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KOTEY v. ASARE


  • New
  • 1962-05-01
  • HIGH COURT
  • 1 GLR 312-326
  • Print

OLLENNU, J.


Summary

Land law?-James Town stool lands?-Title of the sub-stools.Customary law?-Effect of conveyance of family land without consent of principal members of family.Land law?-Registration?-Priorities.

Headnotes

Charles Danso acquired a piece of land at Lartebiokorshie, Accra, from the Alata stool of James Town by a conveyance dated the 20th March, 1956, exhibit A. The conveyance was registered in 1959. The grant was made to him in a representative capacity, for himself and members of his family. By a deed, exhibit B, Charles Danso, without the knowledge and consent of the principal members of his family, conveyed the land to the plaintiff. When this plaintiff went on to the land, she found the defendant in possession. The land had been sold to the defendant by a Madam Adorkor who acquired it from the Sempe stool by a conveyance, exhibit 2, dated the 4th October, 1952, and registered in 1958. Both the Alata stool and the Sempe stool are sub-stools of the James Town stool.

Judgement

ACTION for declaration of title to land, and for ancillary reliefs.

The plaintiff claims declaration of title, an order for injunction and special damages, the sum of G150, for trespass in respect of a piece of land described in her writ of summons. The land is situate at west Korle Gonno, and is part of a large area of land called Lartebiokorshie. There is no dispute that the said land is within the James Town traditional [p.313] area formerly known as James Town Division of the Ga State. The plaintiff relies upon a grant of that land by the Alata stool of James Town to one Charles Nii Aku Danso as her root of title.

The defendant disputes the claim of the plaintiff; he claims title from the Sempe stool also of James Town, through one Madam Adorkor, a grantee of the Sempe stool. He contends that he was in possession of an area of land comprising the land in dispute, exercising full acts of ownership thereof at the date when the plaintiff entered upon the land and started to construct a temporary iron sheets structure on a portion of the land he so occupied.

The parties, particularly the plaintiff, introduced quite a bit of the history of James Town section of Accra into the case which has provided sound basis for a proper adjudication of the case. That history may be stated briefly as follows: the James Town Division, now traditional area, comprises three principal sections, they are: Alata, Sempe and Akumadjey. The Sempes had been settled in this part of the country for about two and a half centuries before the Alatas arrived under their headman, one Wetse Kojo. The Alatas settled with the Sempes on land granted to them by the Sempes. The grant was made either direct, or through the English authorities administering James Fort who had brought Wetse Kojo and his people to work in James Fort. But although the Alata stool is comparatively recent, the British Government for some reasons or the other, recognised it for many years as the senior or head stool of the whole of James Town: see for example exhibit P, Report of the Ga State Enquiries, 1907, which as the evidence shows, arose, among other things, from opposition which Nii Kojo Ababio IV, James Town Mantse, raised to the election and installation of a Mantse for Sempe. In consequence of the recognition which the British Government gave to the occupant of Alata stool as the Mantse of the whole of James Town, they, the British Government, transacted all matters affecting any of the sections of James Town with the occupant of that stool in his capacity as Mantse of James Town; and the said Alata Mantse also transacted all matters affecting any section of James Town in his capacity as Mantse of James Town. P.W.3, Emmanuel Kpakpo Allotey, Dzasetse to the Alata Mantse who gave evidence in this case as representing the Alata stool described the position to the court in these words:

"Up to a time all the three sections of James Town were one and the Alata mantse was styled the King of James Town or James Town Mantse. That continued up to the time of Nii Kojo Ababio in or about 1908. The Alata Mantse at that time occupied a dual position Alata Mantse and James Town Mantse. ..

It was with the Alata Mantse that Government officially dealt in matters affecting James Town as a whole, not necessarily Alata."

Thus as stated by the said Dzasetse, P.W.3, when the Government had to give compensation in respect of a fetish, the Obotu fetish, a thing which by custom is most sacred to its owners, and generally regarded with sentimental reverence by Ghanaians, the government paid the said compensation to King Kojo III, King of James Town and Alata Mantse, and he, King Kojo III in turn paid the sum to Chief Moi of Sempe, whose stool is the undisputed owner of the said Obotu fetish. Again, when the government by proclamation placed the Accra?-Oblogo road under the Roads Ordinance,1 it made the maintenance of that road the responsibility of the Chief of James Town, and made the quarterly payments to him as shown by exhibit P, although people from all the [p.314] three sections of James Town took part in maintaining the road. As to the persons who actually worked on the said road, P.W.4 said in examination in chief:

"Yes, I know the old Oblogo road. The James Town stool was responsible for clearing that road. Yes I was one of the young men who used to clear it. We used to clear it upon instructions of the James Town Mantse. The portion we cleared is a long track of foot path which runs along the Sakumo. The people from Accra used to clear up to Sabon Zongo and we in Sabon Zongo clear up to the other end. Those from Accra used to be accompanied by the James Town Mantse Nii Kojo Ababio.

