BRESSAAH v. ASANTE AND ANOTHER [1965] GLR 117

DIVISION: SUPREME COURT

DATE: 8 MARCH 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) Quarm v. Yankah II (1930) 1 W.A.C.A. 80. (2) Nii Azuma III v. Fiscian (1953) 14 W.A.C.A.287. (3) Golightly v. Ashrifi (1953) 14 W.A.C.A. 676. (4) Ohimen v. Adjei (1957) 2 W.A.L.R. 275. (5) Flint v. Lovell [1935] 1 K.B. 354; 51 T.L.R. 127, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Kumasi, upholding the respondents’ claim for a declaration of title to land, an injunction to restrain the appellant from building on the said land and damages for trespass. The facts are fully stated in the judgment of Mills-Odoi J.S.C.

COUNSEL

Owusu-Afriyie for the appellant. D. S. Effah for the respondents.

JUDGMENT OF MILLS-ODOI J.S.C.

This is an appeal from the judgment of Apaloo J. (as he then was) sitting in the High Court, Kumasi. The action resulting in this appeal was instituted by the plaintiffs-respondents (hereinafter shortly referred to as the plaintiffs) against the defendant-appellant (hereinafter referred to as the defendant) claiming for themselves and as representing the other members of the Roman Catholic Church of Juaso a declaration of title to a piece of land, a site plan of which was attached to the writ, an injunction to restrain the defendant from building on the said land, and damages for trespass. The case for the plaintiffs is that about the year 1928 the land in dispute was granted to them by the Juasohene, Nana Kofi Danso, for the purpose of building thereon a Roman Catholic Church; but before any aseda or customary drink could be paid or given to the Juaso stool to validate the grant Nana Danso died. He was however succeeded by Nana Kwabena Agyei to whom the plaintiffs performed [p.119] of [1965] GLR 117-125 the necessary custom and the grant which was otherwise inchoate became perfect. Within a period of two years after the perfection of the grant, the plaintiffs built a Roman Catholic Church on a portion of the land in dispute. In 1959, the defendant, without any leave and licence of the plaintiffs or any member of the Roman Catholic Church, trespassed upon and started erecting a building on a portion of the land in spite of vehement protests and repeated objections from the plaintiffs. For these reasons the plaintiffs instituted this action against the defendant. The defendant admitted the entry upon the land in dispute and the construction thereon of the building but denied that that land was granted to the plaintiffs by the Juaso stool. He contended that even if a grant was made to the plaintiffs by the said stool it was void as against his family, inasmuch as the disputed land was and still is the ancestral land of his family. He further contended that the plaintiffs were estopped by conduct from impugning his right to build on the land in dispute, because the question whether or not he was entitled to build on the said land was at one time the subject-matter of an arbitration conducted by the Juasohene in which he was adjudged entitled to erect thereon the said building. The cardinal or primary issues of fact, therefore, which arose for determination are: (a) whether the Juaso stool made a valid grant of the land in dispute to the plaintiffs and, if so, whether that grant is binding on the defendant’s family; and (b) whether the dispute has been arbitrated upon by the Juasohene? After hearing evidence the learned trial judge, in a well reasoned judgment, decided the issues in favour of the plaintiffs in the following words: “I find that the land in dispute was validly granted to the plaintiffs for the purpose of erecting thereon a Roman Catholic Church about 35 years ago. I am satisfied that at the date of the said grant, it was vacant unappropriated land which was vested in the Juaso stool. I find it proved that the defendant in or about 1959 wrongfully entered onto a portion of the said land and commenced and completed thereon the erection of a building despite protests and objections from the plaintiffs. I accordingly find that the meeting at the Juasohene’s palace was an attempt to arrive at a compromise and that this was unsuccessful. I hold therefore that the plaintiffs are not estopped with this suit against the defendant.” He then granted the plaintiffs the reliefs sought by them. Against this judgment the defendant has appealed to this court on the following grounds, namely:

