Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 ATTA PANYIN AND ANOTHER v. ASANI II | GhanaLegal - Resources for the legal brains

ATTA PANYIN AND ANOTHER v. ASANI II


  • New
  • 1941-06-09
  • HIGH COURT
  • GLR 305-316
  • Print

ADUMUA-BOSSMAN J.


Summary

Estoppel?-Action for declaration of title to land?-judgment between predecessor of plaintiff and a third party as to ownership of same land?-Evidence given for plaintiff in former suit by predecessor in title of defendant?-Estoppel by conduct.Land law?-Allodial owner cannot interfere with occupation of usufructuary owner.Land law?-Pre-requisites of a valid gift of land.

Headnotes

In 1934 the predecessor of the co-plaintiff, the Omanhene of Breman-Asikuma, instituted an action against the Omanhene of Breman-Esiam for declaration of title to the Bedum land. The case was heard by the Judicial Committee of the Provincial Council of Chiefs, Cape Coast, who gave judgment on the 23rd June, 1943 in favour of Breman-Asikuma. An appeal to the Divisional Court, Cape Coast, was dismissed on the 7th March, 1945. In the course of the case before the Provincial Council the predecessor of the defendant, representing the stool of Bedum which is in possession of the disputed land, gave evidence for Breman-Asikuma confirming that the land is for Breman-Asikuma. The plaintiff in this case, the stool of Ewumaso, is a sub-stool to the Breman-Asikuma stool and the caretaker of the Bedum land. In the late 1950?'s the [p.306] Bedum stool began to allocate portions of the land to strangers without reference to the plaintiff or the co-plaintiff, claiming that the Bedum stool is the owner of the land. Whereupon the plaintiff instituted the present action for declaration of title to the land, recovery of possession and an injunction. The co-plaintiff stool later joined the action. The defendant stool cross-claimed for title relying on settlement on the land in their own right from time immemorial, or alternatively on a gift of the land by the plaintiff confirmed by a document dated the 23rd April, 1943. The said document was executed by representatives of the plaintiff and co-plaintiff stools during the 1943 litigation, and purported to make an absolute gift of the land to the defendant stool.

Judgement

ACTION for declaration of title to land and an injunction. The facts are fully set out in the judgment.

JUDGMENT OF ADUMUAH-BOSSMAN J.

This action was transferred from the Native Court ?'B?' of Breman-Asikuma for trial in this court.

By the writ filed in the native court the plaintiff?'s claim was:

?"(1) For defendant to declare his title to all that piece or parcel of land situate at Bedum in the Cape Coast District commonly called ?'Bedum land?' which is part and parcel of the Ewumaso stool land called ?'Edumangya?' valuing G40,000, attached to plaintiff?'s stool now occupied by and in possession of the defendant and his people by the permission of the plaintiff, bounded on the north by Breman-Asikuma stools lands, on south by Kweku Koom of Beseasi?'s land and by lands belonging to Messrs. Yaw Anahuma and Egyir Ahum of Esiam, on east by Breman-Asikuma stools lands, and on west by land of Kojo Esiam of Anyinasu; and

(2) For defendant and his people, servants, agents, tenants and workmen and all others claiming right to access to the said piece or parcel of land derived from the defendant to be restrained on Oath from interfering or in anyway dealing with the land the subject-matter of the dispute.?"

In this court the usual order for pleadings was made, and the statement of claim filed pursuant to that order on behalf of the plaintiff contained the following material allegations:

?"The plaintiff?'s stool is the owner of the land described in the writ of summons as being a portion of the land known as ?'Adumangya land?' (paragraph 3).

The defendant and his subjects occupy the said land by leave and licence of plaintiff?'s stool such leave and licence having had the consent of the Omanhene of Breman-Asikuma whose sub-chief the plaintiff is. The ancestors of defendant and his subjects were first granted the land by plaintiff?'s stool about 200 years ago upon the term, among others, that they paid to plaintiff?'s stool an annual tribute of 2 8s 6d. (?'Osuaa-ne-doma?' in the Akan language) a sheep, yams and a bottle of gin. This tribute has, since the people of Bedum occupied the land aforesaid, been regularly paid. (paragraph 4).

