ATTAH v. LAGOS [1960] GLR 42

DIVISION: IN THE HIGH COURT (LANDS DIVISION) CAPE

COAST

DATE: 18TH MARCH, 1960

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) Ababio II v. Nsemfoo 12 W.A.C.A. 127.

(2) Asenso v. Nkyidwuo 1 W.A.L.R. 243.

(3) Kwasi and Others v. Larbi 13 W.A.C.A. 76.

NATURE OF PROCEEDINGS

APPEAL from a decision of the Native Court “B” of the Asin Local Council in favour of the defendant in an action relating to the ownership of land and enforcement of an arbitration award.

COUNSEL

Short for plaintiff.

Defendant in person. [p.43] of [1960] GLR 42

JUDGMENT OF ADUMUA-BOSSMAN J.

In this appeal form a decision of the Native Court “B” of the Asin Local Council, the judgment appealed from does not seem to me to be capable of support. That judgment did not take any account of the admitted fact that when the area in dispute was alleged to have been cultivated originally by Kojo Alata, defendant’s father (now deceased), that original cultivation was not in right or title of the Andoe Stool at all, but of a woman cal led Adwua Brenua of Anomaboe. It follows, therefore, that so far as the Andoe Stool is concerned, it never gave any right of occupation or possession of that disputed area, or the adjoining or any other area, to the defendant’s late father. When, therefore, as the result of litigation between the Andoe Stool and Kojo Alata’s grantor, a decision was given against her, and a declaration of ownership made in favour of the Andoe Stool, it is clear that Kojo Alata and his successors had no inherent right as against the Andoe Stool to the possession or the usufruct of the area cultivated by him, except such as might be obtained by agreement with the Stool. At that time, that is, when title to the land was declared to be in the Andoe Stool, if Kojo Alata was then in de facto occupation and possession of the whole area cultivated by him, the Andoe Stool could not dispossess him of the areas which he was then occupying without first giving him an opportunity to attorn tenant to the Stool, and to agree to occupy on such customary terms as the Stool might impose. See Ababio II v. Nsemfoo (12 W.A.C.A. 127). The admitted position, however, was that (because Kojo Alata either was then dead, or died shortly after the litigation) the areas which he had cultivated prior to the litigation were left abandoned for a considerable length of time. The defendant’s own evidence was as follows:—

“I arrived from Nigeria about six years ago and heard from authentic source that my father owned cocoa farm on a portion of Adontihene’s land at Akyisan. Recently about five months ago (5 months) I approached the Adontihene of Andoe with a request for return of my late father’s cocoa farms on his land.” According to the evidence of the Adontihene Efilfa X, first witness for the plaintiff and representative of the Andoe Stool, the litigation with Adwua Brenua resulting in the decision in favour of his Stool took place about twenty years ago, that is, in about 1939. The disputed land remained abandoned for a long period of ten years after the conclusion of the litigation. In these circumstances, authority is clear that upon such long abandonment, whatever rights of occupation for farming existed became extinguished and the land forfeited to the Stool, which could then make a valid grant to a new tenant. So in Asenso v. Nkyidwuo (1 W.A.L.R. at p.246), Coussey P. said as follows:—

“The defendant’s refusal to enter into any form of agreement and his failure to take any care whatever of the farm or clearance he had made on the said land for over ten years constitute sufficient evidence of abandonment, entitling the Omanhene to reallocate the area to the plaintiff . . . It was not abandonment by express declaration it is true, but it was abandonment by conduct over a number of years … This is supported by Sarbah, who says at p.56 of [p.44] of [1960] GLR 42 his Fanti Customary Laws 1897 edition: — ‘But where a person in possession of the public land abandons it or his family have abandoned it for more than ten years at least the village headman and elders can allow another person to occupy the same’.”

Accordingly, the Adontihene granted the land to the plaintiff in February, 1949.

That the defendant himself appreciated the position that any rights which he might desire to exercise in respect of the old farms of his late father had to be negotiated for anew is indicated by his own evidence and that part of the inspection report which reads as follows (see record, p. 24):— “Questioned why he did not take possession of the farm and applied to the Adontihene, he said the area was sometime in possession of one Adwua Brenua of Anomabo, and later came to the Adontihene after judgment was obtained by the Andoe Stool against Adwua Brenua; and for that reason he had to apply for possession through the said Stool.”

If therefore, during the interval between recovery of judgment for the land by the Andoe Stool and the time of defendant’s application for restoration of his late father’s farms to him, the Andoe Stool (which then had every right to the areas cultivated by the defendant’s father without the permission of the Stool) had lawfully given a portion away to some other tenant of the Stool, the Stool would not have any right to restore to defendant his late father’s farms if they included the portion which the Stool had itself validly granted to the plaintiff before defendant applied. All that the Stool could give away was what remained undisposed of by the Stool at the date of defendant’s application. The short point therefore is that the plaintiff got a valid grant at a time when the land with the farm on it belonged to the Stool, and any restoration to the defendant could not legally include the portion validly given to the plaintiff, but only that portion (if any) which remained undealt with by the Stool at the time of the application. The trial court’s judgment, which did not take account of that aspect of the matter, cannot be supported. There remains another aspect of the matter, namely the admission that both parties submitted the dispute to the arbitration of the Adontihene, who decided against the defendant. The trial court appears to have taken the view that the Adontihene’s decision savoured somewhat of perversity, for they said : —

“This Court is of the opinion that Adontihene Kweku Efilfa gave his arbitrary decision on racial discrimination.”

The facts of the case, however, do not warrant such a conclusion; as I have already indicated, the Adontihene’s decision was strictly in accordance with customary law, and quite fair and equitable.

Accordingly the parties are bound by his award in favour of the plaintiff: see Kwasi and Others v. Larbi (13 W.A.C.A. 76.)

In the result, therefore, the appeal is allowed and the judgment of the trial court is set aside. In place thereof judgment is entered for the plaintiff, awarding him the amount of £12 15s. 6d. claimed by him under [p.45] of [1960] GLR 42 the arbitration award in Suit No. 153/59.

Judgment is also entered in his favour dismissing the defendant’s claim for damages for trespass against him in Suit No. 163/59.

DECISION

Appeal allowed.