HIGH COURT, ACCRA
DATE: 7TH MAY, 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Nii Abossey Okai II v. Nii Ayikai II, Land Court, Accra, September 27, 1945, unreported;
(1946) 12 W.A.C.A. 31; (1950) 12 W.A.C.A. 37, P.C.
(2) England v, Palmer (1955) 14 W.A.C.A. 659
(3) Crayem and Anor. v. Consolidated African Selection Trust Ltd. (1949) 12 W.A.C.A. 443
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(4) Norquaye-Tetteh v. Malm and Anor. (Consolidated) [1959] G.L.R. 368
(5) Ayim v. Mensah, Div. Ct., October 30, 1911, unreported
(6) Quarm v. Yankah II and Anor. (1930) 1 W.A.C.A. 80
(7) Oblee v. Armah and Anor. (1958) 3 W.A.L.R. 484
(8) Total Oil Products Ltd. v. Obeng and Anor. [1962] 1 G.L.R. 228
(9) Danquah v. Wuta-Ofei and Anor. (1956) 2 W.A.L.R. 185
(10) Ohimen v. Adjei and Anor. (1957) 2 W.A.L.R. 275
NATURE OF PROCEEDINGS
ACTION for declaration of title to land, and for ancillary reliefs.
The facts are more fully set out in the judgment.
COUNSEL
P.F. O. Anteson for R. Bannerman for the plaintiff.
K.Ohene-Ampofo for the defendant.
JUDGMENT OF OLLENNU J.
In this suit the plaintiff claims an order for recovery of possession, injunction, and damages for trespass; the said claims are in respect of two pieces or parcels of land separated by a proposed road, which are fully described in paragraphs (i) and (ii) of the endorsement on his writ of summons, and delineated on a plan tendered in evidence as exhibit E. The said pieces of land are situate at Abose Okai, and form portion of Abose Okai, otherwise known as Opete Kpakpo, lands. The said Abose Okai or Opete Kpakpo lands were in a suit Nii Ayikai II v. Nii Abossey Okai II declared the property of the Akumadjey stool by a judgment of the Land Court1(1) affirmed by a judgment of the West African Court of Appeal,2(2) and upheld by the Privy Council.3(3) The Privy Council judgment is exhibit J in this suit.
By two deeds of conveyance, exhibits G and F, the first dated the 22nd February, 1947, and registered as No. 1167/1947, the second dated the 24th February, 1947, and registered as No. 1168/1947, the Akumadjey stool conveyed the said pieces of land separately to one Edward John Bruce, P.W.4 and one John Cofie Parry, P.W.5 respectively. By a deed of conveyance, exhibit B, dated the 4th October, 1947, registered as No. 23/1948, the said Edward John Bruce as vendor jointly with Nii Ayikai II, Akumadjey Mantse, as confirming party, conveyed the one piece of land to the plaintiff, while the said John Cofie Parry as vendor and the said Nii Ayikai II as confirming party, by deed exhibit C, also dated the 4th December, 1947, and registered as No. 24/1948, jointly conveyed the other parcel of land to the plaintiff.
The plaintiff fenced in each of the two pieces of land with concrete pillars and barbed wire; he also erected an iron sheet structure on the western piece of the land and placed a watchman in charge. The plaintiff instituted this action because the defendant entered upon a portion of the eastern block of land, put pillars thereon and sold a portion of it to one Kwamivi who commenced erecting a building thereon.
The defendant too claims ownership of the land by virtue of a conveyance thereof made to him by one Madam Naa Korkoi Abose, D.W. 1, under a deed of conveyance, exhibit 1, dated the 3rd September, 1960. He has counterclaimed for declaration of his title to the land so granted and conveyed to him which land is fully described in paragraph 7 of his statement of defence and counterclaim.
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For the plaintiff it was submitted that his action being in trespass, he can succeed against the whole world upon proof of possession; the case of England v. Palmer4(4) was cited in support. That submission is a well established proposition of law. 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.
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.
