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APAU II v. DWUMAA III


  • appeal
  • 1959-03-23
  • COURT OF APPEAL
  • GLR 140-146
  • Print

KORSAH C.J., VAN LARE J.A., AND OLLENNU J.


Summary

Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance?-Validated judgment?'s omission to prescribe which of the parties should erect boundary pillars ordered?-Costs of successful party?-Circumstances in which use of assessors is obligatory on Land Court?-Prescriptive right cannot arise in despite of validated judgment.

Headnotes

Section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance provides as follows:(1) ?"Any executive decision in a dispute or matter relating to the ownership or boundaries of any land or to tribute or fishery rights in Ashanti given, confirmed, or approved by the Chief Commissioner prior to the commencement of this Ordinance, and officially recorded in a Boundary [p.141] Book is hereby validated and invested with full and definite legal force and effect for all purposes whatsoever as against all persons whomsoever the rights of the Crown alone being reserved.(2) ?"If in any case such confirmation or approval was given to a decision subject to any specified variations or modifications, such executive decision is hereby validated and invested with full and definite legal force and effect as so varied or modified.(3) ?"If in any case relating to the boundary of any land, any doubt or question shall arise as to the correct interpretation or application of any such executive decision as aforesaid, the Court (which expression does not include a Native Court) may cause the boundary concerned to be fixed to the best of its ability, guided always by the principle of applying such decision as closely and with as much precision as the Court shall consider practicable. Where a boundary is, either as of first instance or on appeal, so fixed by the Supreme Court, no appeal shall lie from the Court?'s judgment with respect to such fixing.?"The predecessor-in-title of Nkawiehene Nana Twum Barima Apau II had obtained in 1913 ?"an executive decision?" against the predecessor-in-title of Inyianahinhene Nana Kwesi Dwumaa III, in a claim for a demarcation of the boundary between the Stool lands of Nkawie and the Stool lands of Inyinahin. This declared the boundary line between the parties, and directed ?"concrete boundary pillars to be erected at stated points at the charge of Inyinahin.?" The said executive decision was subsequently officially recorded in the ?"Boundary Book.?" The pillars had not been erected, and the Inyinahinhene and his subjects (shortly before this action) had crossed their southern boundary as fixed by the decision, had wrongly entered upon the Nkawiehene?'s Stool land and had commenced extensive indiscriminate cultivation of it without his consent.The Nkawiehene accordingly instituted two separate actions against the Inyinahinhene. The first suit (No. 2/1952) was instituted in the Land Court in Kumasi on 21st January, 1952. In it the Nkawiehene, after reciting the executive decision, claimed ?"an order to carry out the order made on the 17th February, 1913, to erect pillars at the defendant?'s charge or cost in terms of the said executive decision.?"The second suit was instituted in the Asantehene?'s Court ?"B,?" Kumasi, on 5th February, 1952. In it the Nkawiehene, after reciting the previous decision of the Chief Commissioner?'s Court, claimed (1) Recovery of possession, (2) mense profits, and (3) perpetual injunction. The latter suit was transferred to the Land Court in Kumasi by an order dated 19th March, 1952. The two suits were consolidated by an order of the Land Court made on 16th July, 1952.The defence was that the land described in the Nkawiehene?'s statement of claim was Stool land attached to the Inyinahinhene?'s Stool from time immemorial. Defendant further contended that the judgment of the Chief Commissioner?'s Court, on which plaintiff relied, was not a final judgment, but a conditional judgment, which required certain steps to be taken to make it final as regards the land in dispute. Defendant submitted that six years having elapsed since the said judgment, plaintiff could not sue for recovery of the land on the basis of that judgment, and that plaintiff?'s claim was not maintainable because it was statute-barred by virtue of the provisions of the Real Property Limitation Act, 1833. Defendant further said that the allegation that he and his subjects had crossed the boundary, entered plaintiff?'s land and caused extensive indiscriminate cultivation of plaintiff?'s said Stool land without the plaintiff?'s consent was wholly untrue. [p.142].He said that defendant and his people had been in possession and occupation, as owners of the land in dispute, from time immemorial. Since the judgement of the 7th February, 1913, they had continued their possession and occupation of the land as their own Stool property continuously for 39 years, without any interruption or eviction by the plaintiff. They had improved the land by making cocoa farms and villages, and also had incurred pecuniary liabilities. There had been no recent entry as such, but merely maintenance of ownership.The evidence disclosed a large measure of agreement as to the facts upon which the plaintiff based his claim, namely, the validated judgment of 7th February, 1913, which declared the boundary between plaintiff?'s and defendant?'s Stool lands; the direction for pillars to be erected, and also that, in spite of repeated requests by plaintiff, the pillars had not been erected. The only issue of fact about which the parties did not agree was the question whether (apart from the occupation by some of defendant?'s subjects who had been permitted by plaintiff to remain on the land by virtue of the said judgment) other subjects of defendant had recently crossed the boundary, wrongfully entered upon the plaintiff?'s Stool land and commenced extensive indiscriminate cultivation of the plaintiff?'s Stool land without plaintiff?'s consent. On all these issues of fact, the learned trial-Judge (Manyo-Plange J.), found in favour of the plaintiff in both the consolidated cases. He gave judgment for the defendant in the suit concerning the non-erection of boundary posts, since the order for their erection did not specify who was to erect them; and he gave judgment for the plaintiff in the action for possession, etc.The defendant appealed (Civ. App. No. 82/58). The Court dismissed the appeal. Final leave to appeal to the Privy Council was given on the 5th October, 1959.

Judgement

JUDGMENT OF KORSAH C.J.

