the plaintiff to prove the precise terms of the alleged customary grant made to him by the Nii We family, the learned trial judge was able to say, “that on the crucial issue of title joined between the plaintiff and the defendants, I decide that the plaintiff has shown a good title to the land and the defen dants have shown none.” And he finally concluded his judgment with this sentence: “Accordingly, I make in favour of the plaintiff, a declaration of title in terms sought in paragraph (1) of the writ.” It seems to me that the plaintiff’s case, as stated in his writ and statement of claim, was, simply that he obtained his title under a customary grant from the Nii We family who were the owners of the Kotobabi land; the defendants challenged the right of ownership of the land by the Nii We family. Therefore the crucial issue in this litigation was whether the ownership of the land in dispute vested in the Nii We family. The title of the Nii We family would naturally help to determine the right which the plaintiff claimed under the alleged grant.

In his reply to the defendants’ statement of defence, the plaintiff, however, alleged the following facts (only the relevant paragraphs are set out):

“(1) The plaintiff joins issue with the defendants on their defence.

(2) In answer to paragraphs (2) and (3) of the statement of defence the plaintiff says that the land in dispute forms part of Osu stool rural land which the Nii We family by virtue of being subjects of the Osu stool originally occupied at all material times.

(3) The plaintiff and his brothers being descendants of the original occupiers of the land were granted a portion of the rural land. In November 1949 they were allocated the portion described in paragraph

(3) of the statement of claim by the then head of Nii We family.

(4) The plaintiff therefore says that as subjects of the Osu stool their title to the said land which was originally occupied by their ancestors and which has been in their possession since 1949 is a good one …

(7) In answer to paragraphs (7) to (10) the plaintiff says that the judgment in civil suit No. 79/58 did not divest him and his brothers of their title to the said land which they acquired through original occupation by their ancestors as subjects of the Osu stool in accordance with Osu customary land tenure …

[p.385] of [1971] 1 GLR 375

(11) In answer to paragraph (15) of the statement of defence plaintiff says that pursuant to the legal notice dated 26 October 1964 and published by the solicitor of Osu stool the plaintiff obtained confirmation of their customary title by a deed of gift executed by Osu Mantse on 22 November 1964.

(12) By the said deed of gift the Osu Mantse and the accredited representatives of all the four quarters of Osu confirmed the customary grant of the land of the plaintiff and his brothers in their capacity as subjects of Osu stool and direct descendants of the original occupiers of the Kotobabi rural lands.” In my view the plaintiff was by his reply setting up a case completely inconsistent with his former pleadings. His case no longer was, as disclosed in the reply, that the Nii We family were the owners of the land in dispute, but that the Osu stool were the real owners of the disputed land, and that the Nii We family, as subjects of the Osu stool, occupied that land, and that the plaintiff and his brothers, being also the subjects of the Osu stool, were entitled to occupy Osu stool lands which were formerly in the possession of their ancestors. After obtaining a grant from Nii We family in 1949, they remained in possession until 1964 when their customary title was confirmed by a deed executed by the Osu Mantse on 22 November 1964.

The main purpose of a reply in pleadings is to raise in answer to the defence any matters which must be pleaded by way of confession and avoidance, or to make any admissions which the plaintiff may consider it proper to make. “[T]he reply is the proper place for meeting the defence by confession and avoidance”: per James L.J. in Hall v. Eve (1876) 4 Ch.D.341 at pp. 345-46, C.A. The plaintiff may allege new facts in his reply in support of the case pleaded in his statement of claim, but he is not permitted to set up in his reply a new claim or cause of action which was not raised either in the writ or in the statement of claim. In his reply, he can explain and define his original claim.

The plaintiff in this case did not ask leave to amend his writ of summons and the statement of claim, and in my opinion counsel for the defendant should have applied to have paragraphs (2), (3), (4), (5), (7), (11) and (12) of the reply struck out as being grossly defective. Thus in Williamson v. London and North Western Ry. Co. (1879) 12 Ch.D. 787, upon notice by the defendant, Hall V.C. ordered the whole of the plaintiffs’ reply to be struck out as embarrassing, although the notice of motion only asked to have particular passages struck out, but he gave the plaintiff leave to put in a fresh reply. Hall V.C. said in his judgment at p. 793:

“There are other features in this case which seem to point to this pleading not being such as the Court would be disposed to sanction. It is not necessary to say whether they of themselves, and without what I would have already adverted to, would have sufficed to justify the course I take, but I am very much disposed to think that the objection that the reply sets up new claims is a good objection; for, although it has been said that penalties claimed by the reply

[p.386] of [1971] 1 GLR 375 which are not claimed in the statement of claim or the writ must be disregarded, still there are the claims put forward, and the pleader for the Defendants is embarrassed by them. It is not for him to take upon himself to disregard them altogether and to refrain from going into any rejoinder because, if the claims for penalties had been brought forward properly, he would have been able to show that either by conduct or in fact the penalties had been released and given up, and therefore they could not be claimed. He is not to be embarrassed by considering whether the Court, when the matter comes to a hearing, will let the Plaintiff, supposing he fail in everything else, fall back upon or claim some of those penalties in the nature of damages or otherwise, instead of having the specific relief which he claims in respect of this particular right of access in the one way or the other, either under the bridge or upon a level crossing. It seems to me that is another substantial and important objection to this pleading.”

The Vice-Chancellor further made these general observations at p. 794:

“Then, upon the general arguments before me, I desire to make an observation which may have some bearing if the Plaintiff should amend his reply. With reference to the form of the reply, I hold, upon the construction of the several rules, that where a Plaintiff is putting in a reply to a defence in which the Defendants have set forth facts, it is sufficient, for the purpose of putting in issue by way of denial those facts stated in the defence, to reply generally.”

In practice inconsistent claims should be pleaded, if at all, alternatively in the statement of claim. That was not the case here. Neither was the statement of claim amended. The learned trial judge, with all due respect, should, therefore, have disregarded that part of the reply and the evidence in support thereof which was at variance with the case put forward in the statement of claim. The position, therefore, was that there was no proper reply, because it was a departure from the pleadings, and the statement of claim was at no stage amended. The only pleadings which the learned trial judge was therefore entitled to look at were the statement of claim in its present form, and the statement of defence. In Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218, H.L., an oil tanker was stranded in a river estuary and, to prevent her breaking her back, the master jettisoned 400 tons of her oil cargo which the tide carried to a foreshore where it caused damage. The foreshore owners, the Southport Corporation, brought against the shipowners an action based on trespass, nuisance and negligence, alleging that the stranding was caused by faulty navigation; the defence denied negligence. The trial judge, Devlin J. (as he then was), held that the shipowners were not liable in negligence as alleged in the statement of claim, and that the Southport Corporation was not entitled to succeed either in nuisance, trespass or negligence. On appeal, however, the majority of the Court of Appeal dismissed the appeal against the master, but allowed the appeal against the decision in favour

[p.387] of [1971] 1 GLR 375 of the shipowners, not on the issue of negligence raised in the pleadings, but on an allegation of unseaworthiness of the vessel, which was not pleaded. On a further appeal to the House of Lords, it was argued on behalf of the Southport Corporation that if the learned trial judge had not acquiesced in the respondents’ case being put as it was they would have had to apply for leave to amend and, if necessary, for an adjournment, but he went on with the case and every point was argued and he gave judgment. In effect, the argument continued, it was as if the trial judge had given leave to amend to bring the case within the terms of the writ, and it was wrong for him to say in his judgment that the case put forward by the respondents was not pleaded. This argument was rejected by the House and the appeal was allowed, and in the course of his speech Lord Radcliffe said at p. 244:

“In my view, where the question is, as here, as to sufficiency of evidence, the state of the pleadings is of more importance than the way in which the case is shaped in argument. It is clear that no application was made to the trial judge to amend the pleadings by alerting or extending the particulars, and it is equally clear from what he says at the close of his judgment that he did not regard himself as having expressly or impliedly authorized any such amendment. That being so, I am of opinion that the appellants called as much evidence as was required of them to defend themselves from the charges of negligence that were made in this case.”

It is not right for the learned trial judge to allow a new case to be raised, after the case framed by the plaintiff had failed. In Oloto v. Williams (1944) 10 W.A.C.A. 23 at pp. 24-25, it was stated by the court as follows:

“At the trial the defendants satisfied the learned Judge that their statement of the facts was correct and that the plaintiff’s statement of the facts in his Statement of Claim was incorrect.

