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GAWU III AND ANOTHER v. PONUKU


  • New
  • 1960-04-21
  • HIGH COURT
  • GLR 101-104
  • Print

OLLENNU, J.


Summary

Land?-Claim for declaration of title and recovery of possession?-Claim by land owner against adjoining owner?-Necessity of establishing identity of land and boundary?-Estoppel by acquiescence.

Headnotes

In this action, the plaintiff sought a declaration of title to a piece of land, recovery of possession, demarcation of boundary between his land and that of defendant, and in the alternative, damages for trespass. The land in question was bounded on the one side by the plaintiff 's land and on the opposite side by land belonging to the defendant. The evidence established that the defendant had cultivated the land for nearly eighteen years and that the plaintiff was aware of this but had not questioned his right to do so.The local court, which tried the action, held that even assuming the plaintiff had proved title (which he had not), he was estopped by acquiescence from recovery of possession of the land.

Judgement

APPEAL from a decision of the West Akim Abuakwa Local Court "A" on November 21, 1959 in favour of the defendant in an action for declaration of title to land, recovery of possession, demarcation of boundary and in the alternative damages for trespass. The facts are fully set out in the judgment.

In this appeal from a judgment of the West Akim Abuakwa Local Court "A" delivered on the 21st November, 1959 it is contended on behalf of the appellant who was plaintiff that the judgment is wrong in two respects, namely, (a) that the local court wrongly held that there had been acquiescence on the part of the plaintiff in trespass committed by the defendant and therefore he was not entitled to an order for recovery of possession, and (b) that the local court was wrong in making an order for recovery of possession in favour of the defendant-respondent who had not counter-claimed.

Learned counsel argued that for acquiescence to operate as an estoppel it must be shown to be laches amounting to fraud, and cited the case of Willmott v. Barber (15 Ch.D. 96) which was relied upon by the West African Court of Appeal in the case of Abbey v. Ollennu (14 W.A.C.A. 567) in support of that submission. As a proposition of law, that submission is sound; and that appears to be the principle applied by the local court in this case.

For a proper appreciation of my decision in this case, both as to the facts and the law, it is necessary to refer to the writ of summons in extenso. The said writ is as follows:

"The plaintiffs as joint customary inheritors to and of real properties left by the late Kofi Koogblame (deceased) claim against the defendant for declaration of right title and interest to, and recovery of possession of all that piece or parcel of land with cocoa farm thereon situate lying and being at Yunse near Asamankese which form part and parcel of three native ropes of 24 fathoms each of land originally owned by the late Kofi Koogblame, plaintiffs' deceased father and uncle.

The property in dispute is bounded on one side by plaintiffs' property, on one side by Tetteh Kutor's property, on one side by Kwaku Ponuku's (defendant's) property and on one side by Kwadjo Amaning's property.

2. Order of court for straightening and rectification of boundary line between the properties of plaintiffs and defendant by court.

In the alternative plaintiff claims 100 damages from the defendant".

Analysis of this writ of summons reveals the following averments or statements of acts:

1. that the defendant is in possession of the piece or parcel of land with cocoa farm thereon described in the writ of summons;

2. that the said farm forms boundary with farm or land belonging to the plaintiffs on one side, and with farm or land of the defendant on the opposite side; and it contains a prayer for:

[p.103]

(a) declaration of title to the said piece or parcel of land,

(b) an order for demarcation of boundary between adjoining lands of the plaintiffs and the defendant, and

(c) in the alternative damages for trespass.

For a plaintiff claiming declaration of title to an area of land to succeed, he must establish the identity of the land which he claims by positive evidence and where as in this case he admits that his land forms boundary with land belonging to the defendant, he cannot succeed upon his claim for declaration of title, for recovery of possession and for damages for trespass, unless he is able by preponderance of evidence to establish clearly the line of demarcation marking the boundary between his land and the land which he admits is property of the defendant, and show that the land in dispute is on his side of that boundary.

There is not a tittle of evidence in the whole of the proceedings showing what the plaintiff alleges to be the boundary between his land and the land of the defendant. Indeed his claim for straightening the boundary between his land and that of the defendant, is an implied admission that he is not certain of what that boundary is.

