KISSEH & ORS. v. ADABLA & ORS. [1961] GLR 440

DIVISION: IN THE HIGH COURT, HO

DATE: 29TH JUNE, 1961

BEFORE: PREMPEH, J.

CASES REFERRED TO

George A. Sappor v. J.D. Amartey (1913) 2 Ren. 787.

NATURE OF PROCEEDINGS

ACTION for an order that land jointly occupied by the parties herein be partitioned between them.

COUNSEL

G. Koranteng-Addow for the plaintiffs.

F. T. C. Amorin for the defendants.

JUDGMENT OF PREMPEH J.

This suit was instituted in the Tongu Local Court B and was by order dated the 20th April, 1956 transferred to the Land Court, Accra, and subsequently transferred to this court.

The plaintiffs sued as the duly appointed and recognised heads of the Djavier tribe of Tefle. [His lordship then read the judgment of Coussey, J. set out in the headnote supra and continued:] The plaintiffs claim an order for partition of the land so that the plaintiffs may have as their exclusive [p.442] of [1961] GLR 440 property the area on which they have been firmly established and the defendants to have that area on which they have been firmly established as found by the court.

It is to be noted that the parties to this suit are the same as in the second of the consolidated suits in exhibit D tendered herein, to which I shall later refer. In their statement of claim, the plaintiffs reproduced the extract of the judgment of Coussey, J. of 1950 contained in the writ of summons, [reproduced in the headnote supra] and they averred that in spite of that judgment the effect of which settled the plaintiffs firmly on their Tamlago portion of the land, and the defendants on the eastern portion thereof, the defendants had been constantly disturbing the plaintiffs in their occupation and use of their said Tamlago land, and gave instances of such interferences in paragraph 4 thereof.

The plaintiffs averred further that the conduct of the defendants and their people have made it impossible for the two tribes to live peacefully and harmoniously as joint owners, and that was the reason for the action for an order for partitioning the land, and for perpetual injunction. By their statement of defence, the defendants admitted as correct the capacity in which the plaintiffs brought this action, and also the extract of the judgment of the Land Court, Accra, reproduced in the writ of summons and repeated in the statement of claim, but they denied having by themselves or their agents or servants or people, interfered with the plaintiffs in the enjoyment of their Tamlago land. The defendants denied that they were guilty of any conduct which entitled the plaintiffs to a partition of the land and they pleaded further that the plaintiffs’ claim was untenable according to native custom. Upon these pleadings, three main issues are raised for determination.

They are:

(a) whether the defendants have been constantly disturbing the plaintiffs in their lawful and quiet enjoyment of the Tamlago land;

(b) whether or not the plaintiffs’ claim is maintainable according to native custom;

(c) whether or not the plaintiffs are entitled to an order for partition of the land, and also for an order of perpetual injunction. The second plaintiff on behalf of himself and the first plaintiff led evidence and tendered, by consent of defence counsel, the plan made in 1919 in the suit of Boni Kwashie v. Djisa and Sopenu which was admitted as exhibit M in the Land Court in the suit of 1950 referred to in the writ of summons. This was admitted and marked exhibit A. A certified true copy of the Land Court’s said judgment delivered on the 22nd November, 1950 was also admitted in evidence and marked exhibit D. The first plaintiff in his evidence gave a graphic account of several incidents of entry by the defendants and/or their servants and agents and people into the Tamlago land, and of their committing unlawful and wrongful acts on the said land. [His lordship then reviewed in detail the [p.443] of [1961] GLR 440 evidence led by the first plaintiff and his witnesses yes in this regard and concluded:] These witnesses impressed me as witnesses of truth and I accept their evidence.

The plaintiffs called Fia Dugbaza IV, the paramount chief of Tefle whose evidence is to the effect that in his area native custom leans towards partitioning of land among people who own it jointly or in common or even as between or among brothers, if that course should bring peace and harmony as between or among the discontented parties. According to his evidence, the occupant of the Sukpe stool is customarily and traditionally his nephew, and it was he who enstooled the present chief of Sukpe who is now a paramount chief, but he knows of no custom either in Tefle or in Sukpe which forbids a partitioning of land if that course, when taken, should bring peace among the people concerned. I must say that this witness has also impressed me very much on this controversial point.

