POKU v. AKYEREKO AND OTHERS [1963] 2 GLR 285

DIVISION: IN THE SUPREME COURT

DATE: 8TH JULY, 1963

BEFORE: ADUMUA-BOSSMAN, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a decision of Simpson J. delivered at the High Court, Kumasi, (unreported) affirming a judgment of the Asantehene’s Court which upheld a decision of the Native Court, Teppa, given in favour of the defendant in an action by the plaintiff for a declaration of title to and an order for possession of land. The facts are fully set out in the judgment of Akufo-Addo J.S.C.

COUNSEL

J. Arthur for the appellant.

Hayfron-Benjamin, Snr., for the respondent.

JUDGMENT OF AKUFO-ADDO J.S.C.

The plaintiff and the first defendant are both natives of Teppa in Ashanti, and the land the subject-matter of this appeal is a building plot situate in the town of Teppa. The plaintiff brought his action in the then Native Court of Teppa claiming a declaration of title to the said building plot of land and an order for possession. The plaintiff’s case was that sometime in 1954 the land in dispute was granted to him by the Odikro of Teppa for building purposes and for the said grant he gave the Odikro the sum of four pounds (£4) and a bottle of gin by way of customary acknowledgement of the grant. He then at the request of the Odikro paid him a further sum of ten shillings which the Odikro said was to be paid to the local council. The Odikro in his evidence said he paid this money to the third defendant, a revenue collector for the local council, on whom the Odikro directed the plaintiff to call for a receipt. According to the plaintiff he later, at the demand of the third defendant, paid a further sum of one pound (£1) to the third defendant in respect of what was described as “sanitation fee.” The third defendant subsequently refused to give the plaintiff a receipt for the moneys paid. The Odikro in his evidence said that when he enquired of the third defendant the reason for his apparent refusal to issue out a receipt for the sum paid by the plaintiff the third defendant told him that he had allocated the plot in question to the first defendant and he could not therefore issue any receipt to the plaintiff. Meanwhile the Odikro and the chairman of the local council had appended their signatures to a plan

[p.287] of [1963] 2 GLR 285 of the building the plaintiff proposed to construct. On this plan the words “approved by” followed by the signature of the chairman of the council, and the words “granted by” written against a delineation of the plot of land in question followed by the Odikro’s signature.

It appears that, by reason of the power of management of stool lands vested in the local council by section 72 (1) of the Local Government Ordinance,1 some arrangement existed between the Odikro and the local council for the disposal of stool lands, particularly building lands in the town of Teppa. There is however a conflict of evidence as to the precise working details of this arrangement. According to the Odikro if any person wanted land on which to build that person saw him (the Odikro) and his elders, and when a grant was made the grantee gave the usual “customary drink” in the form of four pounds (£4) in cash and a bottle of drink, generally gin, and the sum of ten shillings was collected from the grantee for the local council. On the other hand the evidence of the representative of the local council was that the area in which the plot of land in question was situate was laid out in plots by the local council who by reason of their powers under the Ordinance referred to above were the only authority that could make valid grants of land in that area, and they charged a fee of ten shillings for every grant made. The local council obviously interpreted the aforesaid provision in the Ordinance to confer on it the rights of an owner entitled to grant the land and denied to the Odikro any such rights. Gaisie, described as health overseer in charge of the building plots, said in his evidence under cross-examination as follows: “Q. Who is responsible for granting of plots?

A. Teppa Local Council is responsible.

Q. Has Nana Teppa Odikro any fee to charge if somebody wanted a plot?

A. I do not know this.

Q. Is the disputed plot the one which plaintiff said he wanted?

A. Yes.

Q. Was that plot given to somebody when the plaintiff said he wanted it?

A. Nobody had then acquired it.

Q. Would the plaintiff have got it if he had approached the Council that time?

A. Yes.”

The representative of the local council also stated in evidence under examination by the court as follows: “Q. Has Nana Teppa Odikro not given power to collect his share as the land owner of any fee for allocation of plots before it comes to you finally?

