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KANO v. ATAKPLA


  • New
  • 1959-11-20
  • HIGH COURT
  • GLR 387-390
  • Print

OLLENNU J.


Summary

Land?-Customary law's prohibition of ejectment of grantee otherwise than on agreed terms?-Sole exception to this.

Headnotes

Many years prior to this action, Bawa Kano (a stranger to the area concerned) applied to Larkotey for a plot of land to build upon at Ayikuma in the Shai locality. Larkotey granted land accordingly. The customary presents which Kano gave for the grant were a live sheep, and some drinks. These were presented to Larkotey through Narteh, who acted as Linguist for Larkotey. Kano entered on possession of the land, erected buildings on it, and remained in enjoyment of it up to the date of these proceedings.In course of time Larkotey died, and Ametse succeeded him. Ametse died, and was succeeded by Larkotey's son Kwame Larkotey.Sometime in 1958, Atakpla (purporting to act for Kwame Larkotey, the grantor's son) requested Kano to pull down part of his fence to the house on the land within seven days, to allow him (Atakpla) to enter thereon to carry out certain building operations. He further gave Kano notice to vacate the land entirely within 12 months. In answer to this notice to quit, Kano told Atakpla to make his request through that Narteh who had acted as Linguist when the now deceased Larkotey had made the grant of the land to him (Kano). Atakpla riposted with an action against Kano in the Shai Native Court, calling on Kano to bring Narteh forward. On the 11th March, 1958 the Native Court gave judgment for Atakpla, on the ground that the person whom Kano should have named in his reply to Atakpla's demand was the deceased Larkotey as the alleged actual grantor, instead of Narteh who had been but a Linguist in the matter.On the 17th April, 1958 Atakpla addressed the following letter to Kano:"I have been instructed by my nephew Kwame Larkotey to serve you with notice to remove your fence on his father's land at Ayikuma within a week (seven days) from date which expires on Thursday, the 24th instant to allow him to erect a building thereon."2. You are further requested to remove your building and quit to the other side of the street so that the whole of his father's plot may be free for the family's building purposes. You are requested to do this within one year from date (April, 1959) but seven days to remove your fence."3. I hope you will take this notice seriously and act accordingly to avoid any future misunderstanding and to promote peaceful relationship between us."Kano now instituted proceedings in the Shai Local Court "B" against Atakpla complaining of the latter's molestation. On the 3rd June, 1958 that Court gave judgment in favour of Kano, and declared that Atakpla had no title to the land, and that he had unlawfully molested Kano in his enjoyment of it. [p.388]Atakpla appealed to the Land Court against this judgment (Land Appeal No. 82/1958).

Judgement

(His lordship reviewed the history of the matter, and continued:?-

The Native Court gave judgment on the 11th March, 1958, in the first action (Atakpla v. Kano) in the following terms:?-

"In this case Atakpla sued Kano to show before the Court Narteh whom he Kano referred to in a letter Exhibit "A" giving him a portion of land situate at Ayikuma. The Court has heard the evidence given by parties, and the witness called by Kano who had told the Court the agreement reached between them when the land was given. From the evidence of that witness it is clear that it was not Narteh who gave the land to Kano and who gave the land should be mentioned and not Narteh who only acted as a Linguist, and in that case Kano's letter Exhibit ?"A?" is uncalled for. Judgment therefore for Atakpla against Kano with costs."

In this Court it has been submitted on behalf of Atakpla that that judgment operates as res judicata, since it declares Atakpla the owner of the land. Upon the clear wording of the judgment (which I have quoted in extenso) I am unable to see how a decision of that nature can operate as res judicata in the present dispute. All that that judgment decided was that if Atakpla was the grantee of the land, on any matter arising which affected that land the proper person for Atakpla to mention would be his grantor (not Narteh, who merely acted as a Linguist at the grant). In effect, therefore, that judgment upheld the contention which Kano put up in the instant case?-that he is a grantee, entitled to quiet possession of the land. It does not, in my opinion, hold (as Counsel would wish the Court to accept) that Kano had no interest in the land. There is no substance in the submission of Counsel that the dispute is res judicata by reason of that judgment. [p.389]

It was submitted further on behalf of Atakpla that the judgment of the Native Court was against the weight of evidence, because the judgment cited had led him to believe that he was the owner of the land, and that he was entitled to give notice to Kano to quit the land at his will. With respect to learned Counsel, I must say that this submission is contradicted by the letter which Atakpla wrote to Kano, and which necessitated this action. In that letter Atakpla expressly states that he was giving the notice, not in his personal capacity, but as an agent of Kwami Larkotey, the present owner of the land and son of the original owner. In the face of that, I fail to see how it can be suggested that Atakpla was misled by the judgment to believe that he was declared to be the owner of the land, and could therefore molest the plaintiff and request him to quit the land. If he fell under any misapprehension, it was by his own fault.

Again, learned Counsel referred to the following passage in the judgment of the Native Court whose proceedings are the subject of the present appeal (Kano v. Atakpla).

"According to custom, if land is given to another to build and settle on it, and he has doneso and settled, and later you require your land back, you will either pay for his building on the land, or help him to build on another site if the relationship is good, but you cannot eject him by force as it is being done in this case."

Counsel submitted that the proper interpretation of that statement of customary law is that a grantor or licensor can eject his licensee at will, unless there is good relationship between him and his licensee or grantee, in which latter case he would either have to pay him the cost of any building he has erected on the land, or assist to erect an alternative building. I am unable to place such an interpretation upon that statement made by the Native Court. In my opinion, all that statement means is this-that a grantor or licensor of land who has permitted his grantee or licensee to occupy and build on his land, or to incur expenditure to improve it is, by customary law, not entitled to eject the grantee or licensee at will. He can only do so upon terms to be agreed upon between him and the grantee or licensee?-such terms as payment of compensation for the disturbance of his possession, and the value of his buildings on the land, or provisions of an alternative accommodation comparable to what the grantee or licensee is to lose.

By customary law, where an owner of land grants land to another person for purposes of building, and the grantee builds on that land and occupies it (that is, expends money to improve the land) the grantor is not entitled to eject the grantee upon any flimsy excuse, [p.390] or at his will. He can eject only where the grantee denies his title; even in that case, in order to perpetuate and evidence the fact of his ownership as grantor and the grantee's acknowledgement of his title he may request the grantee to pay rent or tribute for his continued occupation. If the grantee fails to make that acknowledgement, only then will the grantor be justified in ejecting the grantee. But so long as the occupation of the tenant or the licensee is not inconsistent with the title of the owner, and the licensee or grantee does not deny the title of his grantor or licensor, the possession of the grantee or licensee will be protected by customary law, and he cannot be ejected. I would add that if the Native Court had held otherwise I would have felt myself bound to hold that such a custom was repugnant to natural justice, equity, and good conscience, and was one which this Court by virtue of section 87 of the Courts Ordinance would not enforce.

Decision

<P>The judgment appealed against is, in my opinion, sound.&nbsp; The appellant has not been able to show in any way whatsoever that it is wrong.&nbsp; The appeal is without subst

Plaintiff / Appellant

Kano in person

Defendant / Respondent

de Graft Johnson

Referals

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