RE ACCRA INDUSTRIAL ESTATE ACQUISITION; ANKRAH AND OTHERS v. BOTOKU AND OTHERS [1966] GLR 119

Division: SUPREME COURT

Date: 31 JANUARY 1966

Before: MILLS-ODOI, APALOO AND AKAINYAH JJ.S.C.

CASE REFERRED TO

Bonne III v. Hammond (1954) 14 W.A.C.A. 492.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the High Court dismissing the appellant’s claim for compensation under the Accra Industrial Estate (Acquisition of Lands) Ordinance, 1956. The facts are fully set out in the judgment of the court.

COUNSEL

Joe Reindorf (with him B. J. da Rocha) for the appellants.

Sir Edward Asafu-Adjaye (with him Albert Asafu-Adjaye) for the first claimants-respondents. Hayfron-Benjamin (with him Nelson Cofie) for the fifth claimant-respondent.

JUDGMENT OF APALOO J.S.C.

Apaloo J.S.C. delivered the judgment of the court. Some time in 1952, the Government of Ghana were minded of acquiring under the Public Lands Ordinance,1 an area of land situate at Accra and lying north of Ring Road. Accordingly, the Commissioner of Lands, acting under the direction of the Minister of Housing, published a notice of this fact in the Gazette of 12 July 1952. The notice states that the land “is required for the service of the Colony and Ashanti.” It would seem however that the real object of the acquisition was to constitute the area into an industrial estate. The said notice invited persons having any claims or interests in the land to send particulars of these to the Commissioner of Lands who expressed himself as willing to treat for the purchase of the land on behalf of the Governor. Following upon this, a bailiff attached to the Magistrate’s Court, Accra, was entrusted with the notices of acquisition and was instructed to post these up at various places and also to serve certain specified individuals whose interests, in the opinion of the Commissioner of Lands, were likely to be affected by the proposed acquisition. The record shows that such persons were all served by 27 August 1952.

It would seem that in compliance with the request contained in the Gazette notice, twelve persons submitted claims to the Commissioner of Lands. On 21 January 1953, certificate of title was granted in favour of the government. In view of the use to which the land was to be put, it would seem that the government became afflicted with some doubt as to whether the land was validly acquired under the Public Lands Ordinance. To remove this, the government, on 29 September 1956, secured the passage into law of the Accra

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Industrial Estate (Acquisition of Lands) Ordinance, 1956.2 Section 2 of this cured any defect that there might have been in the certificate of title. Section 4 of the Ordinance authorised the Commissioner of Lands to invite persons interested in the land to submit claims for compensation. This was presumably done by the persons who submitted written claims to the Commissioner of Lands pursuant to the Gazette notice of July 1952. These claims reveal serious conflicts as to title. Accordingly, the Commissioner of Lands, by notice, called upon all the claimants to attend before the High Court and prove their respective claims. That is the genesis of the litigation.

The parties appeared before the High Court for the first time on 16 May 1960, and were ordered to file their respective claims within a specified time. All the claimants save the sixth and eleventh complied with the court’s order and duly lodged in their respective claims. For failure to comply with the court’s order, the claims of the sixth and eleventh claimants were struck out. The third claimant abandoned his claim after filing his pleadings and this was also struck out as well as the claim of the ninth claimants who did not prosecute their claim. Meantime, the Commissioner of Lands caused to be made a plan of the area acquired and this was subsequently tendered in evidence (exhibit 2). The fourth claimant alone claimed the whole of the area acquired as the property of the Mantse Ankrah family. The first claimant claimed, as the property of the Oku We family, the northern portion of the land and claims to form boundary on the south with Musuli village. Both the fifth and seventh claimants claim the identical area of land shown edged blue on the plan and commonly but inaccurately referred to in the proceedings as Musuli land. Both the second and tenth claimants put the origin of their titles to grants made to them by the fourth claimant. Their respective areas are also shown as the area claimed by Okomfo Ayealey, the eighth claimant.