(His lordship stated the facts, and proceeded)-:

It is obvious that the defendant?'s case in answer to the plaintiff?'s claims in both cases is based almost exclusively on the issues of law raised in his defence, none of which can be said to be likely to deprive the plaintiff of the benefits derived from the validated judgment of 7th February, 1913 by virtue of section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance.

(His lordship read the section as in the headnote, and proceeded:)

With regard to the first of the two suits, viz. No. 2/1952, wherein the claim is for an order for the defendant to carry out the order made on 7th February, 1913, to erect pillars at the defendant?'s charge, the learned Judge held that the claim is misconceived. The sentence in the validated judgment reads as follows: ?"Concrete boundary pillars to be erected at the following points at the charge of Inyinahin.?" I agree with the views expressed by the learned Judge, that the sentence merely directed boundary pillars to be erected, the cost of which was to be charged to the defendant; that there being nothing in the order to show who should erect the pillars, if the defendant refused to erect the pillars the plaintiff could have erected them, and demanded the cost from defendant; and that it might also have been contemplated at the time that an administrative officer in the area would see to it that defendant carried out the directions of the Court. The Judge finally held that he could not agree that the defendant could be held liable by virtue of the validated decision, and thereby compelled to erect the pillars. This, in my view, is a reasonable interpretation of the sentence contained in the said decision.

The learned Judge held, therefore, that suit No. 2/1952 was misconceived and therefore failed. This, in my view, is a correct conclusion which should not be disturbed. But the learned Judge did not apparently consider the question of costs with respect to this suit No. 2/1952. In view of the fact that there were two separate claims, which were consolidated for purposes of trial, the question of costs should have been considered separately in each of them [p.145] and unless there was good reason to the contrary the successful party in either of them could not be deprived of his costs. No reasons have been stated, and I can find none, why in suit No. 2/1952 the defendant, who is the successful party, should not be granted costs in that suit. I would therefore allow the appeal with respect to costs in suit No. 2/1952, which by consent are fixed at 100 for Counsel, other costs to be taxed.

With regard to suit No. 5/1952, the learned trial Judge found in favour of the plaintiff, and gave judgment for the plaintiff (a) for recovery of possession, (b) for perpetual injunction and (c) for mesne profits, in respect of which he awarded 50 damages. It is from that judgment that the appeal in suit No. 5/1952 has been lodged.

The relief sought is stated thus:

(1) Separate costs to be awarded to defendant for his counsel in respect of L.C. 2/52, with an order that other costs for defendant should be taxed;

(2) the judgment in transferred suit No. 5/52, to be set aside, as without jurisdiction, or the plaintiff non-suited.

The grounds of appeal have repeated the questions of law raised in the defence, with one additional ground contending that the learned Judge exceeded his jurisdiction in trying the suit without the aid of an assessor or assessors. The relevant provision in the Courts Ordinance enabling a Judge sitting in the Land Court to try a land case with the aid of assessor, or assessors is contained in section 25 of the Courts Ordinance. Section 25, sub-section 1 reads as follows:-

?"A Land Court shall be fully constituted by any one of the Land Judges but, nevertheless, any cause:

(a) may be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge considers such a course to be desirable after hearing the representations of the parties as to such course;

(b) shall be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge is of opinion that a question of native customary law is involved.

In view of the fact that the claims in both suits are founded on rights derived from the validated decision of a court of competent jurisdiction, which is not disputed, it can hardly be contended that the principles of native customary law and tenure were essential for the determination of the plaintiff?'s claim in either, or both, of the two (2) suits which were consolidated. In any case, there is nothing on [p.146] record to show that in the course of the proceedings the learned Judge considered it desirable to seek the aid of an assessor; indeed, I can find nothing on the record to justify such a course.

It will be observed that, by section 25(1)(a), the law merely permits such a course if the Land Judge deems it desirable; whereas, by section 25(1)(b) it is mandatory, but only when a question of native customary law is essential for the determination of the claim. In my opinion, the learned Judge was not required in the circumstances to invoke the aid of an assessor or assessors, and was therefore competent to try the case without an assessor.

With regard to the contention that defendant?'s subjects have continued to farm on the land in question both before and after the decision of the Chief Commissioner?'s Court in 1913, the learned Judge held that the said decision is in full force and effect, and binding on defendant and his subjects. The defendant?'s subjects farming in the area since the decision have done so as tenants of plaintiff?'s Stool, and have paid tribute to plaintiff?'s Stool since 1918, after the expiration of five (5) years of grace as permitted by the decision. Such occupation, therefore, could not entitle defendant to claim any prescriptive right or interest in the area in dispute.

In the Court below the defendant relied on the Real Property Limitation Act, 1833, which he contended barred the claim of the plaintiff. Although the learned Judge rightly held that his finding of fact made it unnecessary to consider this point, he nevertheless expressed the view that the Real Property Limitation Act, 1833, is not a statute of general application, and not applicable in this country. With the greatest respect, I am impelled on the authorities, e.g. Koney v. U.T.C. Limited (2 W.A.C.A. 188) to observe that he stated the law per incuriam with regard to the application of the Real Property Limitation Act, 1833.

All other questions of law have been satisfactorily disposed of in the judgment of the Court below.

JUDGMENT OF VAN LARE JA.

I agree.

JUDGMENT OF OLLENNU J.

I also agree.

Decision

<P>For these reasons I would dismiss this appeal.</P>

Plaintiff / Appellant

J. B. Danquah

Defendant / Respondent

Benjamin

Referals

(1)  Koney v. U.T.C. (2 W.A.C.A. 188);

 

(2)  Kuntu v. Afilfa VII (12 W.A.C.A. 48);

 

(3)  In re Hobbs, Hobbs v. Wade (36 Ch. D. 553);

 

(4)  Bright v. Bright (9 W.A.C.A. 48).

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