Having come to that definite conclusion of fact the learned Judge then proceeded to give ‘judgment for the plaintiff’. That means judgment for the plaintiff for what he claimed, and to discover what the plaintiff claimed one must, of course, look at the claim as stated in the writ and Statement of Claim. Looking at the writ one finds that ‘judgment for the plaintiff’ involves a finding that the land in question had ‘not been alienated to any other party’. Looking at the Statement of Claim, and particularly at the last sentence of paragraph 2 of the Statement of Claim it is clear that ‘judgment for the plaintiff’ meant that the ‘ownership by native law and custom’ of the plaintiff ‘was free of any tenancy under native law and custom’. But it is clear from the findings of the learned Judge in his judgment that he found as a fact that there had been alienation to another party, namely to Governor Glover for the Egba refugees. It is also clear that the learned Judge in his judgment found as a fact that the defendants’ ancestors and the defendants had respectively acquired and inherited ‘a right of occupation under native law and [p.388] of [1971] 1 GLR 375 custom’, which is a ‘tenancy under native law and custom’ ‘It follows therefore that in giving ‘judgment for the plaintiff’ the learned judge was in terms deciding the case before him in a way which was quite inconsistent with this express findings of fact.”

In this case the learned trial judge having found, as in Oloto v. Williams (supra), that the averments in the plaintiff’s statement of claim were not correct, that is to say, that the Nii We family had not got title of ownership to the Kotobabi land and that the right acquired by the plaintiff under the alleged grant was a mere sham, he (the learned trial judge) should have given judgment for the defendants. As Harman L.J. said in Biss v. Smallburgh Rural District Council [1964] 3 W.L.R. 88 at p. 101, C.A. “he who seeks a declaration must make up his mind and set out in his pleading what that declaration is.” In Dam v. Addo [1962] 2 G.L.R. 200, S.C. where the trial court accepted a defence contrary to, and inconsistent with, that which the defendant himself had put forward, Adumua-Bossman J.S.C. said at pp. 203-4 that:

“The process of consideration and weighing up of the respective cases of the parties by which the learned judge arrived at the conclusion at which he did arrive, would appear to have involved the substitution by him proprio motu of a case substantially different from, and inconsistent with, the case put forward by the respondents and the ultimate acceptance by him of that substituted case which was not the respondents’ case at all. This acceptance in favour of a party of a case different from and inconsistent with that which he himself has put forward in and by his pleadings, has been consistently held to be unjustifiable and fundamentally wrong both by the English superior courts and our local superior courts.” It seems clear from the cases of Fisher & Co. v. Thompson (1904) 1 Ren. 302; Esso Petroleum Co. v. Southport Corporation (supra), and Dam v. Addo (supra) that where during a trial the evidence appears to have disclosed a claim inconsistent with the case put forward by one of the parties, then unless the statement of claim or the statement of defence, as the case may be, is amended, that party must lose. The learned trial judge in this case was able to find for the plaintiff because, as he reasoned, the oral customary grant was confirmed by the deed of confirmation (exhibit E). His process of reasoning is this: “After the Akwei judgment in 1960, both obtained the confirmation of the Osu stool. The effect of these, was, that the stool set the seal of its approval on the grants made to both parties and ratified the grants retroactively. The result was that the Osu stool ratified the grant to the plaintiff with effect from November 1949 and that of the defendants with effect from November 1956. Documents were in fact executed in favour of both sides by the Osu stool in which their earlier grants from Nii We were recited and confirmed. That leaves the parties where they began.”

[p.389] of [1971] 1 GLR 375

Then he said :

“In my opinion, title to the land became vested in the plaintiff by the customary oral grant of 1949 and it was by reason of this that the plaintiff since that date entered into possession of that land. It seems to me that if title to the land can be validly transferred to the plaintiff by oral grant, then confirmation of that grant, can equally validly be made by parol. I think the deed of confirmation (exhibit E) merely evidenced a parol confirmation of a prior oral grant. It is not an instrument which transferred the title to the plaintiff and its non-registration does not affect its validity.”

The truth of the matter is that when the parties were left where they began the position was that the plaintiff could only pretend to have acquired an absolute title, which the Nii We family had no power to transmit to him. The Nii We family could not convey a title to the plaintiff which they themselves had not got. It is in this respect that I think the case of Akwei v. Awuletey [1960] 2 G.L.R. 231, S.C. becomes very pertinent. The headnote in the report reads:

“The plaintiff, a subject of Osu brought this action for declaration of title to a piece of land forming part of a larger area known as the ‘Maamobi-Kotobabi-Dzorwulu’ lands which again were part of Osu stool rural lands. The plaintiff relied on a deed of gift dated 16th August, 1952, executed by the acting Osu Mantse, one Nii Okwei Omaboe. In his evidence, although he had not pleaded it, he claimed that this document was confirmatory of a customary grant made to him in 1948 by the then Osu Mantse. The defendant also claimed ownership of the land by virtue of a customary grant made in 1954 by the Osu Mankralo, to whose stool, he said, the land belonged. The Osu Mantse and the Osu Mankralo were joined as co-plaintiff and co-defendant respectively. The Osu Mantse claimed a declaration that the land in dispute was part of the Osu stool lands and that the plaintiff by virtue of the deed of gift had acquired a good title. The Osu Mankralo in his application for rejoinder, claimed that the land in dispute belonged to the Osu Mankralo stool and in his statement of defence averred that the “Maamobi-Kotobabi-Dzorwulu” lands had been settled upon exclusively by the people of the Ashanti Blohum quarter of Osu (the quarter under the Osu Mankralo Stool) and that any grant of a piece of those lands required his consent and that of his elders. The Osu Mantse, in reply, pleaded that the fact of such settlement did not give to the people of the Ashanti Blohum quarter either title to the land or the right of alienation. During the course of the trial in the Land Court, Accra, the plaintiff withdrew his claim. The co-plaintiff continued the action and judgment was at the close of the case given in favour of the defendant and co- defendant. The co-plaintiff appealed to the Supreme Court.

Held. . . . (3) the Osu Mantse is the proper authority to grant Osu stool lands, subject to the qualification that he cannot make a valid grant of quarter lands and outskirt [p.390] of [1971] 1 GLR 375 lands attached to a quarter without prior consultation with the head and elders of the quarter concerned.

(4) the land in dispute was neither quarter land nor outskirt land adjacent or contiguous to the Ashanti Blohum quarter but Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant.”

The Supreme Court concluded its judgment in these words at p. 241: “The land in dispute is neither quarter land nor outskirts land adjacent or contiguous to the Ashanti Blohum quarter but Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant.” The method by which the plaintiff in the instant case acquired his alleged title is practically the same as that of the defendant in Akwei v. Awuletey (supra). The land in dispute in this case is a piece of the land which was the subject-matter in that case. Akwei v. Awuletey has established that the Osu Mantse and his elders are the only proper authority to make a grant of the Kotobabi land. The purported customary grant of a portion of the land by the Nii We family of Ashanti Blohum quarter to the plaintiff in this case was therefore null and void and of no effect, and in my view the Osu stool cannot subsequently confirm, orally or by deed, a void grant: Ex nihilo nihil fit.

I do not, with all due respect, share the view of the learned trial judge that because exhibit E is not an instrument which transferred the title to the plaintiff therefore its non-registration did not affect its validity. One of the grounds of appeal argued before us alleges as follows: “(4) The learned trial judge failed to appreciate the significance, force and effect of E.I. 108 of 1964 to the extent to which the said instrument affected the land in dispute.”

Section 7 (1) of the Administration of Lands Act, 1962 (Act 123), provides that:

“7. (1) Where it appears to the President that it is in the public interest so to do he may, by executive instrument, declare any Stool land to be vested in him in trust and accordingly it shall be lawful for the President, on the publication of the instrument, to execute any deed or do any act as a trustee in respect of the land specified in the instrument.”

By the Accra-Tema City Stool Lands (Vesting) Instrument, 1964 (E.I. 108), dated 18 September 1964, the land, the subject-matter of the dispute, became vested in the President in trust for the Osu stool. Exhibit E was executed by the paramount chief of Osu, Nii Dowuona V, on 22 November 1964. Exhibit E is a deed in respect of part of the land specified in E.I.108, and under section 7 (1) of Act 123 only the President as trustee of the disputed land, could execute it. The section must be given its natural meaning, and when this is done it will be found that “deed” in the section refers to any instrument whatsoever. And “any act” means

[p.391] of [1971] 1 GLR 375 any act whatsoever in respect of the land specified. In my view, a confirmatory deed is a deed within the meaning of section 7 (1), for if that were not so the section could be circumvented by the execution of confirmatory deeds which would in fact be deeds of conveyance.