Hearing of this case commenced before Prempeh J. (as he then was) on 26 February 1963. Except the second and tenth claimants who relied on grants made to them by the fourth claimant, all the other claimants led evidence in support of their claims. This evidence consisted of (a) tradition and (b) acts of ownership performed on the land by the respective claimants or their predecessors-in-title. The trial concluded on 6 June 1963, and on 21 June, the learned trial judge delivered judgment. In respect of the northern portion of the land acquired and in dispute between the first and fourth claimants, the learned judge preferred the claim of the first claimant and adjudged him the owner as against the fourth claimant. The area

[p.122] of [1966] GLR 119 edged blue around Musuli village was claimed by the fourth claimant as well as the fifth claimant who alleged that it belonged to the Nii Flabboe Cobblah family. The same area of land was also claimed by four individuals who, in their statement of claim, described themselves as claiming “for themselves and on behalf of the inhabitants of Musuli village—the seventh claimants herein.” Thus in respect of this area, there was a three-cornered contest which ended in victory for the Nii Flabboe Cobblah family. The learned judge adjudged that family the owners of that land and held them entitled to the compensation payable in respect of that area. As the area claimed by Messrs. B.B.C., the tenth claimants, fell within this land and as they obtained their title from the Mantse Ankrah and not the Nii Flabboe Cobblah family, the judge held that the tenth claimants also failed to sustain their claim. The fourth claimant was hold to be the owner of the land south of the land adjudged to belong to the Nii Flabboe Cobblah family and shown on the plan edged chocolate. The land claimed by the second claimants, Messrs. Fayed and Nassar fell within this area and as they admittedly obtained their grants from the Mantse Ankrah family, their claim was held good and they were held entitled to a proportionate part of the compensation payable in respect of that land.

Both the fourth and seventh claimants claimed to be aggrieved by the findings of the learned judge and both appealed to this court. The seventh claimants did not perfect their appeal and have accordingly not appeared nor addressed any arguments to us on this appeal. We accordingly make no pronouncement as between them and the fifth claimant whether the judgment given against them was right or not. The fourth claimant however contests the judgment on no less than fourteen grounds. In the view that we take of the case, it is necessary to consider one only of those grounds. The way in which we ought to approach these claims does not seem to us to be in doubt. This is not a case in which a person in possession of land is being sought to be ousted by a person claiming a superior title in which case, the plaintiff is properly said to succeed on the strength of his own case. In this inquiry, as against the government, all the parties claim to be the owners of the land and each must succeed on the strength of his own title. In those cases where an identical area of land is in dispute between two claimants, it would stand to reason, that the person who on the evidence establishes better title ought to succeed. Although the judgment of the learned trial judge is said to be faulty in many respects, the one ground which seems to be the most substantial and which is most deserving of our consideration is ground 12 which reads, “The judgment of the High Court in so far [p.123] of [1966] GLR 119 as it preferred the claims of the first, fifth and twelfth claimants to that of the fourth claimant was against the weight of evidence.” On this ground, counsel for the fourth claimant took us through the evidence and submitted that the learned judge’s conclusion was incapable of support. We do not propose to burden this judgment with a reproduction of the somewhat lengthy argument addressed to us on this ground as we propose to make an independent assessment of the evidence ourselves. As far as the claim of the twelfth claimant is concerned, the learned judge’s finding is not free from difficulty. The area on which her plots lie was adjudged by the learned judge to have been validly alienated to the first claimant many years ago. As she obtained her grant comparatively recently from the Gbese Mantse, her title cannot be said to be valid but the learned judge held that the first claimant acquiesced in the grant and that a member of the family helped in demarcating those plots for the twelfth claimant. He therefore concluded that they cannot dispute her title. As against the first claimant, that reasoning would seem to be good but it is the fourth claimant’s claim that that area was wrongly adjudged to belong to the first claimant. If that contention is made out, then the twelfth claimant will fall with the first claimant as there is no suggestion that the fourth claimant also acquiesced in the grant to her.

It is therefore necessary to examine the evidence led in support of the claims of the first, fourth and fifth claimants. As we have already noted, each of them gave evidence of tradition and acts of ownership which they performed either on the area in dispute or on land in close proximity to it. The fourth claimant alone also tendered documents. As far as the evidence of tradition is concerned, the evidence of the three claimants is strikingly similar, not only as to the source of their titles, but also as to the object of the grants. According to the first claimant, the land claimed by him is a portion of a larger area of land granted to his ancestor for his valour in the Glover War of 1874. This grant was made to him by the Ga, Gbese and Korle stools. He said that land became known as the Avenor land. The fourth claimant said the land in dispute forms part of a larger area of land granted to his ancestor Mantse Ankrah for services rendered by him to the Ga State in the Bame War of 1829. That land came to be known as Awudome land. The grantors were the same. The fifth claimant said the area claimed by her forms part of a larger area of land granted to her father for his bravery in the Katamanso War of 1826. The land was at first known as Odorsey—being land behind the Odor stream, but latterly acquired the name of Musuli land. Her grantors were again the same.

