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NTSIN VII AND ANOTHER v. DOUGAN AND ANOTHER


  • appeal
  • 1960-02-26
  • HIGH COURT
  • GLR 26-29
  • Print

ADUMUA-BOSSMAN, J.


Summary

Land?-Claim to ownership of village?-Conflicting traditional histories?-Evidence of exercise of rights of ownership in recent years as criterion between them.

Headnotes

This action concerned the disputed ownership of the village of Putubiw and certain surrounding lands. The plaintiff (the chief of the village) and the co-defendant (Obaahema Amba Baidua) each claimed that their respective ancestors had acquired the land in dispute by original cultivation of what was then virgin forest land. Shortly before this action was begun the co-defendant authorised a member of her family, one Kojo Dougan, to arrange for a survey of the land. He, accordingly, led a survey team (including a licensed surveyor) which cut tracks and surveyed the lands around the village. The plaintiff thereupon instituted proceedings against Dougan in the Asebu Native Court "B". The Obaahema was joined as co-defendant on her own application, and thereafter assumed the conduct of the defence of the suit for herself and Dougan. At the trial, both sides adduced evidence of their respective traditional histories, and also of certain acts in the purported exercise of the right of ownership, such as granting portions of the disputed land. The trial court inspected the land and ultimately gave judgment for the co-defendant. The unsuccessful plaintiff and co-plaintiff appealed to the Land Court, where a plan was prepared and agreed.

Judgement

Appeal from the decision of the Asebu Native Court "B" in favour of the defendants in an action for a declaration of title to land.

(His lordship referred to the facts and continued): The trial court, faced with the task of resolving the issue of ownership on the conflicting traditional stories and on the other evidence of the exercise of rights of ownership in respect of the disputed area as well as adjoining parcels, decided to determine the disputed issue of ownership on the [p.27] evidence other than the traditional stories. In deciding on that course of action they followed a course often adopted by some of our distinguished judges of the past, notably Sir Brandford Griffith, C.J., who in Kwaku v. Brown (Digest, p. 106) said as follows:-

"where there is so much uncertainty and so much indefiniteness, and where land has until recently been practically of no value, all that the Courts can do and what they ought to do, is to accept accomplished facts, whatever may have been the state of things 200 years ago,"

So to Hall, J., who in Re Asamangkese Arbitration (Div. Ct. 1926-29 p. 234) adopted the observation, reported in West Africa of November 8th, 1927 as made by Lord Buckmaster in the case of Dua v. Tandoh (P.C. 1874 - 1928, p. 109) as follows: - "my judgment is far more influenced by actual facts, as you find them when the dispute begins, than by tradition."

(His lordship referred to the judgment of the trial court, and continued):

It seems to me that those clear findings of fact, based on the clear and irrefutable evidence of acknowledged boundary owners and to some extent on the admissions of the plaintiff himself and his witnesses, are unimpeachable. They have, in my view, withstood the able efforts of counsel for the plaintiff to impugn them.

But it seems to me further, that in so far as it might have been necessary to resolve the conflict in the traditional histories, the plaintiff's was substantially discredited by certain events and incidents, established by the evidence - including admissions by the plaintiff himself and by some of his witnesses. The test for resolving such conflict is laid down in clear terms by Lord Denning in Adjeibi-Kojo v. Bonsie and Another (3 W.A.L.R. at p.260) as follows:

"Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief .... The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the most probable."

When that test is applied, the plaintiff's traditional history is decisively discredited by certain incidents amounting to an exercise of rights of ownership on the part of the defendant's family in respect of the Putubiw lands in dispute, and established by the evidence to have taken place within living memory - in some cases quite recently. Six such events or incidents were established by evidence of the co-defendant which was accepted by the trial court. It is necessary to mention only three, which were virtually admitted by the plaintiff himself.