Again, I dissent, with the greatest respect, from the view expressed by the learned trial judge that the plaintiff’s case was not affected by the non-registration of exhibit E. It was not disputed that exhibit E was not registered in accordance with the provisions of the Land Registry Act, 1962 (Act 122). Section 24 of the Act makes registration a sine qua non for the validity of an instrument other than a will or a judge’s certificate. The section reads:

“24. (1) Subject to subsection (2), of this section, an instrument other than,

(a) a will, or

(b) a judge’s certificate, first executed after the commencement of this Act shall be of no effect until it is registered.

(2) Nothing in this Act shall operate to prevent any instrument which, by virtue of any enactment, takes effect from a particular date from so taking effect.”

In section 36 it is provided that, unless the context otherwise requires “‘instrument’ means any writing affecting land situate in Ghana, including a judge’s certificate and a memorandum of deposit of title deeds.” Surely, exhibit E is a “writing affecting land situate in Ghana,” for it purports to confirm or revive an interest in land, and, therefore, it is caught squarely by section 24. For this reason also, I think that exhibit E is void and of no effect.

On the merit of the substantive claim, I would say that the learned trial judge erred in making a declaration in favour of the plaintiff for the following main reasons:

(1) that the alleged customary grant of 1949 upon which the plaintiff relied to establish his claim was, by his own showing, null and void;

(2) that the confirmatory deed (exhibit E) offended against the provisions of section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and also the provisions of section 24 (1) of the Land Registry Act, 1962 (Act 122). Consequently, exhibit E was also void, and the learned trial judge should have disregarded it;

(3) that even if exhibit E did not sin against the provisions of section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and section 24 (1) of the Land Registry Act, 1962 (Act 122), it could not validate a customary grant that was void;

(4) that the plaintiff failed to amend his statement of claim so as to plead the new case which he substituted, and for which he got judgment.

[p.392] of [1971] 1 GLR 375

I think the reasons which I have given are sufficient to dispose of this appeal on the substantive claim, but in order to do justice to both parties it is necessary to consider the learned judge’s conclusions on the subsidiary issue arising under the Land Development (Protection of Purchasers) Act, 1960 (Act 2). I can only do this on the assumption that the plaintiff acquired a good title to the land in dispute. It is alleged in one of the grounds of appeal, and argued, that the invocation by the learned trial judge of Act 2 was palpably wrong. I am unable to accept this argument. I think that the Act vests a discretion in the trial judge in any particular case to determine whether the provisions of the Act should be applied, and that he can exercise this discretion ex proprio motu.

The Preamble to the Act shows that the object of the Act is to protect purchasers of land and their successors, whose title are found to be defective after a building has been erected on the land. Section 1 of the Act reads as follows:

“1. (1) Where —

(a) Person (in this section referred to as ‘the purchaser’) has taken a conveyance of land in a prescribed area at any time after 31st December, 1944 (whether before or after the date on which the area became a prescribed area), and

(b) the purchaser or a person claiming through him has in good faith erected a building on the land, and

(c) proceedings are brought to obtain a possession order in relation to the land on the ground that a person other than the purchaser or a person claiming through him is entitled to the land, the court, where it considers that if this Act had not been passed the possession order would fall to be made by reason that the conveyance taken by the purchaser did not operate to confer on him the title to the land, but that to make the order would cause hardship and injustice to the person against whom it would fall to be made, may, instead of making the possession order, make an order providing that the conveyance taken by the purchaser shall be deemed for all purposes to have operated to confer on him the title to the land.

(2) Where an order is made under the preceding subsection and the court considers that the order would by itself cause hardship and injustice to any person, the court may make a further order requiring the person in whose favour the order under the preceding subsection is made to pay to that person a sum of money by way of compensation:

Provided that the aggregate of any sums ordered to be paid under this subsection shall not exceed an amount equal to twice the value of the land at the date of the purported conveyance to the purchaser.

[p.393] of [1971] 1 GLR 375

(3) The court may exercise the powers conferred by this section in any proceedings notwithstanding that the proceedings were instituted before the commencement of this Act, and, in proceedings on appeal, notwithstanding that the decision appealed against was given before the commencement thereof.”

The provisions of section 2 are not relevant to this case, but the marginal note on the side of the section reads: “Reopening of past cases.” This seems to show that section 1 relates to current proceedings. The object of section 2 is to give the court power to cure defects in titles conveyed to purchasers or grantees of land.

For “the purchaser” to claim the protection afforded by section 1 he must show:

(1) that the land conveyed to him is in a prescribed area;

(2) that he or the person claiming through him has in good faith erected a building on the land;

(3) that proceedings have been brought for an order of possession by someone who claims that he is entitled to the land.

If the court trying the case comes to the conclusion that the purchaser did not acquire a valid title to the land in dispute then, provided the purchaser had led satisfactory evidence on the first and second matters, the court will have a discretion to make one of two orders. Depending on the balance of hardship and injustice to the parties, the court may make an order either (a) for possession in favour of the person entitled to the land, or (b) that the conveyance taken by the purchaser shall be deemed for all purposes to have operated to confer on him the title to the land. Where the court makes an order as in (b) it will then consider, again depending upon the balance of hardship and injustice, the desirability of awarding monetary compensation to the party who was the original owner of the land. The total amount of the compensation ordered to be paid should not be more than double the value of the land at the date on which it was conveyed to the purchaser. Where the court makes an order as in (a) above, it means that it is not satisfied that the purchaser is entitled to the protection provided by the Act ‘and the purchaser loses the land and building.

In section 4 (1) of the Act, “possession order” is defined as “an order requiring the delivery up of possession of land or setting aside a conveyance or making a declaration of title or otherwise in defeasance of title to land.” And in section 4 (2) it is provided that “a person shall be deemed to have erected a building if he has carried out the greater part of the work required for the erection thereof.” In this case it is established that at the time when proceedings began in this action, the defendants had no building on the disputed land, but by the time when the court came to make its order on 27 October 1967, the defendants had erected on the land a building worth £G4,000. It seems to me that the most crucial factor which the court will have to take into consideration when determining the question of the purchaser’s protection under the Act is the “good faith” of the purchaser.

[p.394] of [1971] 1 GLR 375

The learned trial judge deprived the defendants of the protection under the Act, because relying on the Supreme Court decision in Wuta Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 103, he thought the second defendant who erected the building was reckless. The basis of the trial judge’s decision on this aspect of the case is stated in the following passage of his judgment: “He knows that the origin of his title was the Nii We family. He also knows that the plaintiff was a member of that family and was claiming an earlier grant from his own family. Yet the second defendant said he could not suspend building operations and await the decision of the court because, as he put it, ‘I am confident that the person who is claiming the land is not the owner.’ If that is not recklessness, I do not know what else is. I think the second defendant did not erect the building in good faith and is disentitled to the remedy provided by Act 2 of 1960.”

It seems clear that the main ground upon which the learned trial judge found the second defendant guilty of recklessness was his awareness of the earlier grant to the plaintiff by the Nii We family, from whom he got his own grant. If therefore, as I have endeavoured to show, the plaintiff’s grant of 1949 was null and void, then the charge of recklessness against the second defendant cannot be sustained. The plaintiff claimed that he went into possession of the land immediately after the abortive grant to him by the Nii We family. The first defendant also went into possession under an abortive deed of gift (exhibit 1) dated 22 November 1956, and erected pillars on the land. In 1960 both parties realised that their common grantor had no title to the land and therefore their grants were valueless. The parties are all subjects of the Osu stool, and it is not denied that the plaintiff was the first to take possession. As I said a little while ago, I am examining this aspect of the case only on the assumption that the plaintiff was lawfully on the disputed land, and that the case he put forward was a claim for possessory or usufructuary title. In this connection I would like to quote a passage from the judgment of Ollennu J. (as he then was) in Seraphim v. Amua-Sekyi [1962] 1 G.L.R. 328 at p. 331, which I think accurately states the true legal position of the parties:

“A person in possession can successfully maintain an action for trespass against the whole world except the person proved to be the true owner. But possession means effective possession; a person who enters upon land which is apparently already in the possession of another person, cannot in law be said to have that possession which will entitle him to the benefit of the proposition of law. Therefore where the possession relied upon has not been effective or where it is one which has been disputed, a plaintiff to succeed in an action for trespass against another person who also claims to be in possession cannot succeed unless he proves that as between him and that other person, the right to immediate possession of the land is vested in him.