At that time there were no villages any where in the area so we cleared from Sabon Zongo up to the Sakumo river."

D.W. 2 James Allotey Quaye, senior linguist to the Sempe Mantse stated under cross-examination: "The road in question was cleared annually by Sempe, Alata, and Akumadjey together". That evidence means that the road is cleared by the people of all the three sections of James Town.

It was in that position, that is, as Mantse of James Town, that Nii Kojo Ababio IV opposed the election of Mantse Anege Akwei as Mantse of Sempe, contending that so long as he was there as James Town Mantse acting on behalf of Sempe, there was no need that a Mantse should be installed for Sempe qua Sempe, except with his permission as Mantse of the whole of James Town.

It follows from these historical facts that nothing done by an occupant of the Alata stool can properly be said to have been done by him exclusively qua Alata Mantse. At its best anything done by an occupant of that stool is ambiguous, it might have been done on behalf of Alata, or Sempe or Akumadjey or of all of three together. Therefore unless there is clear evidence to show that anything he did was done qua Alata Mantse, the Alata stool cannot separately claim any benefit from it. The only benefit the Alata stool can claim in such an act is one which is common to all the three stools of James Town, namely, Alata, Sempe, and Akumadjey. I will put it in another way: any assertion of a right, title or interest in land, made in the past by the occupant of the Alata stool as James Town Mantse, enures to the benefit of each of the three stools, i.e, of Alata, Sempe and Akumadjey equally; and any one of those stools whose people could be shown to be predominantly in occupation of any land over which the James Town Mantse exercised or asserted such acts or right of ownership, is the exclusive owner of the particular land.

Consequently in all cases of disputed ownership of any land west of Accra, between two or all of the three stools of James Town, the sole means by which anyone of the said three stools can claim exclusive ownership of any piece of land, is to prove by satisfactory evidence that the particular area is occupied exclusively or predominantly by the subjects and grantees of that one stool or the other. Thus in the Waterworks, Acquisition Case: Mantse Anege Akwei v. Mantse Kojo Ababio,2 the Privy Council upholding the concurrent judgment of the Divisional Court and the Full Court, stated: "It was further found by both Courts that by custom of the Ga Tribe land which had been exclusively used by the inhabitants of the particular quarter of James Town belong exclusively to that quarter". That principle was also applied by this court in Cobblah v. Okraku3. That is the sole criterion upon which this case should be determined.

Since in this case the plaintiff claims through the Alata stool, while the defendant claims through the Sempe stool, the onus is upon the plaintiff, if she should succeed, to prove that for some time and up to the date of the grant of the land to her vendor, subjects of the Alata stool were the people exclusively or predominantly in possession and control of the land and the lands immediately adjoining it.

Now the plaintiff tendered in evidence exhibit Q, the judgment in the case of Mantse D. P. Hammond v. Mantse Kojo Ababio IV.4 That judgment was admitted in evidence, not as operating as estoppel by conduct against the defendant and the Sempe stool through whom he claims, but as some evidence of assertion of possession by the Alata stool: Kobina Ababio II, etc., v. The Priest-in-Charge, Catholic Mission, Ampenyi and Anor.5

The next question is over what land did the Alata stool assert the possession, particularly bearing in mind that the Alata stool was only a defendant in the case, and did not counterclaim for any declaration, and therefore no declaration was made or could have been made in his favour. We must refer to the judgment itself to ascertain the land affected by it. Smyly C.J. in the course of that judgment said: "I have to confine myself strictly to the land claimed in the writ namely the lands occupied now by Malam Bako, the second defendant". In other words that judgment exhibit Q must, in its application, be confined strictly to land occupied at that date by Malam Bako and his people, i.e., the Sabon Zongo area.