Again it was submitted on behalf of the plaintiff that his title takes priority over that of the defendant by virtue of section 21 of the Land Registry Ordinance5(5) by reason of the fact that his documents have been registered while the document relied upon by the defendant is unregistered. In reply to that submission, counsel for the defendant cited to the court Crayem and Anor. v. Consolidated African Selection Trust, Ltd.6(6) where it was held, inter alia, that the language of the Land Registry Ordinance cannot be construed as giving absolute priority to an instrument by reason only of its registration, and further that occupation or possession is constructive notice of the right of another person to a purchaser, mortgagor, or lessee of that land. Thus, if it is shown that the defendant or the
person through whom he claims was in possession of the land at the date of the registration of the plaintiff’s title deeds, the mere fact of the registration cannot give the plaintiff priority.
Again, the priority which registration gives as provided by section 21 of the Ordinance is with respect to the effect of instruments affecting land, it does not affect interests in land otherwise created. The relevant portions of the said section 21 are as follows: “21 (1) Every instrument executed… shall, so far as regards any land affected thereby, take effect as against other instruments affecting the same land from the date of its registration. . .” “Instrument” is defined in section 2 of the Ordinance as follows: “‘Instrument’ means any writing affecting land situate in Ghana, including a judge’s certificate.” Section 24 provides that:” Registration shall not cure any defect in any instrument registered, or confer upon it any effect or validity which it would not otherwise have had”. Therefore if a document is void of effect in law, the fact that it is registered will not make it valid and will not
operate to give it priority over any other instrument affecting the same land whether or not that instrument is registered.
The first question of fact to be determined is: has the plaintiff proved effective possession of the land in respect of which he has sued? Giving evidence about the fence the plaintiff made round the land, P.W.1 the plaintiff’s son and his attorney said: “The fence my father put round the
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land has now been broken down; I don’t know the exact date on which it was broken”. In re-examination he said: “It was just last year that I noticed that the fence had been broken. Only part of the fence is broken.”
The court inspected the land at the request of counsel for the plaintiff. That inspection was a revelation; it clarified many points which before then were obscure. For example, the plaintiff and his watchman P.W.8 had created the impression on the court that it was only a small portion of the fence which had been broken and that the shed which the watchman occupied on the land was so situated that he could have effective control over the whole land. The inspection revealed that that is not the case. The following is part of the evidence given by P.W. 1 after the inspection with respect to the fence: “I pointed out to the court the south-eastern block of the land in dispute in this case. I pointed out to the court tall pillars and barbed wire with which I fenced it, in the same way as I fenced the one to the north-west. But that fence round it has been completely broken down. They appear to have been broken down quite a long time ago. Not only had the pillars been broken down but most of the pillars have been
broken to pieces and the barbed wire cut in pieces.”
In answer to his counsel he said: “It is about 2 years ago that the pillars were broken down. No, I have not had any more trouble since they were broken down.”
The court saw the said fence; nothing could be clearer than the fact that the destruction of it was purposeful and devastating, and that the destruction took place a long time ago as the plaintiff himself said when he gave his evidence of the inspection. It is very strange that the plaintiff ‘s watchman should not see this massive operation and that the plaintiff should take no steps to rebuild the fence.
Of course, since he did not attempt to re-erect the fence he would have no more trouble.
I am satisfied from the whole evidence and from what I saw at the inspection that the plaintiff has never had effective possession of the land, particularly the south-western block of the land. Therefore he cannot succeed in his action for trespass unless he can prove that as between him and the defendant he is the person with a better right to immediate possession.
But even if the plaintiff proved effective possession the next question is, as between him and the defendant and the defendant’s grantor, who was first in possession? As the plaintiff derived title from P.W.4 Bruce and P.W.5 Cofie Parry, if it could be shown that those two vendors of his were in possession before the defendant and his vendor D.W.1, that prior possession by his vendors would be prior possession by him.