[p.395] of [1971] 1 GLR 375

Next where a plaintiff proves effective possession of land the onus shifts upon the trespasser to prove that title to the land is vested in him; that is, to prove that he, the trespasser, is the true owner.” Then as regards alienation of stool lands to subjects of the stool Ollennu J. stated the law as follows at pp. 334-335:

“A stool has no right to alienate stool land in the possession of a subject or grantee of the stool or anyone who derives title from a subject or grantee. Any such grant made by a stool without the consent and concurrence of the subject in such possession is a nullity: see Ayim v. Mensah (Div.Ct. October 30,1911 unreported); Quarm v. Yankah II and Anor. ((1930) 1 W.A.C.A. 80); Oblee v. Armah and Anor. ((1958) 3 W.A.L.R. 484); Norquaye-Tetteh v. Halm and Anor. [1959], G.L.R. 368), and Total Oil Products Ltd. v. Obeng and Anor. ([1962] 1 G.L.R. 228). Therefore although the stool is the owner of the absolute estate in the land, yet if it is shown that subjects of the stool were in occupation of the land at the date when the stool made the conveyance to the plaintiff, those conveyances would be null and void ab initio. The possession by the subject may be by implied grant, i.e. by his entry upon the land as agricultural or rural land and farming it, or it may be by actual grant; it does not matter which.”

I have no doubt that these passages from the judgment of Ollennu J. (as he then was) express the correct principles of the customary law. But the onus is on the person in possession to prove that it is the identical land which has again been granted by the stool to the other subject. The parties in this case gave evidence to show the identity of the land which each obtained originally from the Nii We family, and this is what the learned trial judge said about their evidence:

“One other aspect of this case common to both parties, is that each said he entered into possession of the land after the grant and erected corner pillars to mark its confines. While the first defendant said he thereafter deposited sand on part of the land and paid periodic visits to it, the plaintiff said he not only put caretakers on the land but that he from time to time made food farms on the land.”

Then he said, “I see nothing to discredit about either story.”

The general rule in the law of evidence is that in a civil case the onus probandi lies on the party who asserts the affirmative of the issue, and the preponderance of probability in favour of a party may be sufficient ground for a judgment in favour of that party; per Willes J. in Cooper v. Slade (1858) 6 H.L.Cas. 746 at p. 772. When therefore the evidence is evenly balanced, or if there is not much to choose between the plaintiff’s case and that of the defendant, the plaintiff must fail: See Miller v. Ministry of Pensions [1947] 2 All E.R. 372 at pp. 373-374. This is how the learned trial judge found the evidence, and he should have held that the plaintiff had failed to establish that the land occupied by the defendants formed part of the land in his possession. The evidence of the first defendant as to his occupation appears so cogent that I reproduce it as follows:

[p.396] of [1971] 1 GLR 375

“Before the execution of the document I visited the land. The land was demarcated to me by one Coleman who is a surveyor. When we went on the land, there was nothing to suggest that anyone else was on the land. It was not a built up area although there were some swish buildings around. At the time I was shown the land, it was bushy with creeping thorns. I did not see any corner pillars with ‘Hammond Brothers’ on it. I saw no cassava or groundnut on the land. There was a foot path going uphill on its west. After demarcation and execution of exhibit D, I returned the next day with four corner pillars which I fixed on the four corners of the land. The pillars bore my initials ‘G.Y.O.’ Somebody helped me to fix them there. He was living in a nearby swish house. After this, I visited the land periodically. After the demarcation, I cleared the whole area 100 feet by 140 feet and put sand on it.”

In spite of the view expressed by the learned trial judge that there was nothing to discredit the evidence by the first defendant, he then went on to say: “The area granted to the first defendant is a quarter of the plaintiff’s land, and the former might well have placed the sand on a portion of it which had then not been reached by farming and was therefore unnoticed by the plaintiff or his caretaker.” With very great respect to the learned trial judge, there is no evidence to support the view he has expressed in this passage; it is mere speculation. It is impossible for a court to accept the evidence for both plaintiff and defendant on the same issue and then decide that issue in favour of the Plaintiff. In such a situation the plaintiff would have failed to discharge the onus on him to prove that issue.

But assuming the learned trial judge was right in his finding that the plaintiff had shown “a good title to the land and the defendants have shown none,” the crucial question is: Did the defendants act in “good faith” in erecting the building on the land in dispute? The learned trial judge was a party to the decision in the Wuta-Ofei v. Dove case (supra) which he cited in his judgment, and there he said:

“I share that view of the matter myself because I cannot see how a man can be said to have erected a building in good faith if he thought or had grounds for believing that his title to the land was not in order. As the declared policy of the Act is to confer valid title on purchasers who built on lands on the faith of titles subsequently adjudged to be invalid, it seems to me only natural, that the Act should require that the purchaser, to avail himself of the statutory protection, should have acted honestly and reasonably at the date of the original acquisition of the land, and having so acted should have believed in the validity of his title. If that be the right criterion for determining bona fides under the Act, how does the evidence square with the judge’s finding that the plaintiff erected the building in good faith? I agree of course that although bona fides is a subjective element, its existence must be determined objectively.”

[p.397] of [1971] 1 GLR 375

Then he said, “Was the situation in any way altered when the defendant challenged the plaintiff’s title and set up adverse claim to it? I cannot think that that by itself would have the effect of destroying the plaintiff’s bona fides and translating it into bad faith.” And again he said:

“If, as seems the case, the plaintiff believed that his title was valid, the defendant’s adverse claim can only have struck him as spurious or as Mr. Ofori-Atta more aptly puts it, ‘pretended claim.’ And one knows from experience that such claims are not rare in this part of the country. It is possible to conceive cases in which the mere disobedience or warning can be regarded as such reckless conduct as would disentitle a person to the protection of the Act but this is not one of such cases. To hold that the erection of a building after warning in all cases renders a person reckless and thus disentitles him to the statutory relief would rob the Act of its potency and thwart the declared object of the legislature. While the erection of a building on a disputed land after warning of adverse claim will invariably disable the ‘builder’ from relying on the equitable defence of acquiescence as an answer to a claim for possession, that by itself, in my judgment, cannot deprive a person of the protection which Act 2 is designed to confer.”

In Appiah v. Baabu, Court of Appeal, 15 May 1967, unreported, where the term “in good faith ‘ insection 2 (1) of the Farm Lands (Protection) Act, 1962 (Act 107), fell for interpretation, I said: “The first question for consideration, therefore, is the interpretation of section 2 (1) of Act 107, and in this regard I would quote the interpretation placed upon that subsection by Ollennu J. (as he then was) in Amoako Atta II v. Kofi II (NO. 2) [1962] 1 G.L.R. 384 at p. 395, which I approve and adopt. His lordship said: ‘The first most important words are “has in good faith’, i.e. upon honest, though erroneous, belief. If it is shown that a farmer has no such honest belief or that he has every reason to know and believe that he had no title to the land, and yet he enters upon land by force and occupies and farms it, he will not be protected by the Act. To interpret those words otherwise will mean making the Act an instrument of fraud …’ See also Gyetua v. Boafo [1964] G.L.R. 443, S.C. I would add that if there was anything which could arouse the suspicion of the farmer that there was something wrong with the transaction leading to the acquisition of the land, he would not be acting in good faith if he shut his eyes to the facts, or purposely abstained from inquiring into them. His conduct would then be fraudulent, because he would be taking an unscrupulous advantage over the real owner of the land. The onus is on the farmer to show that his belief was honestly held and was founded upon reasonable grounds, for a belief which is destitute of all reasonable grounds falls far short of the standard of conduct that will afford protection under Act 107.”

[p.398] of [1971] 1 GLR 375

In my view, section 1 (1) of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), is in pari materia with section 2 (1) of the Farm Lands (Protection) Act, 1962 (Act 107), and I would give the term “in good faith” in the two sections the same meaning.

Now, did the defendants by this test act “in good faith”? Both parties obtained their grants from the Nii We family. Before the grant was made to the first defendant in 1956, he saw the Gyasetse of Ashanti Blohum, Nii Yeboah Nortey, because he understood that he was the custodian of the Kotobabi land. A deed of gift (exhibit D) was executed in his favour. The first defendant was taken on the land by a surveyor called Coleman, who demarcated the land. According to the first defendant there was no evidence at the site that this particular piece of land had been previously allocated to someone else, and the first defendant fixed pillars which bore his initials on the four corners. Coleman himself lived at Kotobabi. It was admitted by the third witness for the plaintiff (Ayi Faafo) that Coleman was the surveyor for the Nii We family, and that he had recently surveyed the layout of the Kotobabi land. The site plan in exhibit D was made by Coleman, and the first defendant said, and he was not challenged on this point, that exhibit D was prepared by lawyers for the Nii We family. The first defendant further said that some six or eight weeks before the execution of exhibit D he gave drink to the chief of Kotobabi. He deposited sand and stones on the site, and it was not until February 1965, i.e. nine years after the grant, that he was challenged by the plaintiff. If all this evidence is accepted, and the learned trial judge found nothing to discredit it, I think it would be impossible to impeach the good faith of the first defendant. How could the first defendant suspect that the head of the Nii We family himself and their surveyor would convey to him land, already given to another person? The onus was on the plaintiff to prove that the first defendant had reason to know and believe that he had no title to the land. There is absolutely no such evidence in this case. Far from being reckless, I think the first defendant acted with circumspection, and consequently I hold, having regard to the criterion which the learned trial judge himself applied in the Wuta-Ofei v. Dove case supra), that on the evidence in this case the learned trial judge grievously erred in depriving the defendants of the protection of section 1 of the Land Development (Protection of Purchasers) Act, 1960

(Act 2).