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As evidence of tradition only, we see nothing intrinsically improbable about any of the three stories. It seems to us obvious that some sort of grant must have been made to the ancestors of these parties. The first claimant seems to be entrenched in Avenor and is the undisputed owner of that place. The same may be said of the fourth claimant on the Awudome land. Although the evidence does not make it extremely clear whether the fifth claimant acquired the reputation of being the owner of any particular identifiable land, she seems to have ancestral buildings near Kokomlemle and must have obtained some sort of grant of the land. Accordingly, we see nothing to criticise about the evidence of tradition per se. But it is a matter of some surprise to us that while the learned trial judge accepted the traditional evidence of the first and fifth claimants, he felt some disinclination in accepting a kindred traditional story told by the fourth claimant and seemed sceptical about it. The judge, dealing with the fourth claimant’s evidence of tradition, said, “Even if it were true that the grant to the fourth claimant’s family dated as far back as 1829, on the evidence, it is clear to me that the land granted to his family must be outside that claimed by the first, fifth and seventh claimants.”

In our opinion, there is no justification for the learned judge’s scepticism in so far as the fourth claimant’s tradition is concerned. The traditional story of the first and fifth claimants was supported by oral testimony. In the case of the fourth claimant, the matter was placed beyond bad faith and treacherous memory by the Ga State Council as far back as 12 July 1930. There, the chiefs of the Ga State stated of their own knowledge the tradition of Awudome land as it was known to them. The evidence of tradition led on behalf of the fourth claimant was not different from what the Ga chiefs including the grantors of the parties solemnly pronounced and committed into writing. Had the learned judge not overlooked exhibit 10, he would have felt satisfied that there was no ground for distrusting the evidence led on behalf of the fourth claimant’s family as to how they came by the Awudome land.

If the evidence of the grants and their object lay only in tradition, the same may be said of the evidence of the boundaries. None of the witnesses who testified in support of the boundaries claimed to witness any delimitation of the areas granted to the various claimants. They said they were told the boundaries by their ancestors. Accordingly, the oral evidence led of the boundaries of the various claimants can have no more probative force than the evidence of traditional grant. It follows that the case of the parties, in so far as they rested on traditions, is evenly balanced. As we see it, there is nothing in the evidence which makes one story more probable than the other.

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But it seems obvious to us, that the self-same grantors cannot have granted land to include the area in dispute to three separate grantees. All the parties claimed to have entered and remained in peaceful possession of the land granted to them. As they are now in conflict, it seems plain they cannot all have been in quiet enjoyment of the area in dispute from the date of their respective grants. It therefore becomes necessary to examine with some care the evidence led by the parties which identifies the land acquired as forming portion of the ancestral grants made to them.

In this wise, it seems to us crucial to examine what acts of ownership were exercised on portions of the acquired land before the date of the acquisition. The village of Musuli itself was excluded from the acquisition but as it lies in the middle of the acquired land, acts of ownership exercised on that land would, in our opinion, prove to be of assistance in determining the issue of title raised between these three claimants. As the fourth claimant’s family claim the whole of the acquired land as forming part of their ancestral grant, it seems to us reasonable to consider their evidence of ownership first. In this exercise, it seems to us desirable to consider such acts of ownership as they exercised in the whole area, irrespective of which particular claimants contest their ownership of any specific area. To do otherwise would result in a consideration of their case in fragments and that, in our judgment, would not be right. The most significant acts of ownership exercised on the land by the fourth claimant’s family were the making of grants of portions of the land. In two cases, the grantees were said to have established villages on the land. In other cases, persons to whom the grants were made built houses on the land. The evidence of these grants was substantially uncontradicted. According to the fourth claimant a grant of the land was made to one Amoako Cobblah who founded a village on it in 1910. That village became known as Pe-Oye. That village appears on the plan exhibit SC2 and is almost on the southern tip of the land acquired. The eighth claimant who is a relation of Amoako Cobblah, lived with him, and herself built on part of the village. Her building was in existence when the land was acquired and she was paid compensation by government for its destruction. A little north of the eighth claimant’s land, and almost forming boundary with it, is land granted to the second claimants by the fourth claimant’s family. That grant was said to have been made by a deed of conveyance dated 19 November 1947. Indeed that grant was held proved and validly made by the learned trial judge. Also north of that land, and lying in the area edged blue, the fourth claimant made a grant of the land to B.B.C., the tenth claimants. This was pleaded to have been done by a deed of conveyance dated

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12 August 1952. The evidence shows that a building has been erected on that land.