[p.120] of [1965] GLR 117-125

“(a) The judgment is against the weight of evidence. (b) The judgment is wrong in law inasmuch as the Roman Catholic Church not being a native cannot take a grant under customary law. (c) The quantum of damages awarded the plaintiffs is excessive and harsh. (d) Having regard to the physical disability of Albert Danso, the learned trial judge erred in law in attaching any weight to the evidence of this witness.” The submission that the judgment is against the weight of evidence, which is a question of fact, has no foundation. The learned judge did consider the two principal issues in the case, namely, (1) whether the Juaso stool made a valid grant of the land in dispute to the plaintiffs, and if so, whether that grant binds the defendant’s family, and (2) whether the dispute had been arbitrated upon by the Juasohene. The first issue can be determined by the evidence of the occupant or elders of the Juaso stool and the evidence of any witness to the separate grant, especially the latter grant, and by acts of ownership. The first plaintiff, Anthony Danso Asante, a blind man of the Roman Catholic Church, was put forward by the plaintiffs as a witness to the separate grants of the disputed land. His evidence at the trial contains the following passage: “I am now 62. When I was about eighteen or twenty years old, the people of Juaso moved from their old settlement to found a new one. I was a member of the church then. When the people removed to their new settlement the church asked the Juaso stool for a piece of land. I did not accompany them. The stool granted the church a piece of land. It was then forest. I was among those who cleared the forest. In course of time a new lay-out of Juaso was made. The land granted to the church was shown on it. The present occupant of the Juaso stool is Nana Owusu Achao II. At the time the grant of the land was made to the church Nana Achao II was not on the stool. Nana Kofi Danso now deceased was the occupant of the Juaso stool at the time of the grant to the church. Nana Danso was succeeded by Nana Kwabena Agyei who was destooled. Agyei was in turn succeeded on the stool by Nana Kwabena Owusu, then Kwame Agyeman, then Nana Kweku Danso II, then Nana Kwabena Bosompem II. He was succeeded by Nana Owusu Achao the present chief. Throughout the reigns of all these chiefs the church were in possession of the land in dispute. A church was

[p.121] of [1965] GLR 117-125 erected on a portion of the land. In addition the Roman Catholic Church erected a school building on it but this is unfinished.” The evidence of the first plaintiff as to the grant of the land by the Juaso stool was abundantly corroborated by the evidence of Nana Kwabena Agyei, the immediate successor of Nana Kofi Danso, and by acts of user performed by the plaintiffs for many years. In the words of the learned judge, “Nana Agyei . . . showed every sign of being an honest witness [and] most convincingly supported the grant.” His evidence, material to this issue, reads as follows: “When we moved to the new township, the elders of the Roman Catholic Church told me about something done by my predecessor. Accordingly I asked them to provide drinks to stamp what my predecessor had done. My elders were present when I had discussion with the elders of the church. They are the Krontihene Agyapong, Gyasehene Kwadwo Kessie, Linguist Babai, the Queenmother Frimpongma, the Nifahene Kwadwo Gyewa. In the presence of my elders, and the church elders, two bottles of schnapps were provided by the Roman Catholic Church elders. It was opened and drunk. Accordingly the land allotted to the church was declared granted to the church.” The plaintiffs also called as a witness, one Albert Adjabeng, health inspector of the Ministry of Health who tendered in evidence a plan (exhibit G) showing the official layout of Juaso which was made between 1928 and 1929. In the plan the area in dispute is shown and described as “proposed Catholic Mission Site.” The evidence of this witness, taken in isolation, shows that as long ago as 1929 the land in dispute was reputed to belong to the plaintiffs. In 1956, i.e. about 28 years after the grant, the Juaso Local Council attempted to plot out the area in dispute for building purposes and the plaintiffs successfully resisted it. The defendant on the other hand called a witness Nana Achao II alias Nana Owusu Akyaw II, the then occupant of the Juaso stool, purposely to rebut the evidence of his predecessor, Nana Kwabena Agyei. But he testified that in 1954 while he was the Juasohene he appended his signature to a plan (exhibit B) and admitted that the land described in that plan was the land granted by his predecessor in title to the plaintiffs. Although this witness was called by the defendant, his evidence, under cross-examination, lent support to the plaintiffs’ case. It is as follows: “I recognise my signature on exhibit B as well. The date at the bottom of my signature in exhibit B is in my handwriting. It is correct that the area shown in the plan exhibit B was what the