In the result, I would allow the appeal and set aside the judgment of the court below, together with any orders as to costs, which if paid are to be refunded. The defendants are to have their costs on the substantive claim in the High Court and these are to be taxed. The consequential order that the defendants pay ground rent to the plaintiff for a period of three months at the rate of N¢40.00 per mensem is also set aside, and any rents paid are to be refunded. I would enter judgment for the defendants on the substantive claim with costs in this court fixed at N¢4133.18. The defendants failed to prove their counterclaim, and I would not disturb the trial judge’s decision on the counterclaim. The order for perpetual injunction made by the trial judge restraining the defendants is accordingly discharged.

[p.399] of [1971] 1 GLR 375

JUDGMENT OF SOWAH J.A.

Though I am in agreement with the judgment delivered by my brother Azu Crabbe, I wish however, to add a few words as I am differing with the judgment of a trial judge for whom I have the most profound respect. It must be said at once that the judgment if it had correctly decided the issues postulated by the parties, cannot be faulted. An examination of the pleadings and the issues, however evinces a situation, in my view, in which the learned trial judge ignored the issues before him and decided the case on entirely different grounds. It has often been said that the essence of pleadings is to afford each party to the contest, notice of the precise nature of the case of the other party and the challenge each is expected to meet and overcome, if he can.

The root of title of the plaintiff for which he claimed the declaration of title was crystallized in paragraph

(2) of the statement of claim and it reads thus:

“The plaintiff and his brothers became owners of a piece or parcel of land situate lying and being at Kotobabi, Accra, by virtue of a customary gift on or about 10 November 1949 from their late uncle Nii Phillip Tetteh Botchway the then head of Nii We family and Gyasetse of the Mankralo stool of Ashanti Blohum quarter in Christiansborg with the consent and concurrence of the elders and councillors of Nii We stool.”

For the plaintiff to succeed, he must establish that root without question. It is correct that when the root was challenged by the defendant the plaintiff in his reply not only reiterated the claim set above, but asserted further:

“(11) In answer to paragraph (15) of the statement of defence the plaintiff says that pursuant to the legal notice dated 26 October 1964 and published by the solicitor of Osu stool, the plaintiff obtained confirmation of their customary title by a deed of gift executed by Osu Mantse on 22 November 1964.

(12) By the said deed of gift the Osu Mantse and the accredited representatives of all the four quarters of Osu confirmed the customary grant of the land of the plaintiff and his brothers in their capacity as subjects of Osu stool and direct descendants of the original occupiers of the Kotobabi rural lands.” My brother Azu Crabbe, has analysed the evidence in great detail and it will be otiose for me to go over it. Suffice it to say that in the case of Akwei v. Awuletey [1960] G.L.R. 231, S.C., the title put forward by the plaintiff was put to test and found defective. The court then held that title to Osu rural lands generally, and more particularly the area then in dispute which is a portion of the land now in dispute, was vested in the Osu stool; that only the Osu stool with the consent and concurrence of the elders of the main quarters of Osu could make grants of land designated Osu rural land. The claim of the Nii We family to this land was decisively defeated.

[p.400] of [1971] 1 GLR 375

I have also had the opportunity of reading my brother Siriboe’s judgment and with the greatest respect, I am unable to agree with him; for his judgment apparently ignores the meaning and the effect of the decision in Akwei v. Awuletey (supra). He states at p. 404 infra that the plaintiff’s occupation of the land “since 1949, was substantiated by the evidence of the plaintiff and his witnesses,” and refers to the relevant portions of the evidence. The occupation of the plaintiff was based upon an express grant of the land after it had been demarcated. The effect of the decision in Akwei v. Awuletey was that the grantors, namely, the Nii We family, had no property in the land; thus the grant is void ab initio and the occupation following the grant was unlawful.

Perhaps it is necessary to refer to some of the conclusions of Ollennu J. (as he then was) when he gave judgment in Akwei v. Awuletey in the court of first instance. He held, inter alia as set out at p. 232 that: “(f) Subjects to the Stool may with express or implied permission of the head of the quarter occupy any portion of the stool’s rural or village lands. (g) The heads of the quarters control the rural or village lands through the heads of the villages on the land, such heads being appointed by the head and elders of the quarter in charge of the particular land, and express grants of portions of the rural or village lands are made by the heads of the quarter acting with the concurrence of the village headman.”

It was from these findings that the appeal was allowed.

After a review of the evidence and the reasons of the learned judge the Supreme Court held at p. 241: “The land in dispute is neither quarter land nor outskirts land adjacent or contiguous to the Ashanti Blohum quarter but it is Osu stool rural land which the Osu Mantse and his elders including the quarter headmen could grant… Judgment should be entered for the co-plaintiff-appellant on his claim as occupant of the Osu stool for a declaration that the land in dispute as described and bounded in the writ of summons is a portion of Osu stool rural lands.”

Thus, any overt acts by the plaintiff emanating from or pursuant to the express grant cannot avail to buttress his title to the land. The issue herein between the parties thus became one of priorities. The case of Seraphim v. Amua Sekyi [1962] 1 G.L.R. 328 on which reliance is sought to be placed is the subject-matter of a pending appeal; I therefore do not wish at present to express any opinion thereon. The next questions which one may ask are as follows: Was the defect in plaintiff’s title cured by his subsequent acquisition of grant from the Osu stool? And did the evidence of the Osu Manche carry the case of the plaintiff any further? The answers to these questions must be in the negative. First, the plaintiff could not be said to have obtained a good grant from the Nii We family because the said Nii We family qua family, had no property in the said land; thus whatever grant the Osu Mantse purported to confer upon the plaintiff, must be, in the nature of things, [p.401] of [1971] 1 GLR 375 a fresh grant. But at the time Nii Dowuona V executed the conveyance to the plaintiff, his predecessor had already made a valid conveyance to the first defendant and had effectively divested the Osu stool of any power to make a subsequent grant in respect of the area occupied by the defendants. My brother Azu Crabbe has shown further that at the time of the alleged confirmation of the customary grant to the plaintiff, legal title of the whole of Maamobi-Dzorwulu land was vested in the President of Ghana and Nii Dowouna V could not convey any title.

Thus the plaintiff having failed to establish his title, his claim ought to have been dismissed, for that title is securely anchored to any which Nii We family possessed. Nevertheless the learned judge proceeded to reason that an Osu man or subject was entitled to the occupation of vacant Osu stool land and that his effective possession would be good against all, including the Osu stool. First, this was not the case put forward by the plaintiff, indeed if he had, he ought to have failed because the learned trial judge himself had this to say about his possession (the emphasis is mine):

“One other aspect of this case common to both parties, is that each said he entered into possession of the land after the grant and erected corner pillars to mark its confines. While the first defendant said he thereafter deposited sand on part of the land and paid periodic visits to it, the plaintiff said he not only put caretakers on the land but that he from time to time made food farms on the land. I see nothing to discredit about either story. The area granted to the first defendants is a quarter of the plaintiff’s land, and the former might well have placed the sand on a portion of it which had then not been reached by farming and was therefore unnoticed by the plaintiff or his caretaker. But I find positively that the plaintiff erected corner pillars on the land and farmed on it from time to time. I think it was nothing like sustained farming but that is was spasmodic.”

It seems to me the first defendant being an Osu subject, was equally entitled to occupy vacant Osu stool land which was not in the possession of any other Osu subject. A subject relying on possession simpliciter (i.e., without permission), must prove that the area claimed was in his effective possession. If that were not so, a subject by merely reducing a small area into possession, can claim possessory title to all adjoining lands. This, in my view, is the limitation consequent upon a claim of possessory title without a formal or informal grant.

The evidence which was accepted by the learned judge indicated that the area occupied by the defendants had not been reduced into possession by the plaintiff; to succeed, therefore, he must fall back on his grant of 1949 which cannot avail him. It is now trite learning that a plaintiff seeking a declaration of title must succeed on the strength of his own case and this the plaintiff herein failed to do.