It would seem that the fourth claimant made yet another grant of land to B.B.C. in Musuli village itself. This does not appear on the plan, presumably because Musuli village itself has been excluded from the acquisition. Darko who is a principal member of the fifth claimant’s family admits that there is a big block building near an Onya tree in Musuli village itself. He said the grant of that land was not made by his family although he claims the land on which the building stands belongs to his family. Pappoe who is one of the seventh claimants and who lives in Musuli village, admitted that the land on which B.B.C. erected their building in the village was granted by the fourth claimant’s family. He even volunteered evidence that the Mantse Ankrah family made an earlier grant of land in the Musuli village to one Nafum. Rather north of Musuli village and close to the northern tip of the land acquired, the fourth claimant’s family testified that they made a grant of land to one Lamptey. The latter founded thereon a village which was named after him, that is, Lampteyman. This grant was said to have been made about 1870. Lampteyman is shown on the plan exhibit SC2 and the fact that a village was established there was not disputed by the first claimant. When he was asked who founded Lampteyman village, the first claimant answered, “I do not know, but I saw his descendants there. His name Lamptey Owusu—and some woman.” Later the first claimant said the land for founding the village was granted by Tetteh Cobblah, the chief of Avenor. In support of this he called, as witness, one Armah Kwaku who lives in Avenor. The latter said the grant for founding Lampteyman village was made by the first claimant’s family. He at first said he was present when the grant was made. In the next breath he said one Tetteh Cobblah told him of the grant. As against this obviously unsatisfactory evidence, the fourth claimant called one Lamiley Owusu Lamptey who said she lived at Lampteyman village and was born there. She said her grandfather Lamptey Okuka founded Lampteyman village and obtained a grant for this purpose from the Mantse Ankrah family. She was obviously one of the descendants to whom the first claimant referred to in his evidence. Her testimony seems to us to have been most ineffectively challenged. It was suggested to her that the land for founding the village was granted by Tetteh Cobblah of Avenor. She said she was not so told.

The learned trial judge made no finding as to which of the parties made the grant and we are therefore obliged to make a finding ourselves. In our opinion, the evidence of Lamiley Owusu Lamptey is to be preferred. She in fact lives in the village and was born in Lampteyman. She is therefore more likely to have an accurate

[p.127] of [1966] GLR 119 memory of the tradition of how the land for the village came to be acquired than either the first claimant or Kwaku who have never lived there. We accordingly find that Lampteyman village was founded by the late Lamptey who obtained a grant for this purpose from the fourth claimant’s family. Thus the Mantse Ankrah family have shown that they made grants not only at the southern and northern extremities of the land acquired, but in the very centre of it. The evidence shows that neither of the grantees who founded villages or built houses were evicted or in any way disturbed by either the first or fifth claimants who set up title adverse to the Ankrah family. It follows that the fourth claimant has shown acts of ownership which identify the acquired land as forming part of the land ancestrally granted to his family. The case of Bonne III v. Hammond3 decides that possession of grantees is possession of the grantor for the purposes of the Public Lands Ordinance. Section 16 of the State Property and Contracts Act, 1960,4 raises a presumption of ownership in favour of the person in possession, unless evidence to the contrary is shown by those who allege the contrary. It follows that the possession of these various grantees is the possession of the Ankrah family and raises a statutory presumption of ownership in their favour.

Unlike the fourth claimant’s family, neither the first nor the fifth claimants gave evidence of any worthwhile acts of ownership which they exercised on any particular portion of the acquired land. Although grants of two plots of land just north of Musuli village were made to the twelfth claimant, these grants were made by the Gbese stool which stool itself at one time set up an independent claim of its own. In the course of his evidence, the first claimant said, “Outside the area of the acquisition, the Ghana Police use a portion of my land as a target range.” He also asserted that long ago, his family granted a portion of their family land for the making of a cemetery. Again this cemetery is, on his own showing, outside the acquired area. We have already held, contrary to his assertion, that Lampteyman village was founded by a grantee of the Mantse Ankrah family.