A. No. The council has its own employees.

Q. Has this chief no right to allocate any plot to anybody?

A. No.”

[p.288] of [1963] 2 GLR 285

The local council therefore did not recognise the grant made by the Odikro to the plaintiff about which it must have known, and granted the land to the first defendant who entered upon the land on which the plaintiff had then deposited some sand in preparation for his building operations, and that was the reason for the plaintiff’s action.

The trial native court gave judgment in favour of the defendants on the ground that:

“by sections 72 (1) and 74 (1) of the Local Government Ordinance, Cap. 64 (1961 Rev.) the council is solely charged with the responsibility of all stool lands and collection of tributes. If in fact this Ordinance is still in operation, I find the plaintiff liable to the suit. The plot in dispute is the property of the first defendant.” [His lordship then read the provisions of section 72 of the Local Government Ordinance as set out in the headnote and continued:]

The trial native court made no findings of fact and only purported to determine the suit on its interpretation of the provisions contained in the section of the Ordinance referred to above regarding the right of alienation of stool lands.

In the course of the proceedings the trial native court rejected the building plan which the plaintiff sought to tender in evidence on the ground that, “The plan has no bearing to this case as it does not talk about the plan. It is therefore rejected in evidence.” It is impossible to determine the meaning of the statement by the native court, but the plan was admitted in evidence by the High Court, Kumasi, to which a second appeal had gone.

At the hearing of the appeal in the then Asantehene’s Court A2 to which the plaintiff had appealed, that court for reasons that do not appear in the record heard the evidence of Gaisie, the health overseer, who under examination by the court said:

“It is the responsibility of the Teppa Local Council to allocate plots to prospective builders, it was the council that caused the layout to be made and all plots have been numbered by the council’s authority. The council is aware of any existing vacant plot. Having collected the ten shillings from ,the first defendant, and receipt issued to him I directed him to go and see the Teppa Odikro and pay his drink to him. The first defendant came and told me that the chief had refused him on the ground that he had allocated the plot to someone else. The council has authority to allocate plots to applicants by reason of the fact that it was they that were responsible for the layout and the cost thereof. The chief has already declared his interest to the council. This system of allocation which obtains at Teppa has no reference to farming land.” It is to be observed that the evidence given by Gaisie and the representative in the trial court appeared to have been modified by Gaisie in his evidence at the Asantehene’s Court to the extent of according to the Odikro the right to a “drink” from a person to whom a grant of land had been made by the council. [p.289] of [1963] 2 GLR 285

What the effect was of a “drink” given to the Odikro on the title to the land granted by the council was not stated. Gaisie was a witness called by the plaintiff at the trial, and the Asantehene’s Court, as did the trial court, took the view that his evidence did not support the plaintiff’s case and held therefore that the trial court had rightly given judgment against the plaintiff.

The Asantehene’s Court stated its conclusions as follows: “The appeal court will not be justified therefore to upset the findings of fact of the lower court which had the fair opportunity of seeing the demeanour and testing the credibility of the witness that appeared before it.”