I would therefore, allow the appeal.

[p.402] of [1971] 1 GLR 375

JUDGMENT OF SIRIBOE J.S.C.

The case for the plaintiff, which I consider to be simple and straightforward, is that he and his brothers Emmanuel Ashong Hammond, Alfred Botchway Hammond and George Adu Hammond are members of the Nii We family, whose ancestors (subjects of the Osu stool) migrated from Amanfrom to settle on the Kotobabi land many generations ago. The plaintiff stated that, formerly, the family controlled the land, but since 1960, following the judgment delivered in the case of Akwei v. Awuletey [1960] G.L.R. 231, S.C. the Kotobabi land has been adjudged the property of the Osu stool.

On 10 November 1949, the plaintiff said a portion of the land was granted to him and his brothers by the then head of the Nii We family, Nii Tetteh Botchway, acting together with his elders. It was a customary grant for which a drink of twelve guineas was given by them. The area so granted is as described in paragraph (3) of the statement of claim, and undoubtedly, includes the portion which forms the subject-matter of this case.

As is the usual practice, people were deputed to go and demarcate the land, and on this occasion, it was one Yebuah Nortey accompanied by two others, John Mate Kole and Ayi Faafo (the third witness for the plaintiff) whom the head of family Nii Tetteh Botchway sent to carry out this assignment. A day after the demarcation, the plaintiff said that he put pillars to mark the corners of the land. Not only did he farm on it, by planting cassava and groundnuts, but in addition to that, he appointed one Osabutey and Faafo his third witness as caretakers of the land, who also used to weed it.

Since the grant was made, there had been no disturbance of any sort from anyone as to their occupation of the land until the 8 February 1965 when Faafo informed the plaintiff of some clearing being made of a portion of the land by someone using a tractor. When the plaintiff visited the site, he found a tractor bearing the inscription “N.C.C.” the driver of which refused, upon interrogation, to disclose the person who sent him to work there. A report was, therefore, made by the plaintiff to the Osu Manche at the time Nii Dowuona V, who sent his linguist to go and pour libation and also to put up a white flag on the site, as a customary warning to keep people off the land as it belongs to someone else.

Three days later, when the plaintiff visited the land again, he met the second defendant there. He warned him off the place, adding that it was for him, but the second defendant too, claimed that the land belonged to his elder brother, the first defendant. On the same day, the plaintiff said that the two defendants came to his house and offered to settle the matter with him as they did not want any trouble, but he directed them to go and see the Osu Manche, to whom the plaintiff had earlier reported the trespass and who had in consequence thereof, caused certain custom to be performed by his linguist on the land. Although the Osu Manche sent for the plaintiff the next day, in the hope of trying to settle the matter, this could not be done, because, while he was waiting with the plaintiff, the second defendant was sent to inform the Osu Manche that the plaintiff

[p.403] of [1971] 1 GLR 375 had already caused a letter to be written by a solicitor to the first defendant who had, as a result, refused to take part in any settlement.

The defendants having ignored his warnings to leave the site, the plaintiff said that he and his brothers went and removed the boards which the former had used for setting up of the foundation of the building, an act which resulted in the prosecution of the plaintiff for causing damage. It was upon a complaint made to the police by the first defendant, but the charge was dismissed, and rightly so in my view, since the matter appeared to be of civil rather than a criminal nature. As was expected, the action in this case was thereafter instituted when the defendants persisted in their refusal to vacate the site, even though, at that time, actual building operation had not been started other than the mere set-out for the foundation. Continuing with his evidence, the plaintiff said that some time between 1961 and 1962, the Osu Manche, Nii Dowuona IV, caused notices to be published inviting those to whom grants of plots of the Kotobabi land had been given to come and see him. This was after the judgment in Akwei v. Awuletey (supra). In obedience to the said publication, the plaintiff said he and his brothers went to see the Osu Manche, Nii Dowuona IV, who gave the plaintiff a specimen draft document to be prepared for signature, after they had narrated to the chief the nature of their grant. On completion, however, the document could not be signed as promised before Nii Dowuona IV was destooled. It was some time in 1964, during the reign of Nii Dowuona V as Osu Manche, that he signed the plaintiff’s document, confirming the original grant to him and his brothers that is the document which has been criticised as having offended or sinned against certain provisions of the Land Registry Act, 1962 (Act 122), and the Administration of Lands Act, 1962 (Act 123), respectively.

On points material to this case as disclosed in the evidence, the plaintiff was supported by his three witnesses, Alfred Botchway Hammond, Nii Dowuona V and Ayi Faafo. The latter who stated that his age was 56 years at the time of giving his evidence, which was on the 4 October 1967, said that he was born at Kotobabi and had lived there all his life, having taken part in the demarcation of land to grantees, both subjects and non-subjects, on several occasions. He said he knew the land in dispute which is part of the portion granted to the plaintiff and his brothers, the demarcation of which he took part and also he became caretaker thereof up to the time the act of trespass was discovered by him. That after the grant to the plaintiff, Yebuah Nortey, with whom he demarcated the land, later became the head of the Nii We family and he also made grants to other people.

The defence, on the other hand, is that the land in dispute was originally a customary grant obtained by the first defendant from the same Nii We family in 1956, whose head at the time was one Nii Yebuah Nortey. Incidentally, Yebuah Nortey, according to the plaintiff, was the same person whom Nii Tetteh Botchway deputed together with two others already mentioned to demarcate the plaintiff’s land. In 1956, he had become the head of the family upon the demise of Nii Tetteh Botchway, and accordingly exercised the powers of granting portions of the land to subjects as well as non-subjects of Osu as his predecessor did.

[p.404] of [1971] 1 GLR 375

The first defendant said he approached Nii Yebuah Nortey for the land because, at the time (1956), he thought the Nii We family were the owners. Following the grant, the first defendant said that Yebuah Nortey executed a document evidencing the gift of land to him which was demarcated by a surveyor called Coleman. There was nothing then on the land to suggest that anyone else was in occupation since the place was overgrown with creeping thorns. He said he saw no cassava or groundnut plantation on the land, which was demarcated for him, measuring 148 feet by 100 feet. There were no pillars either, but after the demarcation, he fixed four with his initials “G.Y.O” on the corners of the land he was given. Thereafter, he cleared the whole area, put sand on it and visited the place periodically. In fixing his pillars, the first defendant said he was assisted by somebody whose name he did not mention, but said “he was living in a nearby swish house.”

About 1961, following the publication of a notice in the newspapers at the instance of Nii Dowuina IV, as Osu Manche, the first defendant said he took his document to him and the latter endorsed it for him some time in January 1962. The notice called upon all those to whom portions of the Kotobabi land had been given by any person other than the Osu stool, to go and see the chief with their documents, hence he also went as stated.

The first document the first defendant said, was registered in 1957, but the registration of the endorsement was effected on or about 26 March 1965. Before then he in turn had in or about 1963, granted the said land to his younger brother the second defendant. It was when the latter started to carry on his building operation in 1965 that the incidents connected with it as already narrated led to the institution of the action. The second defendant in his evidence confirmed the transfer of the land to him by his brother the first defendant in 1963. He also said it was on 14 February 1965, while he was setting out the foundation of the building that the plaintiff came with his brothers to destroy the “wawa” he was using in making the set-out; also a shed he had erected and a water shortage, damages for which he laid claim in their counterclaim.

When the land was given to him, the second defendant said that he had no caretaker but at the time he began the construction, he put a watchman there. With regard to the custom performed on the site, he said that although he personally did not see the white flag on the land, his labourers, however, told him about it. He also admitted that he and the first defendant on that Sunday, 14 February 1965, went to see the plaintiff in the latter’s house when the plaintiff not only claimed that the land belonged to him and his brothers, but also directed the defendants to see the Osu Manche, Nii Dowuona V, to whom the plaintiff said he had already reported the matter.