The evidence of acts of ownership led by the fifth claimant was no more cogent than that of the first claimant. Although they claimed that their ancestors at one time collected tolls from the inhabitants of Musuli village, no one was produced to confirm that fact. The preponderance of the evidence is against this. They led no evidence of any grants of the Musuli land made by them but, on the contrary, were constrained to admit that such grants of the land in respect [p.128] of [1966] GLR 119 of which evidence was forthcoming, were made by the fourth claimant. Thus the evidence of the first and fifth claimants, unlike that of the fourth claimant, did not transcend the realm of tradition. In addition to the evidence of tradition and grants of the land made by them, the fourth claimant also produced evidence which shows that on at least four occasions, the Ankrah family successfully prosecuted actions against persons who either disputed their title or trespassed onto portions of Awudome land which includes the land in dispute. The first of these actions was taken against Mantse Amponsah of Otublohum resulting in the authoritative pronouncement by the State Council of the tradition involving the land. The Awudome land was then adjudged to belong to the fourth claimant’s family. This was in 1930 (exhibit 10). In June 1931, the Supreme Court pronounced a similar decision in favour of the fourth claimant against the self-same Mantse Amponsah (exhibit 11). In that litigation, a plan was made of the whole Awudome land and this plan, which was tendered in evidence as exhibit 13, shows the land in dispute to be part of the Awudome land. In 1947, one Captan trespassed on a portion of this land relying on a grant made to him by one of the members of the fourth claimant’s family. The fourth claimant’s family, acting by their then head, successfully maintained an action against the said Captan and recovered damages against him for trespass (exhibits 14 and 15). Some time in 1959, there was litigation; between the Onamroko Adain family and some members of the Asere quarter of Accra. In making a plan of this area, the members of the Asere quarter who were co-defendants in that case, trespassed on to the northern portion of the Awudome land and included a portion of it in a plan made by them. The fourth claimant’s family therefore joined that action and recovered damages against them for trespass. The judgment in that case as well as the plan which shows the northern boundary of their land was erroneously rejected in evidence by the learned trial judge. We admitted those documents in the course of hearing this appeal, as we were satisfied that they were relevant, and of evidential value in the consideration and evaluation of the fourth claimant’s case (exhibits CIF 1 and 2). We are in agreement with the learned judge inasmuch as he held that these documents did not create estoppel by record against the first and fifth claimants. Nobody suggested that they did. But unlike the learned judge, we do not think that these judgments are valueless. In our opinion, they are pregnant acts of ownership exercised on portions of the land in dispute ante litem motam and are entitled to be considered as part of the fourth claimant’s case. We also note that while the first

[p.129] of [1966] GLR 119 and fifth claimants relied, for the truth of their boundaries, on tradition and nothing else, the fourth claimant’s family asserted successfully the entire boundaries of their land in no less than four judicial proceedings in at least two of which these boundaries were set out in a plan.

We have already expressed as our view that inasmuch the claimants relied on traditional evidence and no more, the evidence of all three parties was on an even keel. But the fourth claimant’s family alone produced cogent evidence which transcended tradition and showed concrete acts of ownership linking their ancestral Awudome land with definite portions of the land in dispute. We have already referred to the undisputed grants made by them and the quiet possession of their grantees and to the successful actions brought by them on the Awudome land of which the land in dispute has been shown to form part. There is also, as we have observed, a statutory presumption of ownership in their favour. In these circumstances, far from being evenly balanced, the scales are heavily weighted in favour of the fourth claimant’s family and unless there are compelling reasons, their claim ought to be preferred to that of either the first or fifth claimants.

That brings us to a consideration of the reasons why the much weaker claims of the first and fifth claimants were preferred to that of the fourth claimant. As we are able to judge, the learned trial judge did not consider the claims of the first and fifth claimants on their own merits. He seemed to have considered them both vis-a-vis the claim of the fourth claimant and having made a few inconsequential criticisms of the latter’s claim, proceeded to hold the claims of the first and fifth claimants proved. In other words, the learned judge considered the first and fifth claimants entitled to succeed on the weakness (as he fancied it) of the fourth claimant’s, case. In our opinion, he was in error in that. As we see it, the learned judge merely considered the first claimant’s case established by an acceptance of the oral evidence led on his behalf. He did not apparently seek to be satisfied as to why Lampteyman village came to be established on land which he held to belong to the first claimant by reason of a grant made by the fourth claimant’s family nor did the absence of evidence of any acts of ownership on the land by the first claimant strike him as peculiar. He did not also seem to have noticed the fact that when the first claimant filed his claim, he averred very distinctly that the western boundary of his Avenor land was the railway land—a fact which the fourth claimant significantly asserted. It did not also appear to have struck the learned judge as odd that while the first claimant averred that he had been in peaceful enjoyment of the land in dispute since about 1874, he should have made an elementary mistake about [p.130] of [1966] GLR 119 a description of his boundaries and should have sought to rectify this only after evidence was given. The learned trial judge also seemed to have put great weight on the oral testimony of the Gbese Mantse, quite oblivious of the fact that that Mantse himself sought to claim the land as his stool land. In our opinion, the learned judge’s consideration of the first claimant’s case was infected with some sort of superficiality. We find nothing in the evidence or in the brilliant submission of their counsel which satisfy us that any grounds exist for preferring the first claimant’s case to the fourth claimant’s.