Of late the defendant has been asserting title of ownership to the said land, and threatens to discontinue the payment of the tribute aforesaid. The defendant in assertion of his unfounded claim to ownership of the said land has been alienating portions of the said land without the consent of the plaintiff?'s stool (paragraph 5).

The plaintiff says that the defendant is estopped per rem judicatam from claiming ownership of the said land by reason of the judgment of the then Judicial Committee of the Provincial Council of Chiefs dated the 23rd June, 1943, in a suit between Nana Ofabir Yebua II, Omanhene of Asikuma (plaintiff), and Nana Odoom Asante III, Omanhene of Breman-Esiam (defendant). In the said suit the Omahene of Breman-Asikuma the superior chief of the plaintiff claimed against the Omanhene of Esiam who was laying claim to over-lordship of the land occupied by the defendant herein, a declaration that the very land in dispute herein was the property of the plaintiff?'s stool over which the stool of Asikuma was the overlord. Judgment went in favour of the paramount stool of Asikuma and the said judgment was confirmed on appeal to a Divisional Court of the Supreme Court of the then Gold Coast on the 7th March, 1945. Wherefore the plaintiff claims as per his writ of summons?".

The statement of defence filed on behalf of the defendant contained the following material allegations:

?"Defendant denies paragraph 3 of the statement of claim and in answer thereto avers that the ancestors of the defendant were the first to break the virgin forest and made farms and founded the village of Bedum (paragraph 3).

Defendant denies paragraph 4 of the statement of claim and in answer thereto avers that they occupy the land subject-matter of dispute as owners and not by leave and licence of the plaintiff or at all (paragraph 4). [p.308]

In answer to paragraph 6 the defendant avers that the stool and Oman of Bedum are not in anyway estopped per rem judicatam by the judgment in the case of Nana Ofabir Yebuah II, Omanhene of Asikuma (plaintiff) and Nana Odoom Asante III, Omanhene of Breman-Esiam (defendant), or at all. (paragraph 5).

Defendant denies every other allegation contained in the plaintiff?'s statement of claim (paragraph 6).?"

It was at this stage after the filing of statement of defence that Nana Amankwa Boadu VI, Omanhene of Breman-Asikuma state, the overlord of the plaintiff claiming the interest of an overlord in the land in dispute and claiming that its occupation by the defendant and his people was with the permission of his stool also, in addition to the permission of the plaintiff?'s stool, applied and was joined as co-plaintiff in the action. A statement of claim was then filed on his behalf in terms identical with that filed on behalf of the plaintiff, with the exception of the following additional allegation:

?"The co-plaintiff further says that Nana Kojo Buabin then Ohene of Bedum the defendant?'s predecessor-in-title, through his accredited representative, i.e. Joseph Henry Odoom an elder of the Bedum stool gave evidence in support of the claim herein of the plaintiff and co-plaintiff. The co-plaintiff therefore says that the defendant is estopped by the evidence of his predecessor-in-title from alleging anything contrary to the evidence of his predecessor-in-title; in other words, the defendant is estopped from denying the ownership of the plaintiff and the co-plaintiff to the subject-matter of this suit.?"

By leave an amended statement of defence was filed on behalf of the defendant, the material allegations in which were the following:

?"3. Defendant in answer to paragraph 2, 3 and 4 of the statement of claim filed on behalf of the co-plaintiff avers that the subjects of the stool of Bedum have lived on and occupied the land the subject of dispute for upwards of 300 years without payment of tribute to either the plaintiff herein, and pleads ownership.

4. Defendant in answer to paragraph 5 avers that the land in dispute is vested in the stool of the defendant, and further that the defendant had performed acts of ownership by alienating portions of the said land to his subjects of his stool and other licensees and strangers for upwards of 300 years, incurring pecuniary responsibilities thereto, to the knowledge of the plaintiff and co-plaintiff herein, without any protests or objection from either of them or both.