That the defendants agreed to appear before the Osu Manche Nii Dowuona V for a settlement, but later changed their mind is made clear by the second defendant who said: “First defendant sent me to deliver a message to the Osu Mantse. He asked me to tell the Osu Mantse that

[p.405] of [1971] 1 GLR 375 the proposed meeting would not come on because he received a letter from the plaintiff’s lawyers and would therefore deal with them.” In connection with the plaintiff’s application for an injunction, the second defendant said:

“After the injunction was refused, I commenced work again. I continued the building in spite of the writ and I completed it in December 1965. I went into occupation of the building in March 1966…. I know someone was claiming this land as his [referring, no doubt, to the plaintiff] but in spite of it, I did not wait.” On this set of evidence, the learned judge resisted the temptation of yielding to the seemingly persuasive arguments on behalf of the defendants as have been advanced on this appeal. He rather found in favour of the plaintiff on his claims for a declaration, damages and injunction. It is said that his finding was wrong and should be reversed for reasons given in the two judgments just read, which may be stated briefly as follows:

(1) that the alleged customary grant of 1949 upon which the plaintiff relied to establish his claims, was by his own showing, null and void;

(2) that the confirmatory deed (exhibit E) sinned against the provisions of section 7 (1) of the Administration of Lands Act, 1962 (Act 123), and also section 24 (1) of the Land Registry Act, 1962 (Act 122). Consequently, the learned trial judge should have disregarded it;

(3) that the plaintiff failed to amend his statement of claim so as to plead the new case which he substituted and for which he got judgment;

(4) that the plaintiff did not prove that he was in effective possession at the time the area in dispute was granted to the first defendant.

With respect, my reading and consideration of the record together with counsel’s arguments, do not lead me to the same conclusions arrived at in the said judgments.

As I understand the plaintiff’s case, although it appears he traced his claim to a customary grant originally made by the head of the Nii We family, he nevertheless, recognised the absolute ownership of the land as vested in the Osu stool, hence confirmation or concurrence by the latter was obtained by him as did the first defendant when the judgment in Akwei v. Awuletey (supra) became known. His occupation of the land since 1949, was substantiated by the evidence of the plaintiff and his witnesses, relevant portions of which have already been referred to.

In respect of the plaintiff ‘s grant and occupation of the land, the trial judge, after analysing the whole evidence, said:

“I was impressed with the plaintiff and Alfred Hammond. I believe they are truthful witnesses. Their story of the grant was clinched by the evidence of Ayi Faafo who swore that he took part in the demarcation and thereafter looked after the land for the

[p.406] of [1971] 1 GLR 375 plaintiff. Indeed it was a result of a tip given by him, that the defendants’ entry upon the land became known to the plaintiff and his brother. Ayi Faafo was closely cross-examined but his answers were clear and consistent and he made no attempt to exaggeration or embroidery and I am satisfied that I can place reliance on his evidence.

The very prompt way in which the plaintiff reacted when he was apprised of the defendant’s entry on the land seems to me to be a circumstance corroborative of the plaintiff’s story.”

Then to the argument that defendants had better title to the land because they obtained their grant from the Osu stool earlier, the learned judge had no difficulty in rejecting that argument as reflecting less than the true position. For, as he said, both parties in truth obtained their original grants from the Nii We family, and that it was after the judgment in Akwei v. Awuletey (supra) that both obtained the confirmation of the Osu stool; the effect of which ratified the grants retroactively, that is, in the case of the plaintiff, from November 1949, and the defendants, 1956. The learned judge supported his view by reference to documents tendered at the trial which the Osu stool executed in favour of both sides, and in which their grants from Nii We family were recited and confirmed. Hence the learned judge concluded: “That leaves the parties where they began.”

Having so held as to the relative positions in which the parties stood, the learned judge again rejected the contention of the defence counsel that they had priority by reason of the fact that the grant in 1956 was registered in 1957. He based himself on the decision of Graham Paul C.J. (Sierra Leone) in Moubarak v. Japour (1944) 10 W.A.C.A. 102. In that case the learned Chief Justice said p. 106:

“The Plaintiff has sought to eke out his case by reference to the Land Registry Ordinance (Cap. 112), but there is no substance in the plea. The Land Registry Ordinance clearly does not give to a registered deed any priority over an earlier grant by native law and custom. Furthermore the Ordinance (section 23) provides that registration of an instrument shall not ‘confer upon it any effect of validity which it would not otherwise have had’.”

The fact that the plaintiff said he and his brothers entered into possession of the land by virtue of the oral grant in 1949 before the Osu stool’s confirmation, did not mean, as appears to be the view held against him, that he claimed allodial or absolute title of ownership, which by his pleading and evidence, he made perfectly clear, was vested in the Osu stool. It was on account of that recognition that, as already pointed out, concurrence or confirmation of their grant was later obtained by the plaintiff from the Osu stool and, what is more, when the defendants’ act of trespass was detected, a report of it was made and, I think quite rightly so, to the occupant of the Osu stool as their overlord and owner of the land.

The plaintiff’s pleadings, particularly paragraphs (2), (7) and (8) of the statement of claim and (2), (3), (4), (7), (11) and (12) of his reply to the

[p.407] of [1971] 1 GLR 375 defence and counterclaim, read together with the plaintiff’s evidence and that of his witnesses, in my view, create no difference between the pleadings and the case he put forward so as to necessitate an amendment, without which, as has been held, his claim should fail.

It is settled that it is competent for a plaintiff to introduce new matter by way of set-off or by way of controverting the statements in the defence, provided that he does so within a reasonable compass and in a reasonable manner. Thus in the case cited by Azu Crabbe J.A., i.e. Williamson v. London and North Western Ry. Co. (supra) Hall V.C. at pp. 794-795 continued his judgment as follows:

“I have said in the course of the discussion, that, with reference to the numerous statements which are contained in this replication in answer to particular paragraphs in the defence, that as to many of them apparently there may be no objection-I mean that where, in fact, the Plaintiff introduces new matter and new facts by way of set-off, or controverting the statements in the defence, that is all legitimate, provided always that it be done within reasonable compass and in a reasonable way.”

Again, in Breslauer v. Barwick (1876) 36 L.T. (n.s.) 52 at p. 53, the plaintiff’s reply set out new facts not contained in the statement of claim, but which sought to explain why certain things happened in the case, i.e. the use of the printed forms of a certain company bearing the latter’s name thereby creating the impression as if the company and not the plaintiff was the charterer, and on account of which the defendant (owner of the steamer) tried to avoid liability. It was held on a demurrer, that there was no departure and that the reply was good. These cases, among others, indicate that it is not the introduction of every new matter or fact in a reply that amounts to setting up a new case.

As I have said, long before the inception of the action in the instant case, the plaintiff had recognised the Osu stool’s absolute ownership of the land in question and he cannot, therefore, be said to claim title through the Nii We family. The plaintiff’s approach to the occupant of the Osu stool for confirmation of his grant would have been meaningless if subsequent to that, he holds the view that the Nii We family were the owners of the land. Once this position is clearly understood, it is easy then to appreciate that by his reply, the plaintiff did not mean to set up a new case as alleged. The reply was aimed at controverting the statements in the defence, particularly paragraphs (2) and (3), which seemed to create the impression that by his statement of claim, the plaintiff meant he derived title to the land through the Nii We family which is not the case.

In my view, all that the plaintiff did was to explain how he and his brothers came on the land, and the reason for claiming to be entitled to remain in occupation in preference to the defendants, notwithstanding the decision in Akwei v. Awuletey (supra).

Giving evidence in that case, Nii Okwei Omaboe, Osiahene to the Osu stool, under cross-examination, said, “Yes, I know a lot about land

[p.408] of [1971] 1 GLR 375 tenure in Osu. Any subject of the stool can without express grant occupy and build on any portion of the Osu stool land which is not outskirt land, not already occupied by another subject or grantee of the stool.” The land in dispute then included portion of the disputed area in the instant case to which that piece of evidence would therefore, certainly apply. In that very case, the Osu Manche at the time, Nii Noi Dowouna IV, supported the Osiahene’s evidence about the subject’s right to occupy portions of the land in question. But more important was his further evidence as follows:

“The Maamobi-Kotobabi area was a farming area for the servants of the Osu Mantsemei. Occupation of this area began before the Kantamanso War about 1826. The servants of the Osu stool finally settled on the land previously they used to go and farm and then come back home…. The Osu stool and its elders, as the value of land has become very important, have now decided that they themselves will help in developing the place…and as the area now falls within what we called Osu stool land, the stool now grants portions in the usual way to stool subjects.”

By that evidence, I think, it was made clear that the Osu stool started to show interest in the grants made of portions of the land only quite recently, when its value became enhanced. Before then, how grants were made in respect of land appeared to be what the plaintiff’s second witness Nii Dowouna V stated in his evidence; that he Nii We family formerly lived on the Kotobabi land and as such, in former times, they were the persons who made grants. It was after the appeal that the government decided the land should come under the stool. That evidence was consistent with what Faafo said. It is no wonder then that both parties obtained their original grants from that family; nor is it surprising why the learned trial judge in his judgment, made the following observation: “It would seem that until the early 1960s, the Osu stool allowed the Nii We family to please itself with the Kotobabi land, and they in fact made grants of this land to subjects of the stool for building and kindred purposes.”

