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AMOAH II AND KWAKU v. TEI


  • appeal
  • 1961-05-15
  • SUPREME COURT
  • GLR 231-232
  • Print

KORSAH, D.J., VAN LARE AND AKIWUMI, JJ.S.C.


Summary

Customary law?-Land?- Trespass?- Action by tenant before terms and nature of tenancy to be granted were decided.

Headnotes

The second plaintiff and the defendant occupied adjoining land at Bunso. They had been in occupation of the land for a considerable time when the second plaintiff began to dispute the boundary between his land and the defendant's. Sometime later, the first plaintiff, as Ohene of Asamankese instituted an action in respect of a larger area of land which included the land occupied by the second plaintiff and the defendant, and upon obtaining declaration of title was thereby declared overlord of all the lands at Bunso. The second plaintiff and the defendant expressed their willingness to attorn tenant to the first plaintiff in respect of the areas in their respective possession but at the time this action was instituted, the first plaintiff had not inspected the portions of land occupied by each of them, which he had undertaken to do before deciding upon the terms and nature of tenancy he would then grant to them.The second plaintiff sought to have the defendant ejected from a portion of land which he, the second plaintiff, claimed was in his occupation and on which the defendant was allegedly squatting or trespassing.

Judgement

APPEAL from the judgment of Sarkodee-Adoo, J., in the Land Court, Accra, delivered on the 25th May, 1960, which reversed the decision of the Akyem Abuakwa Native Court "A" and restored the decision of the Native Court "A" at Asamankese in an action for eviction from certain land. The facts, which are taken from the judgment of the Supreme Court, are set out in the headnote.

JUDGMENT OF VAN LARE J.S.C.

Van Lare, J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] The sole point for decision in this [p.232] matter is whether or not the defendant was a squatter because he was said to have trespassed upon an area allegedly in the occupation of the second plaintiff. The claim reads as follows:

"The plaintiff's claim from the defendant is to show cause why defendant as a squatter and trespasser should not be removed or evicted from the land of the plaintiffs which second plaintiff held same as an abusa tenant."

That the defendant had trespassed on the second plaintiff?'s portion of the land had not been established, and the first plaintiff had not himself been to the area in dispute between the second plaintiff and the defendant, and he had not yet decided the terms of tenancy of either the second plaintiff or the defendant. In the circumstances there is little wonder that the trial Native Court "A" at Asamankese resolved the issue in favour of the defendant and dismissed the plaintiff?'s action. The necessary part of their judgment is as follows:

"It is evidently clear, that according to Akan custom, the 1st plaintiff has not yet given an assent to a lawful occupation of the said land at Bunso to either the 2nd plaintiff or the defendant.

The 1st plaintiff could not satisfy this native court as to how the 2nd plaintiff's occupation of the disputed land has been customarily assented to by the 1st plaintiff and the elders of the Asamankese stool.

In our opinion the 1st plaintiff in his capacity as the virtual claimant of right title to the disputed land, being property of the Asamankese stool, went wrong (sic) in holding that the defendant was a squatter and a trespasser on the said land held by 2nd plaintiff as an abusa tenant."

In effect, since both the second plaintiff and the defendant had attorned tenants to the first plaintiff, and the first plaintiff had agreed to inspect the respective portions of the land occupied by both of them before deciding the terms and nature of tenancy he would grant to them, this suit was premature.

On appeal to the Akyem Abuakwa Native Court ?"A?", the judgment of the trial native court was reversed in favour of the plaintiffs on no justifiable ground, but on a further appeal, however, to the Land Court, Accra, the learned judge, Sarkodee-Adoo, J., as he then was, rightly reversed the obviously wrong decision of the Akyem Abuakwa Native Court "A" and in restoring the decision of the trial native court expressed the opinion that the action was premature as both the second plaintiff and the defendant were in the same class of interest with respect to the land, the subject-matter of the suit.

We agree with the judge of the Land Court, Accra, that the action was misconceived and therefore properly dismissed by the trial Native Court "A" at Asamankese.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

G.D. Ampaw

Defendant / Respondent

No appearance

Referals

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