Was either P.W.4 John Bruce, or P.W.5 Cofie Parry, in physical possession of the land? When cross-examined about the features of the land at the date the grant was made to him by the Akumadjey stool P.W. 4 John Bruce said “No, there were no mango trees, cashew or oil palm trees on the plot at the time it was given to me”. And P.W.5 Cofie Parry also said: “Yes there were so many mangoes, but no cashew or oil palm trees on the land”. This is what the plaintiff’s attorney P.W.1 said on that issue: “There were many cashew and mango trees on the land at the time we first went on the land, and oil palm too. No, I don’t know who planted them, nor do I know who used to harvest the fruits thereof. They were grown up tree bearing fruits when we first went on the land.”
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The court itself saw these trees, so many mango trees and so many cashew trees, nearly as many cashew trees as mango trees, all over the land, and a few oil palm trees too. In his account of the inspection P.W. 1 said inter alia: “I pointed out some old mango and cashew trees. Those are the mango trees and the cashew trees which I said were there when I first went to the land”. The only conclusion which can be drawn from this positive evidence of the existence of these trees on the land as compared with the evidence of John Bruce and Cofie Parry is that John Bruce never went to the land at any time or else he would have seen that large number of mango and cashew trees and that Cofie Parry too never went on it at any time, or else he would have seen the cashew trees and the oil
palm trees. The impression these witnesses created is that the grants to them by the stool upon exhibits F and G were mere paper transactions, not accompanied by physical demarcation of the land, and placing them in possession as required by customary law upon such grant.
Talking about the condition of the land as at 1947, P.W.5, Cofie Parry said in re-examination: “Yes, any amount of mango trees grow wild in the area. When I went on the land in 1947 there was nothing to show that the specific plot had been marked out by anybody, no pillars or anything of the sort.” And in answer to the court he said: “No, I do not know the difference between a cultivated tree and a forest or wild tree. No mango tree which sprung of itself in the area or in any part of the Accra plains will survive owing to the annual fires.”
Following upon that answer the court put the following question to the witness:
Q. Since according to you no mango tree which grew of itself can survive in the area or elsewhere on the Accra plains by reason of the annual fires, will it not be correct then that the only conditions under which such mango tree can survive are either that they sprang up in a cultivated area, or that having sprung up of itself in a bush somebody cleared the weeds round about it now and again to save it from perishing from the fires?”
To that question the witness said: “I cannot answer that question.” It goes without saying that it is only by the industry of man, attending to and caring for those fruit trees from time to time, that they can develop into big healthy trees, such as the fruit trees on the land in dispute are.
By customary law the existence on the land of cultivated trees like mango, cashew, citrus and other fruit trees, trees which by nature require the care, attention and industry of human beings to enable them to survive, grow and develop, is notice to all the world that that land is in the possession of somebody, and that that somebody is the person who looks after the said tree and harvest the fruits thereof: see Norquaye-Tetteh v. Malm and Anor. (Consolidated).7(7) There the court said inter alia:
“. . . if a mango tree happens to grow on land it would be no one but the possessor of the land who would display the industry necessary to keep it alive. For an owner of land would not normally permit a stranger, with no interest in his land, to come upon it year in year out, to cultivate a mango tree which had sprouted up on the land by the act of nature; nor, when the tree is grown up, would the owner of the land permit the stranger to harvest the fruits of that tree of economic importance.
In my opinion, therefore, harvesting the fruits of mango trees is very cogent evidence of the interest which the man who so harvests the fruits has in the land on which they grow.”
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In this case there is positive evidence that the economic trees on the land did not grow by chance, that they were planted and cultivated, and that they were planted by D.W. 1, Naa Korkoi Abose. Still on the question of the plaintiff’s possession, the next question is: who has been harvesting the fruits of the economic trees on the land? P.W. 1 said that his watchman used to harvest the mango, and the watchman P.W.8 said in cross-examination: “People use to come to pluck the mango but I use to drive them away when I see them”. In re-examination he said: “Yes, I use to pluck the mango myself too, I eat some and take some to my master.”