As we said, the learned judge made a few criticisms of the fourth claimant’s case, but in our opinion, these criticisms are unsound. For example, he referred to the evidence of Mr. Telfer the representative of the Lands Department and concluded from it that as the fourth claimant’s family did not claim compensation for the Railway Acquisition of 1908 they cannot have had land north of an imaginary line which he drew. But if that is a valid criticism of the fourth claimant’s case, it is no less so of the first claimant’s, to whom according to Telfer’s evidence no compensation was paid for the 1908 Railway Acquisition. But the fallacy in the learned judge’s reasoning is shown by the fact that he felt able to adjudge the fourth claimant’s family the owners of the area edged chocolate, the eastern boundary of which is the railway line although there is no evidence that they claimed or were paid compensation in respect of that area. The learned judge also thought that the evidence of the representative of the Onamroko Adain family as to their northern boundary with the fourth claimant’s was destructive of the fourth claimant’s case inasmuch as he testified that it formed a boundary with the fourth claimant on the west and with the first claimant on the south. In our opinion, that argument was erroneous and the error was in part of the judge’s own making because he wrongly rejected a plan which was made for the purpose of the judgment in exhibit CIF, and which plan clearly shows the respective boundaries of the land of the Onamroko Adain and the fourth claimant’s family. We admitted that plan in evidence during the hearing of this appeal and that plan knocked the bottom out of the learned judge’s argument. In considering the evidence of the fourth claimant in relation to that of the first claimant, the learned judge thought it right to criticise the former’s case on the ground that although the fourth claimant’s family claimed the whole land as their property, yet they did not deny that the fifth claimant and her grantees or licensees occupied what he termed the Musuli land for upwards of 100 years. That argument is without foundation and proceeded on an erroneous assumption that the fourth claimant admitted that there was anything like Musuli land or that has ever been occupied by the fifth [p.131] of [1966] GLR 119 claimant or her grantees. On the contrary; both by their pleading and evidence, they averred that Musuli village was founded by a Grunshie man with their leave and licence and that the said Musuli permitted others to squat with him by their express permission. As we said, we cannot find any grounds even in the learned judge’s reasoning which justify the preference of the first claimant’s case to that of the fourth claimant.

How does the matter stand as regards the fifth claimant? As against her, the learned judge discredited the fourth claimant’s case on grounds which seem to us wholly untenable. For example, the learned judge attached no value to the undisputed fact that a large plot of land in the area claimed and adjudged to belong to the fifth claimant was granted by the fourth claimant’s family to the tenth claimants and was occupied by them without opposition. That grant was pleaded to have been made on 12 August 1952, that being a date prior to the service of the notice of acquisition on the fourth claimant’s family and was, in the circumstances, an exercise of ownership ante litem motam. The date of the grant was expressly admitted and rendered its proof unnecessary. Yet the judge discredited the value of that evidence on the wholly untenable ground that the document evidencing the grant was not shown to him in court. The judge, in considering the fifth claimant’s case, made a few other criticisms of the fourth claimant’s case which seem to us to be of no moment and which, without disrespect to him, we do not consider merit any further consideration by us.

But before parting with the fifth claimant’s case, there are two matters on which we feel we should express an opinion. The first relates to the evidence of a man by the name of Fiabro Kofi since deceased which detracted from the truth of the fifth claimant’s case. The learned judge had no opportunity of considering that evidence because he shut it out as inadmissible. We were satisfied that the evidence, being an admission against the proprietary interest of a person since deceased, was admissible and that the learned judge erred in ruling against its admissibility. We therefore admitted it in evidence in the course of the hearing of this appeal (exhibit SC 1). The other matter is the view which the learned judge took of a plea of estoppel by conduct which the fourth claimant raised against the fifth claimant. The fourth claimant gave evidence that one Fiabro Kofi was at one time the headman of Musuli village where he lived. He was said to have died between 1936-38. Although the fifth claimant denied all knowledge of him, we are entirely convinced that such a person in fact lived at Musuli village. The evidence also carried to our