Enough, I think, has been said to show that the plaintiff’s entry to the land in 1949, whether it was with or without the stool’s consent, cannot be said to be null and void, in view of the evidence of the Osiahene supported by the Osu Manche, that an Osu subject can without express grant of the stool occupy portion of the stool’s rural land not already occupied. In this connection, what seems to be material is the question of occupation or possession, and since that question has been decided in favour of the plaintiff, unless the defendants can show that they are the true owners, their entry to the land cannot be justified. That I understand to be the principle dealing with the issue of possession in the judgment of Ollennu J. (as he then was) in Seraphim v. Amua-Sakyi [1962] 1 G.L.R. 328 cited by Azu Crabbe J.A. In the instant case, it is obvious the defendants could not prove ownership, because it is shown to be [p.409] of [1971] 1 GLR 375 vested in the Osu stool. In my opinion, therefore, the citation seems to favour the plaintiff rather than the defendants.

From this must be considered a further passage in that judgment of Ollennu J. appearing on pages 334-335 with regard to alienation of stool land to stool subjects (also referred to by Azu Crabbe J.A. at p. 394, post) the relevant portion being that:

“A stool has no right to alienate stool land in the possession of a subject or grantee of the stool or anyone who derives title from a subject or grantee. . . . Therefore although the stool is the owner of the absolute estate in the land, yet if it is shown that subjects of the stool were in occupation of the land at the date when the stool made the conveyance to the plaintiff, those conveyances would be null and void ab initio. The possession by the subject may be by implied grant, i.e. by his entry upon the land as agricultural or rural land and farming it, or it may be by actual grant; it does not matter which.”

It follows therefore, that inasmuch as the learned trial judge found as a fact, that the plaintiff was already in possession of the land at the time the Nii We family or the Osu stool purported to grant portion of it to the first defendant, that grant was null and void ab initio. The position would have been the same, whether the defendants, exercising their rights as subjects of the Osu stool, had without any express grant, entered upon the land, because the plaintiff was already in possession.

In the process, the plaintiff as a subject, had acquired what is described as a determinable estate in the land, in defence of which it is said, he can successfully maintain an action against the world at large, including even the stool: See Ollennu’s Principles of Customary Land Law in Ghana, p. 57. It may well be that the stool realising later that the portion purported to have been granted to the defendants fell within the area already occupied by the plaintiff and his brothers, hence a customary warning to that effect was given, so that the defendants could go and have the position rectified, either by a fresh grant to be made to them by the chief, or a settlement to be effected between them and the plaintiff and his brothers. This, as the evidence makes manifest, was not done because, the defendants refused to appear before the Osu Manche for the simple reason that the plaintiff had caused his solicitor to write to them claiming the land.

It will be recalled that, unlike the plaintiff, the defendants at no time called any witness to prove the demarcation of their land to enable the court to decide the condition in which the land was at the time of the said demarcation. The first defendant said that after Nii Yebuah Nortey had made the grant to him, it was one Coleman and another person called Adjei Botchway, who accompanied the first defendant to demarcate the land for him. Nii Yebuah Nortey did not, as the first defendant said, visit the site with him. [p.410] of [1971] 1 GLR 375

Therefore, the possibility of Coleman and Adjei Botchway (who did not take part in the demarcation of plaintiff’s land), mistakenly cutting a portion of the plaintiffs land for the first defendant cannot be ruled out. It seems to me that the position would have been different if, Nii Yebuah Nortey who, the plaintiff said, demarcated the land, had been the same person that carried out the demarcation for the first defendant too. In that case, it is obvious he would have known that the area was already in the plaintiff’s possession. But the demarcation of the land aside, the first defendant did not even call whoever it was that assisted him in fixing his pillars allegedly bearing his initials “G.Y.O.” to mark the land granted to him. Nor did the second defendant also call his watchman who looked after the land when he started to build on it.

Having regard to all this, and the evidence so convincingly given by the plaintiff and his witnesses, there is no doubt that the preponderance of the evidence was very much in favour of the plaintiff, hence the learned trial judge found for him. That finding was in no way affected by what is attributed to the learned judge as having said, i.e. that he saw nothing to discredit about the stories told by the parties concerning possession or that the first defendant might have dumped his sand on a portion of the land not reached by farming and, therefore, unnoticed by the plaintiff.

After all, if a person claims to be in possession of a piece of land, he does not necessarily have to prove this by showing that he always clears all the site in question. Depending on its size, it is sufficient if it can be shown as in this case, that the plaintiff erected pillars to mark the confines or limits of their land and that he and the caretaker farmed on it from time to time.

Immediately following the portion attributed to the learned judge, he proceeded to say: “But I find positively that the plaintiff erected corner pillars on the land and farmed on it from time to time. I think it was nothing like a sustained farming but that it was spasmodic. I also find it proved that Ayi Faafo was placed on the land as caretaker by the plaintiff and that he also from time to time made seasonal farms on the land or portions of it.”

Continuing, the learned trial judge made this further finding:

“In the result, I find that in November 1949, an area of land measuring 148 feet by 100 feet and situate at Kotobabi was granted to the plaintiff and that the latter entered into and remained in effective possession of the land. I also find that in 1956, the self same grantors purported to grant a portion of that land measuring 140 feet by 100 feet to the first defendant. In those circumstances, I should hold that the latter grant to the first defendant was ineffective and passed no title to him.”

In the light of the foregoing findings of fact so clearly made and amply supported by the evidence, the criticism levelled against these portions of the said judgment, is with respect, not justified. Equally so is [p.411] of [1971] 1 GLR 375 the criticism that the confirmatory deed (exhibit E) in favour of the plaintiff sinned against the Land Registry Act, 1962 (Act 122), and the Administration of Lands Act, 1962 (Act 123).

There is no need, in my view, to go into this question of the two Acts at length, since their application here concerns grant of stool land by a stool to its subject who is entitled by customary law to free use of’ the land. And if it is remembered, as has been said earlier on, that it need not be by express grant but depends upon occupation, then it is sufficient to say that the two Acts did not affect the plaintiff who is proved to have been in effective occupation or possession of the land since November 1949, many years before the two Acts were passed.

Again, whatever is said in criticism of the learned judge’s invocation of the relevant provisions of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), one thing is certain, and that is, having regard to all the circumstances of this case, the defendants, to be precise, the second defendant, cannot be said to have acted in good faith. The learned judge so found in his judgment.

In the case of Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102, where the application of Act 2 fell for consideration and determination, I said this, “There is no doubt that the answer to the question as to whether a purchaser or a person claiming through him has in good faith erected a building under the Act, will necessarily vary with the circumstances of each case.”

Apaloo J.S.C. (as he then was) who was a party to the decision and read the second judgment, also had this to say: “It is possible to conceive cases in which the mere disobedience of warning can be regarded as such reckless conduct as would disentitle a person to the protection of the Act, but this is not one of such cases.” Both of us in the end, came to the conclusion that the circumstances of the case indicated that the plaintiff erected the building in good faith, and was therefore entitled to the benefit of the Act. It is unnecessary to recount in this case all the incidents since the grant was allegedly made to the first defendant in 1956 and subsequent to that, his transfer of the land to the second defendant in or about 1963 up to the time the latter finally erected his building, for which protection under the Act is now sought. To mention just a few: The defendants were aware that their entry to the land had been challenged at a time when nothing other than mere clearing of the site had begun. They were warned about the trespass, both by the plaintiff and also by the customary performance in the manner already explained. They refused to heed the warning and also refused to appear before the Osu Manche, even though they had previously agreed to do so for the purpose of effecting a settlement.

Such conduct is certainly not in keeping or compatible with that of a subject who claims to be entitled to the free use of stool or tribal land. For, as pointed out in Ollennu’s book on the Principles of Customary Land Law at p. 55, the subject’s right to occupy portion of such a land, is subject to the subject acknowledging his loyalty to the stool or tribe. Failure to answer the call of his stool occupant as happened in this case, in my view,

[p.412] of [1971] 1 GLR 375 amounts to disobedience to the stool occupant which cannot be said to be in conformity with his loyalty to the stool.

There was also the evidence that during the unsuccessful prosecution of the plaintiff upon the complaint made by the first defendant, there was suspension of work on the site which had been reached just the set-out for the foundation; but resumption took place later during the pendency of the action. There was therefore, sufficient warning to warrant the second defendant to stay his hands until the result of the case was known, before proceeding with the actual building. This he failed to do. In the circumstances, the learned judge was justified in holding that the second defendant was reckless and therefore, not entitled to the benefit which the Act provides.

For the above reasons, I am of the opinion that the appeal should be dismissed with costs.

DECISION

Appeal allowed.

K.T