The first defendant on behalf of himself and the other defendant gave evidence bluntly denying any of the acts referred to by the plaintiffs and the witnesses of fact as to those acts, and said that since the judgment of the Land Court in 1950, they had not in any way disturbed the plaintiffs and/or their licensees and agents on their Tamlago land. He contended that by virtue of the native custom of Sukpe which was entirely different from the native custom at Tefle it was not permissible to split clans and also contrary to their native custom to partition land belonging to a clan.

The defendants and their first witness the paramount chief of Sukpo were cross-examined in order that they should bring out those factors which according to them make it uncustomary for land to be partitioned, but quite apart from being vague and evasive, they were unable to satisfy me of thenexistence of any native custom at Sukpe which prohibited the partitioning of land in that town or within the area of its jurisdiction.

The defendants’ first witness Togbe Zoga the paramount chief of Sukpe gave the following answersnto questions put by court:

“Q Are you saying that the partitioning of land between relatives is uncustomary because it has never happened?

A. Yes.

Q. Has an occasion arisen when an attempt was made to partition land in Sukpe which could not be effected because it was uncustomary to do so?

A. No.”

If I am right in my understanding of what the defendants mean by custom, it would seem on their exposition, that custom means something or an incident that has never occurred or happened or been done by people of a particular town or community over the years; but I am unable to accept that as the true enunciation of the principle appertaining to native custom. In my view, native custom is something done over the years and acknowledged by the people of a particular town or locality as something they must adopt or recognise, or on the other hand something that is a [p.444] of [1961] GLR 440 taboo which they must refrain from adopting or recognising, which has been carried out and acknowledged and adopted and recognised by the people of such town or locality over the years, and crystallised into something concrete.

The defendants asserted that native custom at Sukpe frowned upon partitioning of land there, and held to it that consequently the plaintiffs’ claim was untenable. The onus was upon them to show that that custom existed, but I am satisfied that they have completely failed to discharge that onus as I can find nothing in their evidence to show that any peculiar custom exists in Sukpe which prohibits, or is a taboo to, the partitioning of land between joint owners or owners in common or even as between or among relatives. I have clearly expressed the view that I accept the evidence of the plaintiffs and their witnesses as to the encroachment by defendants on Tamlago land, and I am satisfied that the defendants by themselves and their people have been interfering with the enjoyment by the plaintiffs of their Tamlago land. I am now to decide the question whether or not I should grant the order for the partitioning of the said land. In the case of George A. Sappor v. J. D. Amartey,[1] Barrett Lennard, J. made the following observations.:

The remedy of a tenant in common or a joint tenant who cannot make an arrangement with his co-tenants is to claim partition, and the existence, as in this case, of a mortgage over the whole of the lands is no bar to such a proceeding. It has been suggested that partition by the Court is unknown in this country, that the head of the plaintiff’s family oppresses all the junior members of it, and that he and the mortgagee are minded to divide all the lands between them. Now it seems to me that the majority of a family can depose a head whom they dislike, and that under ordinary circumstances no Court ought to interfere with this domestic discipline. Assuming, however, that the head of a family can carry a majority of it with him, and his intentions are entirely selfish and unjust, I have no doubt whatever that, upon a proper writ being drawn and a proper case made, a Court of justice can afford relief. It can certainly decree redemption of a mortgage and, subject to any peculiarity of the customary local law unknown to me, I think that partition is also a possible form of relief “. I have already expressed the view that there is no evidence of any peculiar native custom existing in Sukpe such as could prevent this court from granting the order for partitioning of the land, and if on the evidence I see it fit to grant the order, I do feel fortified by the observations of the Full Court judgment to which I have just referred. As to the making of that order, I do not find myself faced with any difficulty whatsoever, because in my view, that part of the judgment exhibit D, on which the writ is founded makes such a clear finding that I find myself in no difficulty at all in exercising my discretion to grant the relief sought.

