ATTRAM v. ARYEE [1965] GLR 341
10 May 1965 · OLLENNU JSC · ≈ 7 min read
[1965] SLR (SC) 11Other citation styles and permanent link
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DIVISION: SUPREME COURT
DATE: 10 MAY 1965
BEFORE: OLLENNU, ACOLATSE AND APALOO JJ.S.C.
CASES REFERRED TO
(1) Akue v. Ababio IV (1927) P.C. ‘74-’28, 99. (2) Mercantile Investment & General Trust Co. v. River Plate Trust, Loan & Agency Co. [1894] 1 Ch. 578; 63 L.J.Ch. 366; 70 L.T. 131; 42 W.R. 365; 10 T.L.R. 186; 8 R. 791. Abbey v. Ollennu (1954) 14 W.A.C.A. 567.
NATURE OF PROCEEDINGS APPEAL from a judgment of the High Court, Accra, upholding the plaintiff’s claim for a declaration of title, an injunction and damages for trespass. The facts are sufficiently set out in the judgment of the court.
COUNSEL
Asafu-Adjaye, Sen. for the appellant. No appearance by or on behalf of the respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. The land in dispute in this case is situate at North-West Korle Gonno, Accra, and is part of the lands known as James Town lands. James Town is divided into three main sections, generally called quarters: these are Sempe, Alata, Akumaje; each of these sections or quarters has a stool, and any particular portion of the James Town lands occupied exclusively or predominantly by subjects of a particular stool, or which is shown to be under the control or administration of any of those three stools, is spoken of as land of that stool. There has, since the nineteen-twenties, been a series of litigation either between the Sempe stool and the Alata stool or between their grantees in respect of portions of the James Town lands. The most important of these was in connection with claims for compensation for land at Weija acquired for the Accra Water Works. That litigation terminated with an opinion of the Judicial Committee of the Privy Council delivered on 16 June 1927 in Akue v. Ababio IV1 a copy of
[p.343] of [1965] GLR 341
which was admitted at the instance of the defendant, the appellant herein, and marked exhibit 4; that opinion laid down the principle for determining conflicting claims by the three stools of James Town, Sempe, Alata and Akumaje, or by their grantees to any particular portion of the James Town lands. That principle will be referred to presently. The plaintiff derives title to the land from the Sempe stool under and by virtue of a deed of gift dated 7 August 1952, and claims that she has had undisturbed possession of the same since then save that some time in June 1960, and again some time in June 1961, the defendant trespassed upon the land and removed her, the plaintiff’s, corner pillars there from. She then sued the defendant for a declaration of title, damages for trespass and injunction. The defendant does not deny entry upon the land, but denies removing the plaintiff’s pillars therefrom. He contends that the area in dispute is a portion of land granted to his ancestors by the Alata stool, and that his entry thereon was in exercise of his right as a member and grantee of his family, the Okortsoshishi family. The issue which the trial court had to resolve was whether the grant made by the Sempe stool gave the plaintiff a valid title to the land; in other words, which of the two stools, Sempe or Alata, is the competent authority to grant the land in dispute. It appears that while this case was pending in the High Court litigation arose between the Sempe stool and the Alata stool in respect of a large portion of the James Town lands. It was mentioned during the proceedings in the High Court that the land in dispute in this case is composed of the land that was in dispute between the two stools in that other suit; judgment in that case was delivered subsequent to the judgment in the present case. Now, in the opinion of the Privy Council in Akue v. Ababio IV2 relied upon by the defendant, their Lordships, after discussing briefly the history of the James Town stools and their relationship to the James Town lands, said inter alia: “It was found as a fact by both Courts in the Colony that the lands in question were exclusively used and occupied by the Alatas, and it was admitted by counsel for the appellant that the finding means that those lands were originally settled by the Alatas, the several villages and so forth being founded by them. This finding is accepted by the appellant. It was further found by both Courts that by the custom of the Ga tribe land which had been exclusively used by the
[p.344] of [1965] GLR 341
inhabitants of a particular quarter of James Town belonged exclusively to that quarter. At the trial, the contest appears to have been mainly in reference to the question of the exclusive use and occupation by the Alatas, and it does not seem to have been seriously disputed that if this were established the result mentioned above would follow. In their Lordships’ opinion no ground has been shown for interfering with the decisions of the Courts below, and the appeal therefore fails.” The principle laid down in that decision is that in cases of disputed ownership of any portion of the James Town lands between two or all the three stools of James Town, the sole basis upon which any one of the three stools would be entitled to a declaration of ownership, is satisfactory evidence that the particular area and the surrounding lands are occupied exclusively or predominantly by subjects and grantees of the one or the other of the three stools; in other words, that the area and its surroundings have been under the effective control of the one or the other of those stools. Two main points were urged in this court on behalf of the defendant. The first is that the evidence led on behalf of the plaintiff did not reach the standard of proof generally required in a claim for a declaration of title. The second is that by the judgment subsequent to the judgment in this case, given in the suit between the Sempe stool and the Alata stool referred to above, the area in dispute in the present case has, since the judgment in this case, been adjudged to be Alata stool land, and therefore that judgment between their grantors is binding upon the parties to the present suit as privies to the two stools. As to the contention that the plaintiff failed to prove his case, it must be pointed out, as already observed, that since the land is a portion of James Town lands and the dispute is between grantees of two James Town stools, viz. Sempe and Alata, the proof the plaintiff is required to give, upon the principle laid down in Akue v. Ababio IV (supra) is that the Sempe stool is the stool in effective control of the land in which the area in dispute is comprised; in other words, that the area is exclusively or predominantly in the occupation of subjects and grantees of the Sempe stool. Now, the evidence which was admitted by the defendant, and each of his two witnesses, one of them a member of his family, the other a linguist to the Alata stool, is that the area where the land is situate is a built up area, and that every single building there was erected by and is in the possession of a subject or grantee of the [p.345] of [1965] GLR 341 Sempe stool. That evidence provides conclusive proof as required by the principle in Akue v. Ababio IV (supra). The judgment of the High Court is therefore fully warranted by the evidence on the record. As regards the second point that the plaintiff who obtained his grant of the land from the Sempe stool as far back as 1952, is bound as privy in estate to the Sempe stool, by the judgment in a suit instituted subsequent to his grant, the court drew the attention of learned counsel to the law on the point as enunciated by Romer L.J. in Mercantile Investment & General Trust Co. v. River Plate Trust, Loan & Agency Co.,3 namely that, “A prior purchaser of land cannot be estopped as being privy in estate by a judgment against the vendor commenced after the purchase. See also Abbey v. Ollennu,4 where the same principle was applied. Counsel readily conceded the law, and agreed that the point raised is not maintainable. The judgment appealed from is very sound, fully supported by the evidence, and should therefore not be disturbed. The appeal is accordingly dismissed. As there has been no appearance by or for the respondent there will be no order as to costs. DECISION
Appeal dismissed.
A. K. F.