The evidence “eat some and take some to my master” left the impression that it is a small quantity of mango picked for domestic use, not for economic purposes, i.e. for sale. But the trees on the land are so many and so well developed that their yield must be considerable, a quantity which will by far exceed what would be required by two people or two families; what happened to the rest? The evidence that people used to come and pluck and the witness used to drive them away when he saw them showed persistence of people, other than the plaintiff, his agents or servants, to go on the land to harvest the fruits of the economic trees thereon; and that is evidence of the continuance of the possession of those already in occupation at the date of the entry of the plaintiff and of his vendors before him upon the land. The evidence is that the person who cultivated the economic trees and who
has been harvesting their fruits all the time is D.W. 1. Therefore D.W. 1 was in possession at the date of the plaintiff ‘s entry and has continued in such possession ever since, by herself her agents and assigns. That being the case, the plaintiff who came into possession in those circumstances can only succeed in trespass against the defendant, a grantee of D.W. 1 upon proof that he has a title to the land superior to that of D.W. 1.
What title then has the plaintiff proved? He derives his title from the Akumadjey stool. In this respect his counsel referred the court to exhibit J the judgment of the Privy Council which confirmed the two concurrent judgments of the Land Court and of the West African Court of Appeal for declaration of the title of the stool to the Abose Okai or Opete Kpakpo lands. Counsel therefore submitted that title to the land is vested in the plaintiff by virtue of the conveyance of the land made to him by the stool as evidenced by exhibits B, C, F, and G. Now the right of a stool to deal with stool land and make grants of it is limited to vacant portions of the stool land, i.e. the portions not already in occupation of a subject or grantee. 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;8(8)Quarm v. Yankah II and Anor.9(9) Oblee v. Armah and Anor;10(10) Norquaye-Tetteh v. Malm and Anor.,11(11) and Total Oil Products Ltd. v. Obeng and Anor.12(12) 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
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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.
We shall now apply this principle to the facts of this case. P.W.8 the plaintiff’s watchman said that when he first went on the land there was no development anywhere near the area, it was all bush; that was in 1948. But there were the economic trees which served as constructive notice of possession of that agricultural land by some persons among whom is D.W. 1, a subject of the Akumadjey stool; she is a daughter of the Nii Abose Okai I, who was the caretaker of the Akumadjey stool and also the caretaker of the Abose Okai or Opete Kpakpo lands: see exhibit J. As a subject of the stool, D.W. 1 is entitled as of right to occupy a portion of the stool land either by actual or by implied grant. She said that the land was granted to her over 30 years ago by her father who was at that time the caretaker of the stool lands, and that the father later gave her a document exhibit L which evidenced the said grant.
We shall revert to that document later when we come to deal with the defendant’s counterclaim. D.W. 1 said she farmed the land, planted economic trees some of which are still in existence on the land, and that she has been in active possession ever since by herself and her agents and assigns. That her story of grant and possession is nothing recent, is not a fiction and is not something fabricated for the purposes of this or any other case, is borne out, among other things, by the following facts: her document exhibit L was stamped by the Commissioner of Stamps as far back as the 16th December, 1929, which shows that that document was in existence in 1929. The area had not been laid out at the time of the grant to her so the plan of it shown in the original deed is just one block rectangular area coloured red as recited in exhibit L and shown on the photostat copy of the original document as attached to exhibit 2. Therefore the only means by which the land granted to her could be identified is by going on the land and seeing her physical acts of occupation and possession. In January 1941, the Government acquired lands in the area for re-housing. She put in a claim in respect of the land she then occupied; she made her said claim by letter, exhibit 2, dated the 23rd June, 1941. As the land she claimed could not be identified by the plan which then was in exhibit L, i.e. the red-coloured block, it appears that she had a proper plan made of it in 1940 on a layout plan which had then been made of the area, that is the plan which now appears in exhibit L. After she had submitted her claim to the Lands Department, the Commissioner of Lands caused an officer of his department to go with her to the land and she pointed out the same to the officer. In consequence of that visit the plan exhibit 3 was made. That plan shows the whole area of land which D.W.1 occupied as shown in the 1940 plan. It also shows a portion of it edged pink which the government wanted to retain in the acquisition and a portion which it intended to release to D.W. 1. At the inspection of the land by the court, D.W.1 pointed out two L-shaped comer pillars which she said marked the south-east and the south-west corners of her land. Those two pillars bear eloquent testimony of old age.