The judgment clearly shows that by a rough division observed between the two tribes, the plaintiffs, the Djaviers are firmly established on their Tamlago land. It then goes on to say that while the Djaviers have [p.445] of [1961] GLR 440 confined themselves between the Angor creek, on the west of the Mafa, Ahuno and Jabetta creeks, the Herviers, that is the defendants, have occupied the eastern banks of these three creeks, eastwards and north-wards to the Volta River.

The judgment exhibit D goes on to show that the court was satisfied that the seven villages near the Jabetta creek, marked on the plan exhibit M were rightly occupied with that creek and are in the control of the Djaviers, the plaintiffs herein. At page 9 the last eight lines of the first paragraph of the judgment marked exhibit D reads as follows: “In 1916 it appears that the Hervier tribe as the Elder had the power to stick the creek that is to say to prohibit the fishing of the creeks and to decide when the closed season had ended. This would not apply to the creeks Mafa, Ahuno and Jabetta which have been declared to be the property of the Djaviers nor to the Creeks which have been granted to strangers.” These features are all clearly shown on the plan marked exhibit A herein, and I have no doubt in my mind that if any one of the parties had asked for an order for partitioning the land in that case, the court would not have hesitated in making the said order. One last point which is worth observing is that the defendants in their evidence agree with exhibit D that the plaintiffs are established on their Tamlago land, and that they the defendants are well settled on their Akpaflito land, and in paragraph 3 of the statement of defence they again recognised the plaintiff’s settlement on their Tamlago land. Upon a review of the whole evidence, I am satisfied that since the judgment of the Land Court dated the 22nd November, 1950, the defendants by themselves and their servants and agents and people have been constantly entering upon the plaintiffs’ portion of Tamlago land and have been unlawfully and wrongfully interfering with their rights and those of their licensees on the land, that they have assaulted and molested them and deprived them of their properties. I am satisfied further that no evidence of any peculiar custom had been shown to exist at Sukpe by reason of which an order for partitioning of this land cannot be made. I am further satisfied, consequent upon my finding of the aggressive attitude of the defendants’ people towards the plaintiffs’ people who are now joint owners or owners in common of the land, that if an order is not made to give each of the parties exclusive right to their possession of the land whereby they can maintain rights of trespass and other remedies at law, there can never be peace and tranquillity on that land, and that serious consequences can be expected.

There will therefore be judgment for the plaintiffs on their claim for an order that the land jointly owned by themselves and the defendants herein as shown in exhibit A shall be partitioned. It is ordered that the dividing line between the plaintiffs’ and the defendants’ land as shown by exhibit A shall be from a point at the south-eastern part of the land at the confluence of Jabetta creek and the Mamatorvi creek, thence northwards through the land along the eastern banks of the Jabetta, Ahuno and Mafa creeks (but allowing about five yards from the banks) then along in a [p.446] of [1961] GLR 440 straight line up to the Sutivi Marsh. The western side of this dividing line that is to say the portion between the Angor creek and this dividing line shall be the exclusive property of the plaintiffs, and the portion on the eastern part of this dividing line that is to say the portion between this dividing line and the Volta River shall be the exclusive property of the defendants. I order that pillars shall be set up along this dividing line at the cost of both parties, but if any one party fails or refuses to co-operate in engaging a surveyor to carry out this work, the other party shall be entitled to recover from the defaulting party the half share due by him for the erection of those pillars. In respect of the portion which I have declared to be the exclusive property of the plaintiffs, I grant to them their prayer for an order of Perpetual injunction against the defendants who are themselves and their servants and agents and people and licensees hereby restrained from in any way interfering or dealing with or encroaching upon the plaintiffs’ portion of the land.

DECISION

Judgment for plaintiffs.