Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN AND BLAY JJSC AND ACOLATSE J
JUDGMENT OF BLAY JSC
These cross-appeals came from the High Court, Kumasi, presided over by Djabanor J. in a case in which the plaintiffs claimed against the defendants a declaration of title to a large tract of land situate and lying at Kyempo-Subeng in Ashanti-Akim. They also claimed £G2,000 damages for trespass and an order for possession and perpetual injunction. For the purpose of convenience the parties will be referred to in this judgment as plaintiffs and defendants simply. The plaintiffs’ case in the court below was that they as members of a farmers’ syndicate purchased from the stool of Kyempo, now represented by the first defendant, the tract of land claimed in the writ of summons; that the transaction of sale and purchase was in accordance with customary law and practice and was concluded in the year 1925; and that after payment of the purchase price for the land they were put in possession by the vendor stool and were peaceably in possession until the year 1952, when the first defendant started to put other persons including the other defendants on the land. The plaintiffs further said that the sale of the land was later in the year 1940 confirmed by a deed of conveyance executed in their favour by the vendor stool and its overlord, the stool of Kokofu. They said that all attempts to get the defendants to remove his men from the land having failed they were forced to institute proceedings against them, the defendants, claiming the reliefs enumerated in their writ of summons.
The first defendant in his defence denied that the land had been sold to the plaintiffs by his stool and claimed that the land had always been part of Kyempo stool lands, portions of which his stool had allocated to both subjects of the stool and to strangers for many years past. All the defendants pleaded in effect that they had acquired the land from the first defendant in good faith, and had been in possession for several years cultivating cocoa and other crops thereon without any interference or warning from the plaintiffs or their syndicate. They further contended that even if the plaintiffs’ allegations in their statement of claim were correct, they the plaintiffs were estopped by conduct from claiming the land now.
The learned trial judge after a careful hearing found that the plaintiffs had proved their title to the land. He therefore awarded them £G1,000 damages as against the first defendant for trespass. As regards the other defendants, the learned judge held that even though their plea of estoppel by conduct could not be sustained, they were however protected by the provisions of the Farm Lands (Protection) Act, 1962.1 Applying the provisions of that Act, he proceeded to award compensation to the plaintiffs in respect of the pieces or parcels of land occupied by each of the defendants. He also ordered all the defendants, except the first defendant, to attorn tenant to the plaintiffs.
It is against this judgment that the plaintiffs have appealed to this court on the following main grounds:
1. The learned trial judge was wrong in holding that the provisions of Act 107 were applicable in this case.
2. The learned trial judge was wrong in not making a finding of declaration of title simpliciter against the defendants-appellants in favour of the plaintiffs-respondents.
3. The learned trial judge was wrong in giving protection under Act 107 to all the tenants enumerated in exhibit 2 inasmuch as the other tenants apart from second and fifth defendants-appellants were not parties to the suit.
4. The learned trial judge was wrong in departing from the principle of calculation laid down in Act 107 in awarding compensation.
5. The learned trial judge erred in giving protection to the defendants because the entry onto the plaintiff’s land by the defendants was not bona fide and also the defendants had notice of the sale of the land to the plaintiffs.”
The defendants also have appealed to this court on the following main grounds:
1. That the judgment was against the weight of evidence.
2. That the costs awarded against the appellants were excessive.
3. That having rightly interpreted Act 107 the learned judge was only to give his reliefs in accordance with what has been set out in the Act and no more.
4. That the basis of his calculation of the compensation was wrong.
5. In view of Act 107 the finding of trespass against first defendant was wrong and in any event the damages of £G1,000 were very excessive.
6. The order for payment of timber proceeds from the defendants’ farms to the plaintiffs was in error.
7. That the order asking the defendants to attorn tenant to the plaintiffs was legally wrong.”
Counsel for the plaintiffs in arguing the grounds of appeal filed by him confined himself mainly togrounds one and five above and contended that on the evidence the defendants had failed to prove that they acquired the land in good faith and could therefore not claim protection under Act 107. In my view there is no substance in this contention. There is on record ample evidence to support the learned judge’s findings. It was admitted by the plaintiffs that the lands granted by the first defendant to the other defendants were forest lands and there was nothing to show that some had previously been sold to the plaintiffs. The only evidence adduced by the plaintiffs which could remotely be regarded as notice to the defendants was that of Tetteh Kwao, who said that he warned the defendants not to continue farming when he found them on the land. It is clear therefore that this warning was given after the defendants had acquired the land. In my view the “good faith” stipulated by the Act must relate to the time of the acquisition and not to what happened afterwards.
Counsel next complained that the land in respect of which the court granted protection under the Act was not clearly defined but when, however, it was pointed out to him that that matter could easily be settled by interlocutory proceedings he dropped the point and did not pursue it any further.
On behalf of the defendants, counsel intimated that he accepted the findings of fact made by the learned trial judge. He therefore on behalf of the first defendant confined himself to the quantum of damages awarded which he contended was excessive. In my view, however, the amount of damages awarded is not excessive having regard to the conduct of the first defendant. He cannot plead that he was unaware of the sale of the land to the plaintiffs. The evidence he gave in a previous suit and which was tendered in evidence in the present suit proves conclusively that he knew of the sale of the land by his stool to the plaintiffs. I am therefore not disposed to interfere with the learned judge’s assessment of damages.
Learned counsel next argued that the learned judge having rightly interpreted the Farm Lands (Protection) Act, 1962, he was only to give his reliefs in accordance with what has been set out in the Act and no more. He contended therefore that the order asking the defendants to attorn tenant to the plaintiffs was legally wrong. I am of the view that this argument is a sound one. The Act provides in section 2 (2) that where a farmer is found to be protected the court shall “make an order providing that the acquisition by the farmer shall be deemed for all purposes to have operated to confer on him the title to the land.” Therefore the court having applied the Act and awarded compensation to the plaintiffs, it was not competent for it to order that the defendants should attorn tenant at the same time. Doing so would defeat the intent and object of the Act. This ground of appeal therefore succeeds and I would order that that part of the judgment ordering the defendants to attorn tenant to the plaintiffs be set aside. The defendants’ appeal to that extent is accordingly allowed except the first defendant’s which I would dismiss as of no merit. In the result I would dismiss the appeal of the plaintiffs in toto and allow the appeal of the defendants as stated above. The defendants (except the first defendant) will have half of their costs of the appeal. They will however pay to the plaintiffs half the costs awarded in the court below.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
I agree
JUDGMENT OF ACOLATSE J.
I also agree.
DECISION
Plaintiffs’ appeal dismissed.
Defendants’ appeal allowed in part.
S.A.B.