[p.122] of [1965] GLR 117-125 stool granted to the Roman Catholic Mission. I admit Bressaah is building on part of the land belonging to the church but I say the Catholic Church themselves agreed.” In my opinion, therefore, the learned trial judge was right in holding that the land in dispute was validly granted by the Juaso stool to the plaintiffs for the purpose of erecting thereon a Roman Catholic Church and that since the grant the plaintiffs have been in possession. Although conceding the allodial title in the land in dispute to be vested in the Juaso stool, the defendant contended that his ancestor by name Poku reduced the disputed land into his possession by cultivation and that the successors in title of Poku have successively farmed on the said land. The learned judge, after careful review of the relevant evidence, found emphatically, “that when the grant of the land was first made to the plaintiffs about 35 years ago, it was not part of the defendant’s ancestral land,” a finding in which I am in full agreement. He was satisfied, however, that the area granted to the plaintiffs was vacant stool land which was vested in the Juaso stool. And there is sufficient evidence on record to support that finding. Assuming for a moment that the defendant’s ancestor, Poku, obtained possession of the land in dispute as agricultural land, thereby to acquire a determinable title to the said land by an implied grant from the Juaso stool, after the grant by the said stool to the plaintiffs, that subsequent grant would be ineffective and would not affect the title of the plaintiffs in possession. The principle laid down in all the cases is that a stool cannot validly alienate stool land in the occupation of a subject, without the prior consent of the subject in occupation, or even of strangers who have properly been granted some interest in the land. The grantee upon such alienation cannot obtain possession, and he and his grantors commit trespass if they enter upon the land for that purpose, or in pursuance of the alleged grant: see Quarm v. Yankah II,1 Nii Azuma III v. Fiscian,2 and Golightly v. Ashrifi.3 Turning now to the second issue, the defendant contended that there was an arbitration into the question of his right to erect a building on the land in dispute and that the arbitrator, Nana Juasohene, adjudged him entitled to proceed on the ground, “that the land appeared to be the defendant’s ancestral land; and that the defendant was a church member and should not be disturbed.” But this was

[p.123] of [1965] GLR 117-125 seriously denied by the plaintiffs. That there was a meeting at the Juasohene’s palace at which the building of the defendant on the land in dispute was discussed seems plain enough. The crucial issue for determination by the trial court therefore is whether the meeting by the parties at the palace constituted an arbitration, in which case any decision arrived at would be binding on both parties. The learned trial judge held, and I am in full agreement, that the meeting at the palace was an attempt to arrive at a compromise and that this was unsuccessful. In my view, therefore, the plaintiffs are not estopped by their conduct from instituting this action against the defendant and ground (a) of the grounds of appeal referred to (supra) therefore fails. In developing his arguments in support of’ ground (b) of the grounds of appeal learned counsel for the defendant cited the case of Ohimen v. Adjei,4 and submitted that the consent of the defendant’s family was necessary before any grant of the land in dispute can be made by the Juaso stool. Although this case is not binding on this court, in that it is a case decided by the High Court, nevertheless the principle of customary law enunciated therein, and material to the instant case, does not depart from the principle laid down in the case of Golightly v. Ashrifi.5 It is this: A stool may not alienate stool lands in the occupation of a stool subject unless the prior consent of the subject is obtained. The finding of the learned trial judge as stated earlier in this judgment, that the area in dispute was vested in the Juaso stool and that at the time the grant was made by the stool the said land was not part of the defendant’s ancestral land, completely disposes of this submission, and rightly so in my view. This ground of appeal which is devoid of any substance also fails. As a matter of convenience I shall deal with ground (d) of the grounds of appeal out of its turn, namely, that, “Having regard to the physical disability of Albert Danso, the learned trial judge erred in law in attaching any weight to the evidence of this witness.” It is not denied that the first plaintiff, Anthony Albert Danso who gave evidence at the trial, was blind and that he was blind at the time the area in dispute was granted to the plaintiffs. But his physical disability, i.e. blindness, does not preclude him from acquiring knowledge of the grant to the Roman Catholic Church of which he was and still a member. His evidence which relates materially to the grant of the disputed land by the Juaso stool to the plaintiffs did