On the second appeal to the High Court, Kumasi, Simpson J. after rightly admitting the plan in evidence held that the signature of the chairman of the local council amounted to a concurrence by the council in the grant to the plaintiff in accordance with the provisions of section 75 (1) of the Local Government Ordinance2 to which, in his view, the attention of the trial native court was not called, but held further that since that concurrence was given on the 21st October, 1954, and the grant to the first defendant was made by the council on the 1st August, 1954, the grant to the first defendant took precedence over the grant to the plaintiff and he dismissed the appeal on the further ground that since the trial court found as a fact that the plot of land in dispute had been duly granted to the first defendant the admission of the plan by the trial court would not have made any difference to its decision. The learned judge added that therehad been two concurrent findings of fact in the courts below in favour of the defendants and he would therefore not interfere with the judgment. The learned judge in holding that there had been two concurrent findings of fact fell into the same error as the Asantehene’s Court when that court said that it could not upset the findings of fact made by the trial court, for neither the trial court nor the Asantehene’s Court made any findings of fact. The issue as the trial court saw it was one for the determination as a matter of law of the validity of the two grants, the one by the Odikro and the other by the council, and as I have already indicated the trial court held upon the interpretation it placed on section 72 of the Local Government Ordinance that the grant by the council was the valid grant. There was apparently no dispute about the fact of the council having made a grant to the first defendant nor of the Odikro having made a grant to the plaintiff, and the judgment of the trial court did not proceed on the finding that such a grant was duly made. It proceeded on the basis of the undisputed existence of the two grants.

The interpretation placed on section 72 of the Local Government Ordinance by the trial native court was wrong for the power of management vested in the council did not import, whatever else it might, the power to exercise the rights of ownership over stool lands. Indeed subsection (2) of that section specifically states that the ownership of stool

[p.290] of [1963] 2 GLR 285 lands is not affected by the power of management vested in the council. The right of alienation of land is the fundamental right of the owner thereof and unless that right is specifically and lawfully delegated no alienation by any other person can be valid. There is no evidence of a delegation of that right to the council which maintained that its right to alienate derived from the terms of section 72 of the Local Government Ordinance and not from any agreement between it and the stool. It is to be observed that the health overseer in his evidence before the Asantehene’s Court excluded farming lands from the exercise of the council’s right to alienate. But if building lands, why not farming lands? Obviously the claim by the council to the right to alienate is also based on the fact that the layout of the area concerned was made by the council, but that fact is an incident of management and not of ownership. The only form of agreement that can properly be spelt out of the evidence was one that provided for the payment of the sum of ten shillings to the council by every person to whom the Odikro made a grant. The council may of course impose rates and other forms of charges upon occupants of stool lands.

It follows that the only valid grant of stool land is one made by the stool, subject of course in an appropriate case to the provisions of section 75 (1) of the Local Government Ordinance to which Simpson J. made reference in his judgment. [His lordship here read the provisions of section 75 (1) of the Local Government Ordinance as set out in the headnote and continued:] In this case however the plaintiff obtained the grant from the stool in the manner in which all stool subjects entitled to the free use of stool land acquired land from the stool, and the offering to the stool of the “customary drink” of four pounds (£4) in cash and a bottle of drink was not a valuable consideration such as would bring the grant within the operation of the section. It follows therefore that the grant to the plaintiff did not require the concurrence of the council for its validity.

Simpson J. was therefore wrong in holding that the chairman’s concurrence appearing on the plan being subsequent to the grant made to the first defendant by the council was invalid as against the council’s grant. The learned judge was wrong for the further reason that the grant made by the council to the first defendant was wholly void and the question of priorities between two grants did not therefore arise, so that even if Simpson J. was right in his view that the grant required the concurrence of the council the concurrence signified by the chairman of the plan would only make stronger the already strong case of the plaintiff. As there was no dispute that the Odikro did make a grant of the land in dispute to the plaintiff, or rather as the evidence of the grant is incontrovertible, the three courts below were all wrong in the views they expressed on the law, and the plaintiff’s appeal must succeed.

I would therefore allow the appeal, set aside the judgments of the Native Court of Teppa, the Asantehene’s Court and the High Court,

[p.291] of [1963] 2 GLR 285

Kumasi, together with the respective orders as to costs and enter judgment for the plaintiff declaring him the owner of the land in dispute (subject to the usual incidents in customary law) and granting him an order for possession of the said land.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I agree.

JUDGMENT OF MILLS-ODOI J.S.C.

I also agree.

DECISION

Judgment entered for the plaintiff.

Judgments of trial native court,

Asantehene’s Court A2, and the

High Court set aside.

K.T.