The plaintiff put in evidence a plan exhibit E and a photostat copy of it, exhibit C, alleged to be copy of a plan used in the case of Mantse D. P. Hammond v. Mantse Kojo Ababio. There is nothing on that plan which shows that it was the plan used in the said case apart from the title of that case appearing on the said plan. That plan is also superimposed on a section of Accra town survey sheet exhibit D. Both on exhibit C and exhibit E, the said Sabon Zongo area is edged green, and its appropriate position is edged pink on exhibit D. The land claimed by the plaintiff is indicated on the plan exhibit D and is coloured red. It is a long distance away from the Sabon Zongo, a considerable distance to the southwest of it.

Next the plaintiff, by her witness P.W.3 who does not live on or occupy any portion of land in the area where the land in dispute is situate, led evidence of present headmen of alleged villages on the land and gave a long list of their predecessors in office. According to that witness, one Lartey Cobbla II is the present Alata headman of Lartebiokorshie, and one Mr. Quacoo Tagoe also known as Nii Yao Duade Crabbe is the present Alata headman of Nmenmetey land which is within the Lartebiokorshie lands. None of these people was called to prove his possession as subject or grantee of the Alata stool of any land in the said areas; and no person was called who occupies land anywhere in the vicinity of the land in dispute as a subject of the Alata stool. Rather certain old documents, civil lists and chiefs' lists were tendered in evidence on behalf of the plaintiff. These are: exhibits J, K, L, M and N. The chiefs' list made it abundantly clear that the inclusion of any name in the list must not be taken as recognition by the Government of the position of that person. Thus the list cannot be of much evidential value as to the status of any person as chief or headman, much less of ownership of land. When these [p.316] various lists are taken together with the evidence already referred to given by P.W.4 who has lived in Sabon Zongo for over 50 years, one begins to doubt the genuineness of the alleged villages and their alleged headmen appointed by the Alata stool. Talking about clearing of the old Oblogo road the witness P.W.4 said, inter alia:

"The people from Accra used to clear up to Sabon Zongo and we in Sabon Zongo cleared to the other end . . .

At that time there were no villages anywhere in the area so we cleared from Sabon Zongo up to the Sakumo river."

The court cannot attach much importance to these lists; what the plaintiff has to prove to succeed are accomplished facts of occupation and possession.

But what are the accomplished facts as to occupation of lands in the vicinity or area where the land in dispute is situate? The only evidence of that is all in favour of the defendant. There are two or more schools very close to the land in dispute, and there are other lands in the vicinity occupied by people. None of those lands was granted to its occupant by the James Town Alata stool; they were all granted by the Sempe stool Therefore the accomplished facts as to possession and occupation contradict the plaintiff's case.

It was submitted that there is litigation between the Sempe stool and the Alata stool in respect of a large area of land embracing some of the lands occupied by subjects or grantees of the Sempe stool. But there is no evidence that apart from the general description of the land in those other suits, any of those suits specifically relates to any of those lands proved in this case to have been in the occupation of subjects and grantees of the Sempe stool.

Now the conveyance exhibit 2 which the Sempe stool executed in favour of the defendant's vendor is dated the 4th October, 1952, and registered as No. 1881/1958, whilst the deed, exhibit A, which the Alata stool executed in favour of P.W.1 the plaintiff's vendor, is dated the 20th March, 1956, and registered as No. 1156/1959. Thus of the grants made by each of the two James Town stools, that of the defendant's vendor would take precedence over that of the plaintiff's vendor if the grantors were the same.

Finally P.W.1 the plaintiff's vendor said that the conveyance which the Alata stool made, was for him and his family. That fact is corroborated by exhibit A. By the execution of exhibit B, P.W.2 purported to convey the land as if he were the sole owner. That conveyance of family property having been made obviously without the necessary customary consents and concurrences is void ab initio.

There is no doubt that the defendant was in possession of the land for some time, farming it before he started to build upon a portion of it. In such a case possession of a portion of the land is possession of the whole land. The plaintiff has failed to prove that she has title to the land which is superior to the defendant's right to possession.

The plaintiff's claim is dismissed and judgment entered thereon for the defendant with costs fixed at 25 guineas, in addition to the costs of 50 guineas already awarded.

Decision


Plaintiff / Appellant

S. M. Codjoe

Defendant / Respondent

G. D. Ampaw

Referals

(1) Akue (Acquaye) v. Ababio IV (I 927) P.C. 74'28, 99

(2) Cobblah v. Okraku [1961] G.L.R. (Pt.II) 679

(3) Hammond v. Ababio IV (1912) D. & F. '11 '16, 17

(4) Kobina Ababio II, etc. v. Priest-in-charge, Catholic Mission, Ampenyi and Anor.   (1935) 2 W.A.C.A. 380

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