[p.124] of [1965] GLR 117-125 not stand alone; and, as the learned trial judge rightly said, “it is abundantly corroborated not only by living witnesses but by acts of user performed by the plaintiffs for many years.” The evidence of Albert Danso relating to the grant of the disputed land was corroborated by the evidence of Nana Kwabena Agyei, ex-Juasohene, that in the presence of the stool elders the members of the Roman Catholic Church produced two bottles of schnapps and that, “Accordingly the land allotted to the church was declared granted to the church.” In 1956, when the Juaso Local Council trespassed on the land in dispute and attempted to plot out the area for building purposes, Nana Owusu Achao II wrote a letter to the clerk of the Juaso Local Council informing him of the plaintiffs’ determinable title to the land and requested the council to refrain from interfering with the rights of the plaintiffs. The letter, exhibit H, is dated 24 July 1956 and bears the heading “Juaso Roman Catholic Mission plot of land — New Juaso Layout,” paragraph (2) of which reads as follows: “(2) So far as I am concerned that plot of land was allocated to the Roman Catholic Mission by the late Nana Kofi Danso Juasohene of blessed memory and his elders none alive now after Mr. Nkonu a government surveyor had surveyed the plot; this was thirty-three years ago.” On 7 February 1957 Nana Owusu Achao II wrote another letter to the clerk of the Juaso Local Council, exhibit K, in connection with the layout of the area in dispute for building purposes, paragraphs 2, 3 and 4 of that letter, material to the issues in the instant case, read as follows: “The Juasohene explained to the Juasoman that the land was truly acquired through the customary means since the reign of the late Juasohene Nana Kofi Danso about thirty-four years (34) ago. It was agreed by the majority at the meeting that the Juaso Local Council should not make any attempt to plot the land because it is purely for Juaso Roman Catholic Mission. It was suggested that Juaso Local Council could approach the Mission to show their boundaries in order to help the Council to proceed with allocating the plots outside that of the Catholic Mission to interested builders.” In the circumstances I am of the opinion that the learned trial judge did not fall into any error by attaching weight to the evidence of Albert Danso.

[p.125] of [1965] GLR 117-125

As to the question whether the damages awarded are excessive and harsh, the learned trial judge found upon the evidence that “the defendant has been defiant and wholly impervious to reason. The trespass was persisted in after all warning.” The assessment of damages is peculiarly the province of the trial court and this court will not interfere unless the finding is out of all proportion to the facts. In the case of Flint v. Lovell,6 Greer L.J. in the course of his judgment laid down the following principles which should guide an appellate court in considering the question of adequacy or otherwise of damages awarded by the trial court in the following words: “I should like to add a few words about the jurisdiction of this Court in appeals where the only contention, or one of the contentions, is that the damages awarded by a judge hearing a case without a jury are excessive … I think it right to say that this Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case they would have given a lesser sum. In order to justify reversing the trial judge on the question of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.” In the instant case learned counsel for the defendant failed to satisfy this court that the learned trial judge acted upon any wrong principle of law, or that he wrongly exercised his discretion in the assessment of the damages in order to enable us to exercise a proper one according to common sense and according to justice. For these reasons the appeal is dismissed.

JUDGMENT OF OLLENNU J.S.C.

I agree.

JUDGMENT OF BRUCE-LYLE J.S.C.

I also agree.

DECISION

Appeal dismissed.

A. K. F.