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BOATENG v. NTIM AND OTHERS


  • appeal
  • 1961-11-16
  • HIGH COURT
  • GLR 671-675
  • Print

OLLENNU, J.


Summary

Customary law?-Sale of land?-Whether failure to perform guaha necessarily invalidates sale?-Absence of concurrence to sale of local council?-Local Government Ordinance, Cap. 64 (1951 Rev.) s. 75 (1).Estoppel?-Laches?-Matters to be proved.

Headnotes

About twenty years ago the plaintiff bought some land from the Bepong stool. A deed, called by the parties a deed of exchange was executed in respect of the transaction. The deed was not submitted to the local council in charge of the area for its concurrence. The plaintiff set his sons to work on a portion of the land. Shortly afterwards a large area of land including the one allocated to the plaintiff was demarcated a forest reserve. Upon representations made by the plaintiff the Forestry Department later released the plaintiff's portion of land to him. The defendants, subjects of the Bepong stool, went on to portions of the plaintiff's land and began to make farms thereon. Upon being challenged by the plaintiff, they alleged that their holdings were given to them by the Bepong stool. The plaintiff sued them for recovery of possession and damages for trespass. The Bepong stool joined the action as co-defendant. The trial local court dismissed the plaintiff 's action on the grounds that (a) the sale to the plaintiff is invalid because the guaha custom was not performed; (b) the deed executed in favour of the plaintiff is void because it did not receive the concurrence of the local council, as required by section 75 (1) of the Local Government Ordinance, Cap. 64 (1951 Rev.); and (c) the plaintiff is estopped by laches from disturbing the defendants. The plaintiff appealed.

Judgement

APPEAL from a judgment of the West Kwahu Local Court dismissing the plaintiff's action for recovery of possession of land and damages for trespass.

This is an appeal from a judgment of the West Kwahu Local Court delivered on the 23rd March, 1961. The claim is for recovery of possession and damages for trespass. The land is a portion of the Bepong stool land. The co-defendant is the occupant of that stool.

The case of the appellant, plaintiff in the local court, is that the said land is a portion of land, sold and conveyed to him by the Bepong stool by customary law about 20 years ago; that upon the said sale he entered into possession and caused his sons to farm a portion of it. And the case for the defendants is that the portions of the land which they occupy were granted to them by the co-defendant's stool, the Bepong stool, as subjects of the said Bepong stool.

The local court magistrate found as a fact that the Bepong stool granted the said land to the plaintiff and that the plaintiff and his people are in possession of a portion of it. He found at the same time that the said stool made grants of portions of the same land to the defendants. The local court however dismissed the appellant's claim on three grounds, namely: (1) the sale to the plaintiff is not valid because the guaha custom was not performed; (2) a deed of exchange executed by the co-defendant, the Beponghene, is null and void because it did not receive the concurrence of the local council; and (3) the plaintiff is estopped by his acquiescence from denying the title of the defendants.

On the question of the performance of the guaha custom, evidence was led by the plaintiff that upon the sale of the land to him he performed [p.673] all the necessary custom appertaining to a valid sale, including the guaha custom, and that at the request of the stool the guaha custom was performed in the house of Asiedu Kwaku, the fourth defendant, who led the party that demarcated the land for him, the plaintiff. The fourth defendant was in court and heard the plaintiff give that evidence, but he, the fourth defendant, did not give evidence and did not in any way refute that evidence that the guaha custom was performed and that the performance took place in his, fourth defendant's house. The presumption therefore is that that evidence of the plaintiff is true. Opoku P.W.1, an elder of the Bepong stool did say under cross-examination that guaha custom was not performed, but when that evidence of his is read together with other evidence he gave, i.e. that the demarcation of the land was made by the said Asiedu, the fourth defendant, together with three others, not including himself, and that he inspected the demarcation a week later upon directions of the Beponghene, it becomes clear that he is not in a position to contradict the evidence of the plaintiff on that issue, and that his evidence that guaha had not been cut is based upon the fact that none was performed in his presence. The only other witness who spoke about the guaha custom is the co-defendant, the present occupant of the Bepong stool. His evidence on that point is that he was told; he did not say who it was that told him that guaha had not been performed, and he did not produce any witness who knew of it of his own knowledge. Therefore the evidence of the plaintiff that guaha was performed stands uncontradicted. But that is not all.

The most important thing in sale of land by customary law is that as much publicity as possible should be given to the fact of the transfer of ownership from the vendor to the purchaser. The performance of the guaha custom is part of the acts of publicity. Therefore where there is sufficient publicity of the transfer by unequivocal acts on the part of the transferor, that would be sufficient evidence of a concluded valid transfer by customary law, even if there is no clear evidence of the performance of guaha custom. Now in this case there is a most important piece of publicity, and it is this; a large area of land including the one demarcated for the plaintiff was declared a forest reserve not long after the transaction between the stool and the plaintiff. Later, at a meeting with the Forestry Department at the offices of the District Commissioner at Mpraeso, the stool requested the Forestry Department to release that land out of the reserve to the plaintiff and accordingly the land was released to the plaintiff. That evidence shows sufficient publicity that ownership of the land has passed from the Bepong stool to the plaintiff. In my opinion that evidence coupled with the possession of a portion of the land by the plaintiff and the evidence of the plaintiff of the performance of guaha, provide ample proof of transfer of ownership of the land from the Bepong stool to the plaintiff. The case of Tei Angmor & Co. v. Yiadom III & Anor.1 cited by counsel for the respondents is not applicable because in that case the plaintiff sought to prove the performance of guaha by a [p.674] document which, apart from the defects it had, was inadmissible. Consequently there was a complete absence of any evidence of the performance of guaha. The position is quite different in this case.