The first is that Chief Kwesi Abonyin, the first Chief of Asebu, laid claim to Putubiw Village and the surrounding lands. The plaintiff's predecessors took no steps to resist him; it was the defendants' predecessors (twins , both of whom were called Atta) who resisted him, and who successfully sued him in the Court of King Amonoo of Anomabu, where they recovered judgment. A document from the Tribunal Record Book [p.28] was produced as a copy, made in 1904, of the judgment given as far back as 1876. It appears to me to be of doubtful authenticity, but there can be no doubt about the incident, for it is admitted by the plaintiff, although he suggested that Kwesi Abonyin's claim was not in respect of Putubiw Village land, but Humaborrow land. He himself admitted, however, that Humaborrow is one of the parcels going under the general designation of Putubiw Village Lands, and claimed that in fact it was his ancestor who gave that parcel to the defendants' ancestor. The suggestion, therefore, is not convincing, nor has it the effect of destroying the story that the incident took place as related by the defendant.

There was a second incident when one Yaw Amuah, the plaintiff's father, claimed a portion of the Putubiw lands called Kortorburam land, which the plaintiff claimed in this case as part of the Putubiw lands attached to his stool. Plaintiff's father sued co-defendant's mother and her son Kwesi Dadzie at Cape Coast, but lost the case; the sequel was that he came back to Putubiw, shot and killed Kwesi Dadzie and then shot and killed himself also. When the trial court enquired from the plaintiff why he took no steps while that litigation proceeded between his father and co-defendant's mother, his answer was: "My uncle joined the litigation (but) I cannot say if he was a witness or party." If that was the situation - that his uncle joined the litigation - then, whether as a party or merely as a witness, it is clear that the judgment in favour of co-defendant's mother now operates legally to estop him from maintaining his present claim, at any rate to that portion of the land (Marbell v. Akwei consol. with Akwei v. Cofie 14 W.A.C.A. 143).

There was a third incident, also admitted by the plaintiff, when one Kwamin Miyerwuden felled twelve oil-palm trees on another portion of the Putubiw lands called Kyirbapah (also claimed by the plaintiff in this action), whereupon the co-defendant sued him in the Asebu Native Court. Plaintiff gave evidence for him, but it was the co-defendant who recovered judgment. That judgment, too, would legally operate as an estoppel to preclude the plaintiff from maintaining this claim, in so far as it relates to that portion of the land in dispute.

Further, with regard to his position as chief in control of the village, on which the plaintiff relied heavily in his claim to ownership of the land, the co-defendant gave evidence that it was to her ancestress Quainuah that the villagers had applied for the appointment of a chief, and that she nominated the plaintiff's ancestor Ntsin for them, this history being reflected in the subsisting practice whereby the chief has to be nominated by the head of her family. Evidence confirmatory of the co-defendant's version was given by at least two witnesses of the plaintiff.

There is also the significant admission made by the plaintiff himself that it was from Kwamin Tsia (the co-defendant's elder) that permission was sought if anybody wanted to fell palm trees on portions of the land in dispute which the plaintiff claims to be his.

The net result of those three incidents, and others established by the defendant's evidence but not specifically dealt with in this judgment, [p.29] is to render the co-defendant's traditional history the more probable and acceptable one. As observed by Lord Buckmaster in Dua v. Tandoh (P.C. 1874-1928, p. 109):

"Tradition, though of great value when supported by action and facts, becomes of lessened consequence when brought into collision with a series of definite incidents inexplicable if the tradition be regarded as accurate."

In all the circumstances, therefore, I am satisfied that the judgment of the trial court was right. I hereby confirm it, and dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Blay

Defendant / Respondent

Johnson

Referals

(1)  Kwaku v. Brown Griffith's Digest, 106.

(2) In re Asamangkese Arbitration Divisional Court 1926-29, 220.

(3)  Adjeibi-Kojo v. Bonsie and Another, 3 W.A.L.R. 257.

(4) Marbell v. Akwei consolidated with Akwei v. Cofie 14 W.A.C.A. 143.

(5)  Dua v. Tandoh Privy Council Judgments (1874-1928) 109.

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