D.W. 1 said that the Government later released the whole land to her. It is shown in the letter exhibit M2, addressed to her by the Commissioner of Lands, that the acquisition was made under the Accra Town (Lands) Ordinance, 1940.13(13) Therefore upon the government divesting itself of the
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land, the same would, by virtue of section 2 (2) of that Ordinance, vest in the person who was in possession immediately prior to the acquisition: see Danquah v. Wuta-Ofei.14(14) That person in whom the land should so vest is D.W. 1.
All these facts coupled with the other evidence already referred to prove that a subject of the Akumadjey stool, D.W. 1 was in lawful possession of that piece of stool land at the date when the stool purported to grant the same to John Bruce and Cofie Parry, and at the date when the said John Bruce and the said Cofie Parry each jointly with the stool purported to convey the land to the plaintiff.
That being the position, the said conveyances made to the plaintiff are null and void ab initio, and conferred no title in the land upon the plaintiff which he can litigate or which should entitle him to lawful possession of any portion of the land. The plaintiff, therefore, has failed to prove that as between him and the defendant, a grantee of D.W.1, a subject of the stool, the better right to occupy the land is vested in him.
We now pass on to the defendant’s counterclaim. The defendant derives title from D.W. 1 who conveyed the land to him by deed exhibit, 1 dated the 3rd September, 1960.
It was submitted on behalf of the plaintiff that the defendant’s said deed is void, firstly because at the date of its execution there was an injunction order in existence restraining the defendant’s vendor D.W.1 from dealing with the land, and secondly that the deed exhibit L upon which D.W.1 relied to convey that land to the defendant is itself null and void and passed no title in the land to D.W. 1. Exhibit K is the order of induction. The operative words there are: “restrained perpetually from interfering with the plaintiff’s legal and customary possession and control of the land subject-matter of the suit, commonly known and called ‘Obetey Kpakpo lands’ and from any
further alienation of any portion of the said land and/or from doing any act or thing in or about the lands to the prejudice of the Akumadjey stool etc.”
Now, as earlier observed, the legal and customary possession and control which a stool has over stool lands is limited to those portions of the stool lands which are vacant and unoccupied, and not to land in the occupation of a subject. The law is that a subject in possession of land can successfully maintain an action against the stool for dealing with the land in his possession without his, the subject’s, consent: see Ohimen v. Adjei and Anor.15(15) The land, the subject-matter of this suit was not a vacant portion of the stool land in 1960. Therefore D.W. 1 committed no contempt of court when she alienated to the defendant a property which belonged to her individually.
But even if the land was vacant stool land, all that a sale of it by D.W. 1 could amount to is contempt of court; it will not affect the validity or otherwise of the sale.
As to the deed exhibit L it was submitted that it purported to convey stool land, but none of the attesting witnesses to its execution was an elder of the stool. The draftsmanship of the said deed exhibit L may not be all that could be desired as a work of legal art; but that apart, all that that document purports to be is a written record or evidence of the fact
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that D.W. 1, a subject of the stool, has been granted a portion of the stool land by grant express or implied. D.W. 1 as a subject, need not make a formal application to the stool for grant of a portion of the agricultural land of the stool. She is entitled to occupy a portion of it as of right, and is presumed to have been granted any extent of the vacant agricultural land which she is able, by her industry, to reduce into her possession; and if she so desired the stool could then give her a document on that area.
The subject to whom such a document is given does not derive his title to the land from that document; he derives his title from the customary grant made to him expressly or impliedly.