[p.132] of [1966] GLR 119 minds a high degree of probability that he was at one time the headman of Musuli village. The seventh claimants, who are admittedly some of the persons who actually live in Musuli village, know him. Pappoe said in evidence “Fiabro Kofi lived there with his wife. He followed the woman to Musuli.” When it was put to him that about 31 years ago Fiabro Kofi was the headman of Musuli village, he answered as follows: “We never made him a headman but if there is any paper showing him as headman we do not know anything about it.” Pappoe said Musuli’s own children are all dead but some of his descendants still live at Musuli. One of those descendants mentioned by name is Charles Kwame. The latter is one of four persons who made a claim in this acquisition relying on the title of their ancestors. We think Fiabro Kofi must have been a man of some importance in the village to entitle his descendants to stake a claim to any title to Musuli land. The view which we have expressed about Fiabro Kofi’s status in Musuli is, we think, fortified by what we deem must have been the knowledge of the Lands Department. The notice of acquisition in this case was addressed to Fiabro Kofi who was described as headman of Musuli village. Because he was dead at the time, service was effected on Pappoe in his stead. If the Lands Department were at no time made aware that Fiabro Kofi was headman of the Musuli village their conduct would have been unintelligible. Accordingly, we hold that Fiabro Kofi was at some period of his life a headman of Musuli village. That being so, he was in a position to have reliable knowledge of which family owned the land on which Musuli village was established.

In the case which the fourth claimant’s family brought against Mantse Amponsah in 1931 and which culminated in the consent judgment exhibit 12, Fiabro Kofi gave evidence for the fourth claimant. He said he had been living at Musuli since he returned from the Prempeh War and said positively that Musuli land belonged to Mantse Ankrah. That was clearly an admission against interest and in the very nature of things is likely to be true. We do not hold that this evidence is binding on the fifth claimant, but we think it is evidence which strongly supports the fourth claimant and contradicts the fifth claimant’s bare assertion of title to Musuli village.

As we said, the fourth claimant also raised against the fifth claimant a plea of estoppel by conduct. The facts grounding this plea are that one M. D. Adjaben Ankrah alias Kwaku Nyame Ankrah was in or about 1947 the head of the the fifth claimant’s family. In fact the present fifth claimant is his immediate successor-in-office. He was at the same time the head of the fourth claimant’s family. When, as we said, Captan trespassed onto a portion of the Awudome land, the said Kwaku Nyame Ankrah in his capacity as head of the fourth

[p.133] of [1966] GLR 119 claimant’s family sued him for trespass. In this suit, he claimed the whole Awudome land as part of the fourth claimant’s family property. The land at present in dispute between the fourth and fifth claimants forms part of that land. He recovered judgment for the fourth claimant’s family. It was therefore submitted that the fifth claimant was estopped by conduct from disputing the fourth claimant’s title as the fifth claimant stood by when that action was being fought. The learned trial judge seems to have felt the force of that submission and would have acceded to that argument if he had not overlooked the evidence of the fifth claimant’s witness Kotey. The learned judge disposed of that contention adversely to the fourth claimant on the ground that there was no evidence that the fifth claimant’s family had full knowledge of that claim and the existence of that litigation.

The contrary has been demonstrated to us by counsel for the fourth claimant who referred to the evidence of the fifth claimant’s principal witness Kotey. The latter is, on his own showing, one of the principal members of the fifth claimant’s family. Kotey said quite plainly that Adjaben Ankrah at one time “attempted to take a portion of Musuli land to add to land belonging to the Mantse Ankrah family.” He said, to quote again from his evidence, “The elders of the Flabboe Cobblah family protested, but he said that he had already attached that land to the Mantse Ankrah family land, and he said that after the litigation on the paternal side, he would release to the maternal family, the due portion belonging to them.” When he was asked which members of the family protested, he said the fifth claimant, one Ata Soko and himself.

The fifth claimant’s family must have sensed the danger of this evidence. They therefore sought leave and recalled the witness after he completed his evidence. He was then asked who were the principal members of the family at the time. He then gave names of persons other than himself and the fifth claimant and strange as it seems, said, these principal members of the family “did not know about these acts of Kwaku Nyame Ankrah.”

It is plain to us that the principal members of the fifth claimant’s family knew of the said litigation and that the evidence that they were unaware of it is a belated and disingenuous attempt to wriggle the family out of a difficult position. In our judgment, what the family ought to have done in those circumstances was to have destooled Nyame Ankrah and appoint someone else to join that action and assert their title to that portion of the land which they claimed belong to them, provided of course Nyame Ankrah’s claim was known to them to be false. Kotey testified that Ankrah said he would return the fifth claimant’s family’s portion to them after the

[p.134] of [1966] GLR 119 litigation and implied that the family withheld action on the faith of this. This does not sound to us a reasonable thing to do but as this is a plausible story, we think the conduct of the fifth claimant’s family in not joining that action in the special circumstances of this case, is not unequivocal and we decline to hold them estopped by it. Nevertheless, we cannot underrate the value of that evidence and the conduct of both Ankrah and the Flabboe Cobblah family in relation to this litigation.

