SERAPHIM v. AMUA-SEKYI [1971] 2 GLR 132

DIVISION: IN THE COURT OF APPEAL

DATE: 25 JANUARY 1971

BEFORE: APALOO, SOWAH AND ARCHER JJ.A.

CASES REFERRED TO

(1) Dam v. Addo [1962] 2 G.L.R. 200, S.C.

(2) Ashong v. Cofie, W.A.C.A., 11 February 1957, unreported.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Ollennu J. (as he then was) reported in [1962] 11 G.L.R. 328, in which the plaintiff’s claim for recovery of possession of, and damages for trespass to, a plot of land bought in 1947 from a stool

[p.133] of [1971] 2 GLR 132 was dismissed. The facts are sufficiently set out in the judgment of Apaloo J.A.

COUNSEL

H.V.A. Franklin (E. D. Kom and Djamson with him) for the appellant.

K. Ohene-Ampofo for the respondent.

JUDGMENT OF APALOO J.A.

This appeal is from the judgment of the High Court, Accra, which Ollennu J. (as he then was) delivered on 7 May 1962. By that judgment, the court dismissed a claim by the appellant for recovery of possession and damages for trespass to two plots of land said to be situate at Opete Kpakpo (Abossey Okai) and sustained a counterclaim by the respondent for a declaration of title to a portion of that land. The parties derived title from two rival grantors, the appellant from the Akumadjey stool, while the respondent obtained his from Korkoi Abossey who herself relied on a deed of gift made in her favour by Nii Abossey Okai in October 1929. But the parties themselves relied on deeds of conveyance, the appellant’s dating back from 1947 while the respondent’s bore the date September 1960. The evidence shows that soon after obtaining the two plots of land in 1947, the appellant caused them to be fenced. He then put a watchman in charge of them. At some time before the writ issued, the respondent entered a portion of the land, broke down the fence and commenced building operation on the land. It is this conduct of the respondent which occasioned this litigation.

In view of the position taken up by the parties, it was necessary to decide as between the rival grantors, who was the owner of the land and who thus had good right to convey. But for the fact that the judgment of the court below was overlaid with claims of customary possession and the like, the decision on title should not have presented any problem. This is because the ownership of the whole of the Opete Kpakpo lands has already been thrashed out between the rival grantors and the courts have found squarely for the Akumadjey stool — the appellant’s grantor. Indeed, at the date when Korkoi Abossey conveyed the land to the respondent, there was a valid and subsisting order of the court restraining her from dealing with the land (exhibit K).

The learned judge, however, was able to find for the respondent not on the purely legal and sometimes unsatisfactory ground that the onus probandi was not discharged, but on the ground that the respondent’s vendor had acquired a usufructuary title which availed against the stool itself and that the alienation of that interest by her was good and passed a good title to the purchaser whereas a similar and earlier alienation of title by the stool — the rightful owner — was void and of no effect. In order to be able to come to this conclusion, the learned judge had to accept as proved a very tenuous evidence of long uninterrupted possession averred by the respondent’s vendor Korkoi Abossey. That evidence was [p.134] of [1971] 2 GLR 132 a bare assertion that, “After the land was given to me, I farmed it, grew cassava on it, planted palm trees, mango trees and cashew trees on it and erected pillars on it, i.e. at the four corners thereof.” The judge accepted this in preference to the more impressive evidence that the appellant in 1947, fenced the whole land and at that date, it was unoccupied. He then maintained his possession by keeping a watchman on it and it was when the latter’s possession was invaded by the respondent that the present writ was taken out.

If I were left to decide as to which of the parties led reliable evidence of possession, I should feel no hesitation in saying it was the appellant.

But the main complaint raised against the judgment does not depend on the poverty of Korkoi Abossey’s evidence of possession but on a more fundamental point of law, namely, that the learned judge himself raised for the respondent, a defence which was never raised or could have been properly raised and found for the respondent on that basis. That defence was, that as Korkoi Abossey was a subject of the Akumadjey stool, she was entitled to occupy any vacant stool land and by occupying such land for a long time she acquired a usufructuary title which she could alienate and which alienation was valid even against the stool. In order to make this plea, it was necessary to dispose of the basis on which both Korkoi Abossey and the respondent fought their claims, namely, they had acquired valid titles to the land by a deed of gift and conveyance on sale respectively. The learned judge disposed of this by saying that these deeds evidenced oral customary transactions and were not themselves dispositive of the titles. Mr. Kom, for the appellant, argued that a claim that Korkoi Abossey occupied the land as subject of the stool since 1929 would be inconsistent with the basis on which she fought the action which resulted in her defeat and such a claim ought not to be entertained. He relied strongly on the Supreme Court decision in Dam v. Addo [1962] 2 G.L.R. 200. Mr. Ohene-Ampofo, for the respondent, replied that the judge merely used well known principles of law to buttress the claim of the respondent and he would be failing in his duty of doing justice to the parties if he omitted to do that.

