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ATTRAMS AND OTHERS v. AFRIYIE II AND 5 OTHERS


  • New
  • 1962-04-18
  • HIGH COURT
  • 1 GLR 283-286
  • Print

DJABANOR, J.


Summary

Land law?-Protection under the Farm Lands (Protection) Act, 1962 (Act 107)?-Acquisition "in good faith"?-Whether "good faith" need exist throughout period of holding.Land law?-Compensation payable under Farm Lands (Protection) Act, 1962 (Act 107) s. 2 (3).

Headnotes

Between 1950 and 1952, the second, third, fourth, fifth and sixth defendants, all stranger-farmers, acquired from Nana Owusu Afriyie II, occupant of the Kyempo stool and sixth; defendant herein, pieces of forest land for farming. They began to make their farms almost as soon as they had taken their several grants. The plaintiffs claimed that the grants to the stranger-farmers formed part of a larger area of land which they, as a syndicate, had purchased from the Kyempo stool as far back as 1927. They sued the defendants for declaration of their title, recovery of possession, and damages for trespass. The defendants denied the alleged sale. The said defendants (except the fourth defendant who did not take part in the proceedings) claimed that in any case they are protected under the Farm Lands (Protection) Act, 1962 (Act 107), because, they claimed, they acquired their various portions in good faith without any knowledge of the prior claim of the plaintiffs, and that they commenced their farms almost immediately after the acquisition and certainly within the eight-year period prescribed by section 2 of Act 107.The court found for the plaintiffs on the question of title. On the application of Act 107,

Judgement

ACTION for declaration of title to land and for recovery of possession. This report deals only with that portion of the judgment relating to the Farm Lands (Protection) Act, 1962, Act 107.

[His lordship reviewed the evidence in detail and found in favour of the plaintiffs on the issue of title. On the question of the application of Act 107 and the protection it afforded to the second?-sixth defendants, his lordship continued:] I must now come to determine the effect of the Farm Lands (Protection) Act, 1962.1 The purpose of that Act is to protect farmers whose titles to land are found to be defective. Section 2 is the most relevant clause. Section 1 does not apply. Section 2 (1) is in the following terms:

"Where a farmer has, in good faith, at any time after the thirty-first day of December, 1940, and before the commencement of this Act, acquired any land by customary law or otherwise in a prescribed area for purposes of farming and has begun farming on that land within eight years from the date of such acquisition, this section shall notwithstanding any defect in the title to the contrary, operate to confer valid title on such farmer:

Provided that the land in question had not been farmed by any other person for a period of eight years previous to the acquisition by the farmer."

I must first observe that if the defendants are seeking the protection afforded by this section they must bring themselves within its ambit. They must satisfy the prerequisites. In that regard the first prerequisite is that they must show that they acquired the land by customary law or otherwise. On this there is ample evidence. Next they must show that they acquired the land in good faith. It is suggested by counsel for the plaintiffs that this good faith must exist not only at the time of the acquisition but also continue; and that if it be shown that this good faith ceased to exist at any time subsequent to the date of the acquisition, from that date the protection ends, and the land cultivated since this date should not be protected. Unfortunately, even if I were to hold so, I would have to ascertain the extent of land actually farmed at the date the good faith ended. There is no evidence in that regard here. I think it would be impossible to ascertain. I think that the good faith must exist at the date of first acquisition only. In this connection the evidence adduced by the defendants is to the effect that when they first went on to the land it was a large forest with no farms any where near them. The Kyempo stool did not tell them that the land had been previously sold to the plaintiffs, and they did not know. If Tetter Kwao warned them at all, counsel contended, he must have done so sometime after they had established themselves on the land. I am certain that if they had been told that the land had been previously sold to the plaintiffs the defendants would not have agreed to acquire same. As one of the witnesses, Ampadu Darko, said, farmers do not like litigation, and would have refused to acquire the land in those [p.285] circumstances. I am prepared to hold that the acquisition was made in good faith. I also hold that giving it its ordinary meaning the section can only be interpreted to mean that any farmer who has acquired the land in good faith and has begun farming on that land within eight years from the date of such acquisition can be protected. The key word there is ?"acquired", and that is not a continuous process. I hold that the defendants satisfy these conditions in section 2 (1). But there is a proviso to the section. It says: "Provided that the land in question had not been farmed by any other person for a period of eight years previous to the acquisition by the farmer". What does this mean? What is the land in question in this case? Is it the lands of the respective defendants herein or the land claimed by the plaintiffs? If it is the latter then the defendants cannot be protected because the plaintiffs had been farming on portions of the land for a period of eight years previous to the acquisition by the farmer. In my view the correct interpretation is that the land in question must not have been farmed by any other person for a period of eight years previous to the acquisition by the farmer of his land. It is his own land that must not have been farmed. In the result 1 think that the defendants have brought themselves under the subsection and they are to be protected.