The evidence which Ankrah gave in the 1931 litigation (exhibit 18) shows that he was very knowledgeable about Awudome land and its extent. He seem also to have been a man of some probity. He would not have been trusted to head two families if he were not. The fifth claimant herself said Ankrah knew all about the Flaboe Cobblah family history and a fortiori, their lands too. She said the family had no cause to remove him because, as the fifth claimant herself put it “He was good and fit for the family.” That being so, we cannot bring ourselves to believe that he would have claimed Musuli village as the property of the Mantse Ankrah family if this were not the truth. Kotey said elders of the family protested to Ankrah when they learnt of the extent of his claim in the litigation to which we referred. If that be true, it must have been because the family justly indignant at his breach of trust. In those circumstances, the family would, in our opinion, have shown their indignation in some concrete action. That litigation was determine in the Land Court in October 1948, and Ankrah lived until 1950 when he died. According to Kotey, the family did not request him to implement his promise and release the Flabboe Cobblah family land to them (whatever that means). According to the fifth claimant herself, Ankrah remained an esteemed head of the Flabboe Cobblah family until he died. It seems to us obvious therefore that no such protest could have been made to him. The inference which is apparent to common sense by reason of the inaction of the Flabboe Cobblah family, is that they must have known that the claim which Ankrah made to Musuli village was the truth. Their conduct is incapable of explanation on any other rational hypothesis.

We do not need to go into any further details. Far from there being any reasons for preferring the fifth claimant’s “traditional story” case to the fourth claimant’s solid case, we think an examination of that case discloses its hollowness. It follows that we find ourselves in a position to concur in the contention of counsel for the fourth claimant that the judgment of the High Court, in so far as it preferred the claims of the first and fifth claimants to that of the fourth claimant, was against the weight of evidence. We have, we think, shown it to be manifestly so. In our opinion, the learned judge’s [p.135] of [1966] GLR 119 conclusion was based alike upon (a) inadequate consideration of the fourth claimant’s case, (b) erroneous rejection of admissible evidence and (c) faulty reasoning. That judgment ought clearly not to be allowed to stand.

That being the view we take, it would be pointless to consider the other equally cogent grounds on which the judgment of the court below was assailed. We accordingly refrain from doing so but feel it right to express to counsel our great indebtedness to them for the assistance we received from all sides. We therefore allow the appeal and set aside that part of the judgment which declares the first claimant to be the owner in possession of the land edged green in the plan prepared for these proceedings and marked exhibit 2. In like manner, we set aside that part of the judgment which declares the fifth claimant the in possession of the land edged blue on the said plan. In both cases, we set aside the findings which adjuged both the first and fifth claimants entitled to compensation in respect of any portion of the land acquired. As the twelfth claimant obtained her title from a person other than that the fourth claimant’s family and clearly after the initiation of the acquisition proceedings, we hold that she is not entitled to compensation for the two plots which she claimed and which plots are shown on the plan exhibit 2.

In lieu of the findings of the High Court, we substitute a finding that the fourth claimant’s family are the owners in possession of the whole of the area acquired for the Accra Industrial Estate save and except the area shown on the plan as granted by them to Messrs. B.B.C., the tenth claimants, and Messrs. Fayad and Nassar, the second claimants.

We hold that the fourth claimants are entitled to the compensation payable for the whole of that land save the areas claimed by and occupied by the tenth and second claimants. In respect of those areas, we hold the tenth and second claimants entitled to compensation.

We also rescind and set aside the orders for costs made by the High Court and order that any costs paid pursuant to the said orders be refunded. In lieu of those orders, we order that the fourth claimant do recover from the first claimant 200 guineas counsel’s costs and taxed costs. As against the fifth claimant, we order that the fourth claimant do recover 150 guineas counsel’s costs and taxed costs. We also order that the fourth claimant do recover from the twelfth claimant 25 guineas counsel’s costs and taxed costs. The fourth claimant is also entitled to his costs on this appeal and we order that such costs shall be borne by the first and fifth claimants in equal shares.

DECISION Appeal allowed

S. K. T.