5. Defendant denies paragraph 6 of the co-plaintiff?'s statement of claim and avers that the defendant was not a party to the case entitled Ofabir Yeboah II, Omanhene of Asikuma (plaintiff) and Nana Odoom Asante II, Omanhene of Breman-Esiam (defendant) and consequently the judgment or decision given in the said case is not binding on him.

6. Defendant in further answer to the allegation in paragraph 6 avers that the real issue between the parties to the suit referred to in that paragraph 6 of co-plaintiff?'s statement of claim was whether or not Bedum lands were within the Asikuma state, and had no reference whatsoever to any proprietary or allodial rights of the parties in the Bedum lands.

7. Defendant in further answer to paragraphs 6 and 7 of the co-plaintiff?'s statement of claim avers that both plaintiff and co-plaintiff are otherwise estopped by conduct or acquiescence from disputing the title of the defendant to the subject of dispute herein.

8. Defendant pleads ownership in virtue of an absolute gift of the said land in dispute to him from the stool of Ewumanso which gift was confirmed in writing in the year 1943.

9. Defendant pleads that neither the plaintiff nor co-plaintiff herein or both of them are entitled to the claim or relief sought herein.?" [p.309]

A short reply was filed joining issue generally and further denying:

?"That on 23rd April, 1943, or at any other time they (plaintiff and co-plaintiff) confirmed to the defendant?'s predecessor an absolute gift of the land in dispute; and they deny that their stool representatives or any person or persons acting for their stools jointly or severally ever executed any document in confirmation of the alleged gift of the land unto the defendant?'s predecessor, and say further that if any such purported document exists the same is a forgery and not genuine. And plaintiff and co-plaintiff will contend that if there was any such confirmation of the gift of the land as alleged (which is denied) or if there exists any such document as averred by defendant (which is denied) the defendant is estopped from alleging such a gift or from making use of such a document by reason of the judgment already pleaded in the statement of claim.?"

From the material portions of the pleadings filed on behalf of the parties which have been reproduced above, it appears clearly enough that the sole issue on which the claim to ownership or title to the parcel of land in dispute, is based, is the issue or question whether or not the defendant is estopped firstly per rem judicatam by the judgment of the former Judicial Committee of the Central Provincial Council of Chiefs dated the 23rd June, 1943, in the suit between Nana Ofabir Yeboah II, Omahene of Asikuma (plaintiff) and Nana Odoom Asante III, Omanhene of Breman-Esiam (defendant), confirmed by the judgment of a Divisional Court of the supreme Court dated the 7th March, 1945; and secondly, by the evidence of his predecessor-in-title in the said suit from alleging anything contrary to the evidence of the said predecessor-in-title in the suit. It falls therefore logically and necessarily to consider that issue of estoppel first.

The record of the whole proceedings and judgment of the action pleaded is in evidence as exhibit Z, and it becomes necessary to examine the same with some degree of care to ascertain the nature and scope of that action and the parties involved in, or who can in law be affected by, the decision. Upon examination of the record exhibit Z, first of all it is disclosed that the claim is for declaration of title by the Omahene of Asikuma, predecessor of the co-plaintiff as plaintiff, against the Omanhene of Esiam, to this identical Bedum land. The claim was in the following terms:

?"Plaintiff claims from the defendant the sum of 100 for declaration of title to that piece or parcel of land situated at Bedum . . . commonly known as and called Bedum land which is attached to the ancestral stool of the plaintiff occupied by and in possession of the chief of Bedum and his people, and which is bounded on the north by the Breman Asikuma stool lands, on the south by Kweku-Koom of Beseasi?'s land and by lands belonging to Yaw Anahuma and Egyir Ahuma of Esiam, on the east by Breman Asikuma stool lands and on the west by the land of Kodjo Esiam of Ayinasu.?"

