ADJEI AND OTHERS v. ENTSIN AND ANOTHER [1968] GLR 528

DIVISION: HIGH COURT, SEKONDI

DATE: 17 JUNE 1968

BEFORE: OWUSU AG.J.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by reason of section 7 of Cap. 136 to the plaintiffs’ action for, inter alia, declaration of title to land. The facts are stated in the ruling.

COUNSEL

A. W. Acquaah for the plaintiffs.

E. B. Gaisie for the defendants.

JUDGMENT OF OWUSU AG. J.

The proceedings in this case were commenced with a writ filed in the High Court of Justice, Sekondi, on 4 May 1962. The plaintiffs are claiming against the defendants for:

(a) A declaration of their title to all that piece or parcel of land with the hereditaments thereon situate lying and being at Maseso Wassaw Tarkwa District, and bounded on the north by Wassaw stool land measuring 138 ropes (124 ft.) on the south by Suhiensu land measuring 105 ropes (91 ft.) on the east by Wassaw stool land measuring 111 ropes (94 ft.) and on the west by forest measuring 85 ropes (63 ft.) more or less.

(b) £G100 damages for trespass on the plaintiffs’ said land.

(c) Recovery of possession of the portion trespassed upon by the defendants.

(d) Perpetual injunction restraining the defendants their agents, workmen and servants from committing further trespass thereon.

[p.530] of [1968] GLR 528

The plaintiffs in their statement of claim aver inter alia:

“(1) The plaintiffs are owners of the piece of land described in the writ of summons.

(2) By a deed of conveyance dated 26 March 1949, and made between Wassaw Akropong stool and the plaintiffs herein, registered as No. 887/1960, the said land was conveyed to the plaintiffs.

(3) Immediately after the said conveyance the plaintiffs went into possession and fixed concrete pillars along their boundaries.

(4) From the time the plaintiffs took up possession in 1949, they lived on the land in peace and had no interference or challenge from any quarter until some time in 1961.

(5) The defendants herein trespassed thereon in 1961 and refused to quit in spite of both oral and written notices.

(6) Without the consent of the plaintiffs, the defendants have commenced clearing parts of the land with a view to cultivating it and refused to desist from this conduct in spite of the plaintiffs’ repeated requests to them so to do.

(7) The plaintiffs have suffered damage as a result of the said trespass. Wherefore the plaintiffs claim as per writ of summons.”

It must be mentioned here that on 14 June 1962, the Concessions Act, 1962 (Act 124), received the presidential assent; this was barely 40 days after the issue of the writ. Act 124 provides that the provisions of the Concession Ordinance, Cap. 136 (1951 Rev.), shall cease to apply in respect of stool lands. In effect the provisions relating to concessions at the time the writ was issued were those of the Concessions Ordinance, Cap. 136. Hearing of this case commenced on 26 April 1968, and Mr. E. B. Gaisie, who had then taken over the defence from Mr. C. M. Cann, raised a preliminary objection to the effect that the whole action offends against the provisions of the Concessions Ordinance, Cap. 136, s. 7 which provides: “No proceedings shall, without the leave of the Court, be taken to give effect to any concession unless such concession has been certified as valid by the Court.” Section 2 of the Ordinance defines concession as: “any instrument whereby any right title or interest in or to land, or in or to minerals, timber, rubber, or other products of the soil in or growing on any land or the option of acquiring any such right, title or interest purports to be granted or demised by a [p.531] of [1968] GLR 528 native, but does not include an assignment or sub-demise of the whole or any part of the rights granted by any concession.”

By section 4 of the Ordinance as amended by the Concessions (Amendment) Ordinance, 1955 (No. 21 of 1955), certain classes of concessions were excluded from the operation of the provisions of this Ordinance. These exemptions include concessions in respect of land not exceeding 25 acres in area granted or demised to a native. The plaintiffs by their names and description are obviously natives as defined under section 2 of the Ordinance. The purported conveyance of 26 March 1949, and registered as 887/1960 also covers an area of over 25 acres; indeed it covers an area of about 8. 50 sq. miles. It cannot, therefore, be challenged that the instrument is caught by the provisions of Cap. 136. But Mr. A. W. Acquaah argues that the document is only evidencing a transaction between two natives in accordance with native custom, i.e. the value of the document is purely evidential but not one seeking to convey property. He contends that the Concessions Ordinance, is in addition to and not in derogation of the rights which natives have in entering into an agreement. He argues that the payment of £G12 as trama or guaha is in consonance with native custom and not an English conveyance. Cases cited by him in support of his argument include Aikins v. Kommenda [1959] G.L.R. 464; Cofie v. Otoo [1959] G.L.R. 300 and Ogunbambi v. Abowab (1951) 13 W.A.C.A.222. I agree with the learned counsel for the plaintiffs that this is the correct proposition of law. But what is in the instrument itself and in his pleadings to support his argument? It is clear from the pleadings of the plaintiffs that they were relying solely on the deed of conveyance dated 26 March 1949, to claim title and possession. From paragraphs (2) and (3) of the statement of claim this view of mine cannot be controverted. For clarity I shall again refer to these paragraphs: “(2) By a dead of conveyance dated 26 March 1949, and made between the Wassaw Akropong stool and the plaintiffs herein, registered as No. 887/1960, the said land was conveyed to the plaintiffs.

(3) Immediately after the. said conveyance the plaintiffs went into possession and fixed concrete pillars along their boundaries.”

In my view the position would have been different if the plaintiffs had gone into possession by virtue of any customary grant before the preparation of the deed of conveyance. This in my judgment would have been sufficient proof that the value of the deed of conveyance was purely evidential. In their claim, however, the plaintiffs [p.532] of [1968] GLR 528 place their entire reliance on the document dated 26 March 1949, a conveyance of an interest in land by a native to a native, which interest covers an area well over 25 acres: and as I have earlier pointed out this is a concession: see Djomoa v. Amargyei [1961] G.L.R. 170, S.C. The area in dispute far exceeds 25 acres and cannot, therefore, be exempted by section 4 (2) (e) of Cap. 136, and furthermore leave has not been obtained of this court to institute this action. For these reasons, I hold that the action is wrongly before the court and this court would have no jurisdiction to entertain it.

DECISION

Preliminary objection upheld.

S. Y. B. B.