As to the submission that none of the attesting witnesses to exhibit L was an elder of the stool, I would say that it is most unfortunate that two respectable persons like Nii Ayikai II, Mantse of
Akumadjey, and Mr. Cofie Parry, should allow themselves to be badly discredited by one of the most important documentary pieces of evidence upon which the Akumadjey stool relies; I mean exhibit J the judgment of the Privy Council. Each of those gentlemen swore positively that Nathaniel Tagoe, the first attesting witness to exhibit L, never was an elder to the Akumadjey stool. In fairness to Nii Ayikai it should be observed that when the question was put to him whether Nathaniel Tagoe ever was an elder of his stool, he hesitated a great deal, and it was after a long pause that he replied: “No, he has never been an elder of my stool; he was at loggerheads with me”. The judgment exhibit J shows that the original first defendant in that suit was the said Nathaniel Tagoe. He died during the pendency of the case and Nii Abossey Okai II was substituted for him. It also shows that one of the
most important points Nii Ayikai made to defeat Nathaniel Tagoe and his successors in that case is that the said Nathaniel Tagoe and other members of his family, the Adawude family, were elders of the Akumadjey stool, and that when they joined in the execution of a deed in respect of the Abose Okai lands, they did so not as elders of their said family, the Naa Adawude family, but as elders of the Akumadjey stool, and that it was as such elders of the stool that Nathaniel Tagoe had to deal with the Abose Okai lands, and not otherwise. It appears that to establish that fact that Nathaniel Tagoe was an elder of his stool Nii Ayikai put in certain documents. Thus at page 3 of exhibit J, the Privy Council, in the course of their judgment said:16(16)
“On 8th October 1929, Abossey Okai as the ‘caretaker and representative’ of the Akumadjey Stool, and also as the ‘Head of the Stool family’ conveyed a plot of land to a purchaser. On the 30th May, 1936, Nii Akrong (who was then head of the Naa Adawede family), and the late Nathaniel Tagoe ‘for themselves and on behalf of the Elders and people of the Stool of Akumadjey’ executed a lease of another plot.”
In those circumstances, the stool cannot now be heard to say that Nathaniel Tagoe has never been an elder of the stool. Thus, even if the title of D.W.1 is derived from exhibit L, which in my opinion it is not, it is clearly proved that in 1929, Nii Abose Okai as the accredited representative of the Akumadjey stool, executed the deed exhibit L attested by at least one elder of the stool. Therefore even though there is no recital in the deed that Nii Abose Okai had the consent and concurrence of his elders, the execution was in fact made with the concurrence of the elders of the stool. That being so the deed at its very worst is only voidable not void, and the onus is upon the stool, if it challenges its validity timeously, to take action, to annul it, i. e. to prove that in fact the elders did
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not consent and concur in it. That they have not done and it is now too late for them to allege that the deed is void.
The court was referred to exhibit H, the public notice given by Nii Ayikai II, Akumadjey Mantse, in respect of the Abose Okai or Opete Kpakpo lands, and particularly to the last paragraph thereof which said: “And Notice is hereby further given that no rights or interest in the said land will be recognisable by the undersigned except those which have been presented to him under this notice and confirmed and allowed by himself and his councillors.”
It was further submitted that since D.W. 1 failed to comply with that notice she has no interest in the land. All that need be said about that notice is that it did not affect rights lawfully acquired, even by a stranger, e.g. grants lawfully made by Nii Abose Okai who by exhibit J is declared the caretaker of the lands for the stool, acting with the consent and concurrence of the elders of the stool. And certainly it did not affect the title of a subject in possession of portion of the stool lands in exercise of his or her inherent right as such subject.
The defendant has proved that the title to the land he claims was vested in his vendor D.W. 1.
Therefore he the defendant acquired good title to that land by the conveyance which D.W.1 made of that land to him. The defendant’s counterclaim must therefore succeed.
The plaintiff’s claim is dismissed and judgment entered thereon for the defendant. There will be judgment on the counterclaim for the defendant against the plaintiff for a declaration of his title to the land. The defendant will have his costs on the claim and the counterclaim fixed at 100 guineas inclusive.
DECISION
Action dismissed.
Judgment for defendant on the counterclaim.