In the course of their judgment upon this claim the members of the Judicial Committee set out the respective cases of the contending amanhin before them as follows:

?"The tradition put forward by the plaintiff is that an ancestor of his conquered the village of Adamangya and thereby came to assume authority over its lands which embrace the land in dispute, in consequence of which the Odikro of Bedum has from time immemorial paid tribute to the stool of the plaintiff until 4 years ago when the defendant ordered the Odikro of Bedum to cease to do so and inflicted a fine of 4 on him which led to the institution of this action. This ]p.310] story is supported by Kojo Hewyemi who gave evidence for the Odikro of Adamangya now Ewumaso and Joseph Henry Odoom who also gave evidence for the Odikro of Bedum who is in possession of the land in dispute. The case for the defendant is that the villages of Bedum (or Buadum and Ayinasu were founded by an ancestor of his called Kwakrampa, who made a gift of them to his children before his death. The defendant also contends that he has the right of title to the land belonging to the Odikro of Bedum for the mere fact that the Odikro is a sub-chief or safuhene of his.?"

After setting out the respective cases of the parties as above the Committee make findings and then conclude their judgment as follows:

?"The only question for us to decide is simply the question of ownership. We therefore find no difficulty in accepting the tradition given by the plaintiff. There will therefore be judgment for the plaintiff.?"

It appears clearly enough therefore from the foregoing, namely, the terms of the summons, the respective cases of the parties as set out by the committee, and the concluding or final part of their judgment, that the plea made on behalf of the defendant that the real issue between the Omanhene of Asikuma and the Omanhene of Esiam in the action before the Judicial Committee ?"was whether or not Bedum lands were within Asikuma State and had no reference whatsoever to any proprietary or allodial rights of the parties in the Bedum lands?" is completely misconceived and inaccurate.

There remains, however, outstanding for consideration next, the pleas that the defendant was not a party to, and, as I understand it, is not in such a position as to be bound by, the judgment. As to that plea in defence, it is of course true that the defendant, or rather his predecessor-in-title, was not a party to the action. On the face of exhibit Z and as pleaded in the co-plaintiff?'s statement of claim he was rather a witness for the plaintiff in that action. The question then is - and it is essentially a legal one ?- was his position, or more accurately the position of his predecessor-in-title at the time of that action, such as to make him affected and bound by the decision in the action or not. The answer to the question must be in the affirmative. The land law of this country has now evolved to the stage when a person in the position or situation in which the defendant?'s predecessor-in-title was in relation to that litigation, is considered by the law to be affected and bound by the result of the litigation, although he was actually not a party in the action. The position in which defendant?'s predecessor-in-title was, was that this same or identical claim (that the Omanhene of Asikuma, co-plaintiff?'s predecessor and the Odikro of Ewumaso, plaintiff?'s predecessor, were the reversionary or radical owners of the land having the reversionary or radical title outstanding and vested in them, and that the defendant?'s predecessor (Odikro of Bedum ) was the possessory or unsufructuary owner having the actual occupation and use of the land,) was to his knowledge, i.e. of the Odikro of Bedum, made by the Omanhene of Asikuma against the Omanhene of Esiam who was then also claiming ownership; that he the Odikro of Bedum did not then challenge the claim of the Omanhene of Asikuma but on the contrary expressly admitted it and acquiesced in it. [p.311]

The evolution of the principle may be said to have strikingly commenced with the case of Yode Kwao v. Kwasi Coker1 in which Deane, C.J. held as follows:

?"It is true that the action was nominally against Odonkor Nmate, but as I have pointed out and as the learned Judge found the title of Odonkor Nmate was identical with the title of the plaintiff. The plaintiff would know full well that the title of his syndicate was being called in question when Odonkor Nmate?'s title was challenged, and we find him giving evidence in support of Odonkor Nmate before Sir Branford Griffith just as we find Odonkor Nmate and Agbida?'s successor giving evidence on his behalf in this case.