Section 75 (1) of the Local Government Ordinance,2 upon which the local court magistrate further based his finding that the sale to the plaintiff is of no effect is as follows:

?"Any disposal of any interest or right in land which involves the payment of any valuable consideration or which could, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, which is made ?-

(a) by a Stool; or

(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration;

shall be subject to the concurrence of the Urban or Local Council, as the case may be, for the area concerned, and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.?"

The local court magistrate erred in the views he expressed on this section of the Ordinance as it affects this case. Firstly the sale and transfer upon which the plaintiff based his case took place long before the said Ordinance came into force, the said transaction cannot therefore in any way be affected by the Ordinance, since the Ordinance is not retrospective in its application. Secondly, the document is not a transfer which involves payment of money or of any valuable consideration, therefore the absence of concurrence by the council does not affect its validity. Furthermore, the evidential value of the deed of exchange, exhibit C, is the admission made therein that the plaintiff "is the owner according to native customary law of the land described in the second schedule thereto".

Next is the question of acquiescence. The onus of proving acquiescence in this case lies upon the defendants and co-defendant. For a plea of acquiescence or laches to succeed, it must be proved among other things (1) that the party pleading or relying upon it bona fide believed that he had good title to the land when in fact he had none, (2) that the person sought to be estopped had knowledge of the error on the part of the person pleading the estoppel, and (3) that the party pleading it had fraudulently been led by the silence or active encouragement of the person sought to be estopped, to spend money to improve the property or in respect of the property.

Far from proving that the defendants honestly believed that they had acquired good title to the land, the evidence shows that the fourth defendant could not have had such an erroneous belief in his title to the land, it was he who demarcated the land for the plaintiff and he therefore knows the extent of the plaintiff's land, and he is the very person who demarcated a portion of the same land for the other defendants. He was therefore seized of knowledge that he has no title to the land. [p.675]

Again the second, third and fourth defendants did not give evidence on their behalves and did not tender any evidence to show that they had honest belief that they acquired title to the land. They led no evidence that the plaintiff knew of their presence on the land but took no steps to correct their erroneous belief in their title, or that he fraudulently encouraged the defendants in their honest mistake. The only evidence on the record as to the plaintiff's knowledge that the defendants had come on the land is the evidence given by the plaintiff himself that it was only four years ago that he got to know that the defendants had entered the land and started to cultivate portions, and that thereupon he immediately went to the land and informed them of his ownership of the same and requested them to leave it, and he also drew the attention of the co-defendant to the trespass and asked him to request his people to leave the land. The plaintiff said he waited for some time but the defendants refused to leave so he wrote to the fourth defendant asking him to instruct the trespassers to leave the land, but in reply Asiedu, the fourth defendant brought word to say that the people would not vacate the land but were prepared to litigate with him the plaintiff over the land. The first defendant admitted that the plaintiff did tell him that the land belonged to him, and requested him to remove from the land, but refused to remove from the land, and gave as his reason: "because I and other defendants have cultivated farms and built villages on the land since seven years ago and my cocoa farms are beginning to bear". The first defendant continued: "On the next day I went to inform Beponghene, the co-defendant herein about it and he told me that it was he himself who granted the land to us, i.e. the defendants herein, and that we should carry on with our farms.?" The co-defendant too admitted that the plaintiff did bring the matter to his notice and further that the defendants brought to him a letter the plaintiff wrote to them giving them notice of his ownership of the land and requesting them to vacate the land. That evidence shows that the plaintiff acted promptly but the defendants were prepared to take risks. In those circumstances there are no bases upon which it could be said that the plaintiff has been guilty of conduct amounting to fraud upon the defendants to make ill-gotten gain. Therefore the local court erred in holding that the plaintiff is estopped by his conduct from asserting his title to the land and claiming recovery of possession.

The local court having misdirected itself on each of the grounds upon which its judgment is based, the said judgment cannot stand. The appeal is allowed, the judgment of the local court is set aside including the order as to costs, any costs paid to be refunded. For that judgment the following is substituted: there will be judgment for the plaintiff against each of the defendants and the co-defendant for recovery of possession of the land as described in the writ of summons, and for G50 damages for trespass. The appellant will have his costs in this court fixed at 50 guineas and his costs in the local court fixed at G20.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

Dr. de Graft Johnson

Defendant / Respondent

A. Asafu-Adjaye

Referals

Tei Angmor & Co. v. Yiadom III & Anor. [1959] G.L.R. 157
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