There being total absence of evidence of a boundary between the plaintiff's land and that of defendant's land, there is nothing upon which the trial local court and indeed this court can hold that the plaintiff satisfactorily established that the land in dispute is identified with or forms part of land which belongs to the plaintiff. For that reason alone the local court should have dismissed the plaintiff's claim and entered judgment for the defendant without doing anything further. However, as it would appear, the local court out of abundant caution, went a step further upon a hypothetical assumption that the boundary between the land of the plaintiff and the defendant was known, and the land in dispute proved to be part of the plaintiff's land; they then held that even if the land in dispute belonged to the plaintiffs they were satisfied upon the evidence that the plaintiffs had been guilty of laches and were estopped from now claiming recovery of possession of that land.

As stated earlier, learned counsel for the plaintiffs-appellants has contended that the evidence on the record as to the conduct of the plaintiffs in standing by does not amount to fraud which should deprive them of their title to the land and of their right to recover possession of it. In support of this learned counsel has referred to pieces of evidence, led on behalf of the plaintiffs, as to the plaintiffs and members of their family challenging the defendant at the time that he began to cultivate the land in dispute and trying to stop him from trespassing on their family land.

Having carefully studied the record of appeal and listened to the arguments advanced by learned counsel for the appellant, I would say that this submission is not borne out by the evidence on the record. The evidence reveals that the cocoa farms in dispute, as seen by the members of the local court on inspection of the land are nothing less than twenty years old, the cocoa trees being twelve to fifteen inches in circumference; while the evidence as to opposition raised to the defendant cultivating the farms, apart from being confused, shows that they could not have been [p.104] raised more than one and half to four years before the action was commenced. In other words, the farms had been in existence for about sixteen to eighteen and a half years before the plaintiffs began to question the defendant's right to make them.

Upon these facts the only reasonable conclusion that any court of justice is bound to come to is that the plaintiffs who were in occupation of the land adjoining the land in dispute, sat by, saw the defendant enter upon the land in dispute about twenty years ago and acquiesced in his expending labour and money to develop it for about a period of sixteen to eighteen years in the honest belief that if formed part of his land; and when the farms had become fully established prosperous farms, they now come forward to say that the land belongs to them and they must recover possession of the farms made thereon by the defendant. If this is not conduct amounting to fraud, I do not know what is. In this connection I will refer to the case of Thompson v. Mensah (3 W.A.L.R. 240), where the principle of customary law regarding such conduct is clearly dealt with.

Therefore, even if the plaintiffs succeed in establishing their title to the land in dispute, their claim to an order for recovery of possession should nevertheless be dismissed, they having been guilty of laches.

The submission of learned counsel for the appellant that the local court was wrong in making an order in favour of defendants for recovery of possession is also misconceived as already stated. The writ of summons shows that the defendant was in possession of the farms at the time of the issue of the writ, and the evidence also shows that he has been in such possession for about twenty years. The claim is for an order for recovery of possession from him; in other words an order that he should be ejected from the land. Upon the facts before them the local court simply said that he should remain in possession. In other words they said that the application for an order for recovery of possession is refused, the defendant should remain where he is, and both parties should remain in statu quo; nothing more. There can be no quarrel with the order of the local court namely: "As a result this court can never do anything than enter judgment for the defendant to possess the land he has cultivated."

The procedure regulations by which the native courts are governed require that when a plaintiff has failed to prove his case, judgment should be entered for the defendant. This final order of the local court referred to, in my opinion, complies with these regulations. The court entered judgment for the defendant and said that he should not move from the land. It is by no means an order in favour of the defendant to recover land in possession of the plaintiff or of a third party.

For these reasons the appeal is dismissed.

Decision

<P>Appeal dismissed.</P>&nbsp;

Plaintiff / Appellant

Kom

Defendant / Respondent

Doe

Referals

(1) Willmott v. Barber (1880) 15 Ch.D. 96;

(2) Abbey v. Ollennu 14 W.A.C.A. 567;

(3) Thompson v. Mensah 3 W.A.L.R. 240; [p.102]

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