Beyond giving evidence, however, he did nothing although he must have known full well that the question that was being litigated very deeply concerned him and that the title to his land was being affected. He was content to let Odonkor Nmate fight the battle while he kept in the background. But as was said by Cockburn, C.J. in Roden v. London Small Arms Co. 46 L.J. Q.B.D. 213, the doctrine is well known and recognised in Courts of law, that if you stand by and allow another to do an act in a particular way which you could have prevented at the time, you must be held bound by the act so done with your acquiescence; or again by Lord Cottenham in Leeds (Duke) v. Amherst (Lord) 16 L.J. Ch. 5.

?'If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain.?' The plaintiff therefore who took no steps to have himself joined with Odonkor Nmate as a defendant before Sir Brandford Griffith, although he knew perfectly well that any order affecting Odonkor Nmate?'s title would equally affect his, the two titles being the same, cannot now be heard to complain that he was not a party but must be taken to have acquiesced in the matter being decided in those proceedings.?"

The evolution of the principle advanced to a higher level in Richard Akwei v. Emelia Chicher Cofie2 in which Jackson, J. gave judgment against the plaintiff.

The circumstances were that in a previous action instituted by one Yusuf Faris against Chicher Cofie in respect of a building plot sold by Akwei to him, Akwei gave evidence to support Faris?' claim to title to the plot, but Smith , J. gave judgment dismissing Faris?'s claim in favour of Chicher Cofie. Thereupon Akwei himself instituted a fresh action to claim the plot from Chicher Coifie, and Jackson, J. held as follows:

?"Quite clearly Richard Akwei is estopped from further litigating this matter. Apart from decisions in the English Courts in the cases of Wytcherley v. Andrews (1871) L.R. 2 P D 327 and Wilkinson v. Blades (1896) L.R. 2 Ch. 788, I am bound by the decision given by the West African Court of Appeal in the case of Yode Kwao v. Kwasi Coker 1 W.A.C.A. 162.. I accordingly rule that in his action against Emilia Chicher Cofie the plaintiff Richard Akwei was estopped and I do dismiss his claim as set out in the writ?".

Akwei?'s appeal against the decision of Jackson, J. is reported under the title Marbell v. Akwei and Akwei v. Cofie3 . The appeal court in the course of its judgment dismissing the appeal said as follows: [p.312]

?"It is obvious that the appellant was vitally interested in the result of the case before Smith, J. It was the validity of the title he had conveyed to Faris which was the issue in that case, and although joinder under Order 3 rule 5 is discretionary, we have no doubt, if an application to be joined as a defendant [co-plaintiff rather] had been made by him, that it would have been granted by Smith, J.

It has been repeatedly held by this court and the courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result, and should not be allowed to re-open the case. As Lord Penzance said in Wytcherley v. Andrews L.R. 2 P D at p. 329, `That principle is founded on justice and common sense.'?' The Court looks to substantial justice and that which right reason requires.

It is true, as contended by Counsel for the appellant, that in Yode Kwao v. Kwasi Coker 1 W.A.C.A. 162 the Court was dealing with the question whether a judgment against one member of a class where the title and interest of all the members was identical, bound the other members of the class. The principles applied by the Court in that case seems to us equally applicable to the present one.?"

The evolution of the principle reached its highest level and zenith, and the principle received the hall-mark of highest authoritative approval in Ofori Atta II v. Abu Bonsra4. Lord Denning delivering the judgment of the Board of the Judicial Committee of the Privy Council on the 6th November, 1957, traced the history of the adoption by and the development in the Supreme Court of this country of the principle of estoppel by such conduct in relation to judicial proceedings as to make a person bound by the result of the proceedings as though he were actually a party to the proceedings, although in actual fact that person is not a named party on the record of those proceedings. The learned Lord of Appeal-in-Ordinary stated as follows:5