The protection that is to be afforded them is contained in section 2 (2) and it is worded as follows:

"Where there are any proceedings for vacant possession on the ground that a person other than the farmer who acquired the land under the preceding subsection is entitled to the land or proceedings have been instituted or are instituted by such farmer on the ground that his title to the land is being in any manner challenged, the Court, where it considers that if this Act had not been passed a possession order would fall to be made by reason that the acquisition taken by the farmer did not operate to confer on him the title to the land, but that to make an order would cause hardship and injustice to the person against whom it would fall to be made, may, instead of making the possession order, make an order providing that the acquisition by the farmer shall be deemed for all purposes to have operated to confer on him the title to the land."

I have already found that the plaintiffs are entitled to the land, and if this Act had not been passed I would have given them possession. But I have the power under this subsection not to make that order for possession if I find that to make such an order would cause hardship and injustice to the defendants. That on the evidence before me, I am bound to find. This subsection does not concern itself with hardship to the rightful owner. He gets his compensation by the next subsection. Evidence was led by the defendants and their witnesses that they have expended much money on the land and Terkyi has founded a village with many houses and a school and church. I believe them. I will therefore make an order conferring title on them.

But at this point I am faced with one difficulty. If I am to confer title on the defendants, over what extent of land am I to declare their usufructuary title. Surely in this regard, as in all land causes, the defendants are only entitled to such a declaration if they describe their lands in accordance with the well-known principles. In support of this I refer to the authority of Chief Sakpaku and Ors. v. Chief Ahiaku and Ors.2 and Baruwa v. Ogunshola and Ors.3 I cannot see my way clear to grant them title over an indefinite area of land. If I did so what extent of land are they going to take? It is only the third defendant who has described his boundary and as far as he is concerned he will have his usufructuary right over that [p.286] parcel of land as described conferred on him, and I do so order accordingly. That piece of land is described as having boundary with the farms of Kwabena Adade, Kwaku Obeng, Kwasi Simpe and Abena Anyei. I further declare that in view of the declaration made in favour of the plaintiffs, the third defendant will attorn tenant to them, no more to the Kyempo and Kokofu stools, for these lands have ceased to be their stool lands. The terms of tenancy I do not think it is for me to dictate, but I should think that it would be on the same terms as existed between the Kyempo and Kokofu stools and the third defendant.

The third defendant said he paid G30 and drink to the first defendant's predecessor before he was granted the land. In that case G30 and tribute was the consideration paid for the land. I will therefore award a compensation in terms of subsection (3) of section 2 of Act 107 of G60 payable by the third defendant to the plaintiffs. I do so because it is obvious that otherwise it would be unjust for the plaintiffs who have paid money in 1925 when money had more value than now, for this land.

For the rest of the defendants, I am disposed to refuse to make any possessory order in their favour for the reason that I do not know precisely over what land such an order is to take effect. But in order to curtail any further litigation on the land and in view of the mischief which the Act is intended to provide for, and bearing in mind from exhibits one, two and three, that the actual tenant farmers are many, more than one hundred, and that these may all at one time or other seek the protection under this Act, I shall declare usufructuary title over their respective lands to the second and fifth and sixth defendants also. The land of the second defendant to comprise the land in respect of which exhibit two was executed in favour of Opanin Ampadu Darko. In that regard in view of the hardship and injustice of this order on the plaintiffs I will award to the plaintiffs compensation of G600 against the second defendant (and his syndicate of farmers) because they paid an aggregate of G400 to the first defendant's stool.

Similarly I will award compensation for the plaintiffs against the fifth defendant G50 in respect of his land measuring seven by fifteen ropes of 24 fathoms each rope. I will also award to the plaintiffs compensation of G50 against the sixth defendant in respect of his land measuring six by eleven and a half ropes of 24 fathoms each rope. All the defendants (except the first defendant) will attorn tenants to the declared owners of the land, i.e., the plaintiffs. Any new tenant put on the land since the commencement of this action cannot have acquired it in good faith. They are hereby ejected.

The plaintiffs will have the costs of this action assessed at 150 guineas against the first defendant; against the second and fifth defendants assessed at 150 guineas; and against the third and sixth defendants assessed at 150 guineas. Other costs to be taxed. The first defendant to pay one-third, the second and fifth defendants to pay one-third, and the third and sixth defendants to pay one-third thereof.

The injunction order dated the 26th September, 1961 is hereby discharged. The receiver and manager to pay the proceeds of cocoa from each party's farm to him. The proceeds from timber to be paid to the plaintiffs.

Decision

<P>Judgment for the plaintiffs.</P>

Plaintiff / Appellant

J. N. Heward-Mills and G. Davey

Defendant / Respondent

N. Y. B. Adade for the first, third and sixth defendants. Jones for the second and fifth defendants.

Referals

(1) Chief Sakpaku and Ors. v. Chief Ahiaku and Ors. (1942) 8 W.A.C.A. 76

(2) Baruwa v. Ogunshola and Ors. (1938) 4 W.A.C.A. 159

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