I do not think Mr. Ohene Ampofo’s view reflects the correct position One must concede to a judge who is deemed to know the law, the right to apply it in determining a dispute even if such law is unknown to the parties or mutually misunderstood by them. Nor, I think, if a person claimed absolute title to land and succeeded in proving anything less, should he lose only on that ground. To do so would be to confine the determination of disputes to narrow legalistic grounds. Indeed in this court, no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it can be supported. Here the crucial question is: Could Korkoi Abossey herself consistently with her stand in the previous action with the Akumadjey stool, truthfully aver that she had

[p.135] of [1971] 2 GLR 132 occupied the land since 1929 as stool land and in exercise of her right as a subject of the Akumadjey stool? That question admits of only a negative answer.

The judgment produced in evidence shows that in the previous action, she asserted title in the Na Adawude family as against the stool. She obviously could not have claimed then that she occupied the land as a stool subject. To do so would involve her admitting the stool’s title which she then essayed to dispute. That claim was found false. Could she be permitted to say in the instant action that the land in truth belonged to the stool and that her possession derived from her right as a stool subject to occupy vacant stool land? I do not think that she should.

Indeed, in the unreported case of Ashong v. Cofie, W.A.C.A., dated 11 February 1957, the respondent successfully did what the respondent did in this case. But the West African Court of Appeal did not permit this. In the course of its judgment, Coussey P. who spoke for the court said: “It is true that Daniel Morton and Lamiki Aruna witnesses for the defendants, testified that the late Cofie Congo farmed portions of the area in dispute with the permission of Kojo, the brother and husband respectively of the two witnesses. If the plaintiff’s predecessor had such a possessory title, it was based on a licence from the Brazilian family and not upon an outright grant from the Ga stool or Nii Tetteh Kwamin of Atukpai.

But this was not the title claimed by the plaintiff or declared by the court. The learned trial judge held and here, with respect to him, I think he erred; that he accepted the evidence that the late Cofie Congo acquired his original possession from the Ga Mantse, through Nii Tetteh Kwamin, an elder of Atukpai. It would be unsafe to permit a claimant to land to assert one title at a particular time and to jettison it and set up an entirely different title when the first one had been tried out and for some reason found to be unsatisfactory. This is precisely what the plaintiff has done. If this were allowed, there would be no finality in litigation.” The court then proceeded to allow the appeal and reverse the trial court.

Virtually, every word of that passage applies to this case with the important difference that Korkoi Abossey, the respondent’s grantor, did not in fact rely on possessory title acquired from occupation of stool land. This was set up by the judge ex proprio motu. She relied on a deed of gift made to her by her father in 1929. I think, with respect, the learned judge was in error in grounding his decision on possessory title.

The question, therefore, is: Whether title to part of Opete Kpakpo land acquired from Abossey Okai avails against title obtained from the Akumadjey stool? At the date the conveyance was executed, that is 16 October 1929, Abossey Okai was acting Manche of the Akumadjey [p.136] of [1971] 2 GLR 132 stool. But although he described himself in the deed as such, the conveyance was not made as stool land. No stool elders were concurring parties or attesting witnesses to the deed nor was the grant expressed to be made on behalf of the stool. It was obviously conveyed as Abossey Okai’s own land. The subsequent litigation in which his successor asserted title in the Na Adawude family, shows that the Abossey Okai family have always regarded the Opete Kpakpo land as their private family property. That claim has now been debunked in three solid judgments of the courts. The position, therefore, is that that conveyance is void as against a grantee of the party adjudged to be the rightful owner, namely, the appellant. There is, therefore, no legal basis on which a grantee of Abossey Okai can obtain a declaration of title against the appellant to any portion of the land in dispute. It follows that the order granting declaration of title to the respondent was wrong and must be set aside.

But should the appellant who was the plaintiff succeed because the respondent’s title was found to be bad? The hackneyed proposition of law is that he must succeed on the strength of his own case. His case is simple enough. He acquired the two plots from the grantees of the rightful owner. The Akumadjey stool concurred in the alienation of these plots to the appellant and joined in the conveyance as a confirming party. That land was vacant and unoccupied at the date of the grants. The appellant took possession of the plots and by a caretaker, enjoyed undisturbed possession for the best part of fourteen years when the respondent who has been shown to have no valid title to the land interfered with his possession to give rise to the instant proceedings. In my judgment, the appellant has proved his title to the two plots as best as any one may in this country and was entitled to the reliefs which he sought. With respect, the learned judge’s contrary conclusion was wrong and ought to be reversed.

Accordingly, I would allow the appeal and set aside the judgment appealed from. In lieu of it, I would order that the appellant do recover from the respondent the two pieces of land described in the writ and also perpetual injunction restraining the respondent, his servants, grantees and agents from further entering the said land or in any way interfering with the appellant’s rights to that property. I would also award the appellant against the respondent N¢500.00 damages for trespass.

JUDGMENT OF SOWAH J.A.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION

Appeal allowed.

S. A. B.