?"English law recognises that the conduct of a person may be such that he is estopped from litigating the issue all over again. This conduct sometimes consists of active participation in the previous proceedings, as, for instance when a tenant is sued for trespassing on his neighbour?'s land and he defends it on the strength of the landlord?'s title and does so by the direction and authority of the landlord. If the tenant loses the action the landlord would not be allowed to litigate the title all over again by bringing an action in his own name. On other occasions the conduct consists of taking an actual benefit from the judgment in the previous proceedings, such as happened in re Lart, Wilkinson v. Blades [1898] 2 Ch. 788. Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them fought out or at most giving evidence in support of one side or the other. In order to determine this question, the West African Court of Appeal quoted from a principle stated by Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P D at p. 328. The full passage is in these words:?-

?"There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed to reopen the case. That principle is founded on justice and common sense, and is acted upon in courts of equity where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the [p.313] parties seeking to disturb the arrangement, it will not allow the matter to be reopened?'. ?" . . . It seems to be the recognised thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins they reap the fruits of victory. If he fails, they fail with him and must take the consequences. It is now 25 years ago since the Chief Justice drew attention to this way of looking at litigation. See Yode Kwao v. Kwesi Coker 1 W.A.C.A. at p. 167, Appoh Ababio v. Doku Kango , 1 W.A.C.A. at p. 255. It has led the Court of Appeal in West Africa to look for a principle to meet the situation and they have found it in the principle stated by Lord Penzance. See Akwei v. Cofie, 14 W.A.C.A. 143?".

It would seem to be sufficiently clear therefore that the conduct of the defendant?'s predecessor-in-title in not intervening in that 1943 action before the Judicial Committee of the Central Provincial Council between the Omanhene of Asikuma on the one had and the Omanhene of Esiam on the other hand when each of them was claiming ownership or title to this same Bedum land in dispute, to the clear and undisputed knowledge of the said defendant?'s predecessor, would, standing alone by itself, be sufficient to make him affected and bound by the judgment in the action, and preclude him from now denying the ownership or title which the judgment awarded the Omanhene of Asikuma. A fortiori when the defendant?'s predecessor went to the extent of giving evidence on behalf of the Omanhene of Asikuma and expressly admitted, agreed and/or assented to the claim for ownership or title which the Omanhene of Asikuma then made in that action and the court dealing with the matter relied, inter alia, on the defendant?'s predecessor?'s admission and gave judgment for the Omanhene of Asikuma, it seems quite impossible in law now to permit the defendant to deny the ownership or title awarded the Omanhene in that action.

Counsel for the defendant has said that he was relying on the case of Abossey Okai II v. Ayikai II, in the headnote of which it is stated that: ?"In a civil case, admissions by a party are evidence of facts asserted against, but not in favour of such party. But they are not estoppels or conclusive against the party against whom they are tendered.?" But as is explained in the course of the judgment in the case by reference to a passage in Halsbury?'s Laws of England, (2nd ed.) Vol. 13, the proposition stated in the headnote relates only to admissions made outside the course of judicial proceedings. In the course of the judgment in the case Beoku-Betts, J. of Sierra Leone delivering the judgment said as follows:

?"The place of admissions in civil cases is admirably stated in Halsbury?'s Laws of England 2nd Edition, Vol. 13 pages 574 and 575 thus?"

?'In civil cases, statements made otherwise than by way of testimony in Court by a party to the proceedings are evidence of the truth of the facts asserted against, but not in favour of such party . . . As the value of an admission depends upon the circumstances in which it was made, evidence of such is always receivable to affect the weight of the admission. Thus the party against whom it is tendered may show that it was made under an erroneous view of the law, or in ignorance of the facts, or when his mind was in an abnormal condition.?" [p.314]

Attention is particularly drawn to the words in the above passage:

?"otherwise than by way of testimony in Court?"?-to stress the point that the submission of counsel for defendant was completely misconceived.

In any case the point is that the admissions in court of the defendant?'s predecessor-in-title do not stand alone but have been employed and used by a court of competent jurisdiction to support a judgment which is now pleaded as operating as estoppel per rem judicatam, and the plea, I think, has to be sustained.

In so far, therefore, as plaintiff and co-plaintiff claim declaration of ownership or title to the Bedum land the subject-matter of the action and described in the writ of summons, the defendant by the conduct of his predecessor-in-title Ohene Kojo Buabin and his elders and councillors, in relation to the action Nana Ofabir Yebuah II, Omanhene of Asikuma v. Nana Odoom Asante III, Omanhene of Esiam, which is pleaded, must be held precluded from denying the claim of the plaintiff and co-plaintiff.

But the plaintiff and co-plaintiff do not only claim declaration of their bare title to the land but claim further that:

?"The defendant and his people, servants, agents, tenants and workmen and all others claiming rights of access to the said piece or parcel of land derived from the defendant . . . to be restrained on oath from interfering or in anyway dealing with the land the subject-matter of the suit?".

The statement of claim did not omit this second claim or relief which appears on the face of the writ of summons transferred from the native court. Had the statement of claim omitted it, it could be held that that second claim or relief had been abandoned: see Cargill v. Bower7 in which, although the writ was indorsed with a claim for rescission of a contract, because that claim for rescission was omitted from the statement of claim it was held that on the pleadings as they stood the plaintiff could not claim or obtain the relief of recession of contract.

On the contrary the statement of claim expressly adopted this second claim also when it concluded with the words: ?"Wherefore the plaintiff claims as per his writ of summons.?" From the terms of that second claim that defendant and all his people claiming right of access (or entry) into the said parcel of land through him be restrained on or by oath from interfering or in anyway dealing with the land, it seems as though the plaintiff and co-plaintiff are claiming some occupational or possessory interest and/or right in the land. If that be so, it is clear the claim is completely misconceived.

The authorities are many that where an owner has made a customary grant whereby he has conferred possessory or usufructuary interest right or title on another, he, the owner of the reversionary or radical title has no right to interfere with the possessory or usufructuary owner?'s occupation and use of the land. One of the earliest cases is Abobi v. Solomon8 in which the possessory or usufructuary owner successfully main-[p.315] tained an action against the stool which was the reversionary owner. There is next the case of Lokko v. Konklofi9 in which Sir Brandford Griffith stated as follows:

?"In the present case there has been continuous occupation for about 40 years and the occupier has been permitted to build a village on the land and to make permanent farms. The present is like thousands of similar cases. Stool land has been settled by a father, the son (or nephew) has succeeded and has built a village and made a home on the land; there has been no express alienation by the Stool, but there has been recognition of the exclusive occupation. Suppose the Stool fell into debt?- I can quite understand that Konklofi (the occupier of the land) would be expected to share the debt for he is subject to the Stool; but if the Stool land were to be seized in execution, can there be a doubt that Konklofi could successfully interplead? As soon as the Court ascertained that he and his family had had continuous occupation for 40 years or over, and that he had permanent cultivation upon the land, it would decide that he had appropriated that portion of the Stool land to himself with the tacit consent of the Stool and that it was no longer (completely) Stool property but his own (usufructuary) property.?"

There is further the consolidated Kokomlemle cases Golightly Anor. v. Ashrifi Ors. and 24 other actions10 in which Jackson, J. in the course of his voluminous judgment made reference to one of the characteristics of a possessory or usufructuary interest in land and said as follows:

?"In Quarm v. Yankah Anor. (1 W.A.C.A. 80) it was held that Stool land in the possession of a subject of a Stool with the consent or by the grant of such Stool, cannot be alienated by the Stool to a stranger without the consent of the subject in possession of the land, and is an authority which governs the rights of a subject of a Stool when it is sought to alienate Stool land, a part of which is in his possession.?"

Next may be mentioned the case of Ohimen v. Adjei11 in which in the course of an erudite judgment by Ollennu, J. he refers to the acquisition of the type of usufructuary interest with which we are dealing, and touches on some of its characteristics as follows:

?"The stool holds the absolute title in the land as trustee for and on behalf of its subjects, and the subjects are entitled to the beneficial interest or usufruct thereof and have to serve the stool. Each individual or family is regarded in the broad sense as the owner of so much of the land as it is able by its industry or by the industry of its ancestors to reduce into possession and control. The area of land so reduced into the lawful possession of the individual or family, and over which he or they exercise a usufructuary right, is usually called his property. It cannot, save with the express consent of the family or individual, be disposed of by the stool. The individual or family may assign [transfer] or dispose of his interest in the land to another subject of the stool and the land may be sold in execution of a decree against the individual or family, as the case may be, without the consent of the stool. But he may not dispose of the stool?'s absolute ownership in it to strangers without the consent and concurrence of the stool.?"

Such being then the clearly evolved principles applicable, it is clear the plaintiffs are not entitled to the order to restrain the defendant and his people which they claim by their writ and statement of claim. [p.316]

It remains to deal with exhibit 1 which the defendant has pleaded as confirming a gift of the land to himself and his people and the plaintiffs have challenged as a forgery. I do not believe it is, and I am satisfied it is not a forgery. The intrinsic and circumstantial evidence points to the document having been made by the representatives of the Omanhene of Asikuma and the Ohene of Ewumaso who were authorised and sent to prosecute the 1943 action against the Omanhene of Esiam for the then Ohene of Bedum as an inducement to lend his support to them in that litigation and to come forward either himself or by a representative to give evidence on their behalf. The date of the document, the 23rd April, 1943, after adjournment of the case by the Judicial Committee on the 20th April, 1943 for hearing to commence on the 14th May, 1943, is most significant.

But I am satisfied the document fails to achieve the object and purpose for which it was intended, and that a valid out-and-out gift could have been made only by the two chiefs concerned publicly, in the presence of witnesses with the concurrence of the elders and councillors of their stools, and with all the customary rites and ceremonies incidental to the formal conveyance and/or transfer of land by way of gift.

However, the possession of such a document signed by such accredited representatives of the plaintiff and co-plaintiff may well have misled the defendant and his people to think they had acquired absolute title to the land, and I find that document to be the excuse and justification for what would otherwise have been an inexcusable denial of the title of the plaintiffs. If therefore the second claim of the plaintiffs is based or founded on the defendant?'s attitude of denying their title, although it is not so stated, I find the document exhibit 1 to be an extenuating circumstance which justifies me in refusing to make the order to restrain the defendant and his people, which is sought by the writ and statement of claim.

In conclusion I give judgment decreeing ownership and/or title to the Bedum land in dispute in favour of the plaintiff and co-plaintiff. I however dismiss that part of the claim for an order to restrain the defendant and his people from dealing with the land, because no good or sufficient cause or ground for making such an order has been established before me.

The plaintiff and co-plaintiff have been successful on the major issue and will have two-thirds of the assessed or taxed out-of-pocket costs. I assess plaintiffs?' counsel?'s costs at 100 guineas.

Decision

<P>Judgment for plaintiffs on the issue of title.</P>

Plaintiff / Appellant

E. Akufo-Addo for the plaintiff and co-plaintiff

Defendant / Respondent

C.F. Hayfron-Benjamin

Referals

(1) Yode Kwao v. Kwasi Coker (1931) 1 W.A.C.A. 162

(2) Richard Akwei v. Emelia Chicher Cofie, Land Court, Accra, 12th January, 1951, unreported

(3) Marbell v. Akwei, and Akwei v. Cofie (consolidated) (1952) 14 W.A.C.A. 143

(4) Ofori Atta II v. Abu Bonsra II [1958] A.C. 95, P.C.

(5) Abossey Okai II v. Ayikai II (1946) 12 W.A.C.A. 31

(6) Cargill v. Bower (1878) 10 Ch.D.502

(7) Abobi v. Solomon 1905 Full Court, unreported

(8) Lokko v. Konklofi (1907) Ren. 450

(9) Golightly & Anor. v. Ashrifi & Ors. Land Court, Accra 31st May, 1951  unreported

(10) Ohimen v. Adjei (1957) 2 W.A.L.R. 275.

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