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NUNEKPEKU AND OTHERS v. AMETEPE


  • appeal
  • 1961-06-06
  • HIGH COURT
  • GLR 301-305
  • Print

PREMPEH, J.


Summary

Family land?-Action against number of family for ejectment from portion occupied by him ?- Remedies open to family where member alienates portion without reference to them.

Headnotes

The defendant occupied a portion of Bawe land, belonging to the Agbeve family. In collaboration with one Akpalu, a junior member of the Agbeve family, the defendant alienated a portion of the said land to a stranger. Whereupon the plaintiffs, being the head and principal members of the Agbeve family, brought this action against the defendant to claim from him the portion he held, and to eject him altogether from the Bawe land, on the grounds that (a) he was not a member of the Agbeve family, and therefore he was a mere licensee, and (b) by dealing with a portion of the land without reference to the family, he had rendered his holding liable to forfeiture. In spite of ample evidence on the record that the defendant was a member of the Agbeve family, the South Anlo Local Court "A" found for the plaintiffs and ordered the defendant to be ejected. He appealed. [p.302]

Judgement

APPEAL from the judgment of the South Anlo Local Court "A" ordering that defendant be ejected from family land in his possession.

This is an appeal from the judgment of the South Anlo Local Court "A" given in favour of the plaintiffs-respondents herein.

In view of the nature of the case and of arguments advanced in this court, I consider that the writ and/or particulars of the claim as filed should be fully set out, and they are as follows:

"The land commonly known and called Bawe land situate and being between Woe and Tegbi towns is admittedly the property of Agbeve family of Anloga and Woe ?- which is under the control and supervision of the plaintiffs as head and principal members of the said Agbeve family.

"The defendant who is not a member of the said Agbeve family has been wrongly and unlawfully granted a portion of the said Bawe land (previously cultivated by the late Abusah) by Kwashie Bohlibo Akpalu a junior member of the Agbeve family without the knowledge, consent and authority of the plaintiff and/or the family as a whole wherefore the plaintiffs?' claim against the defendant is for an order of ejection of the defendant from the land wrongly occupied by him at Bawe and bounded on the East by Bawe Tribal land, West by the land of farm cultivated by Tsigui Akpalu: North by the farm wrongly entered upon by Tetor Abotsi Aho and on the South by the farm wrongly entered upon by Denu Kese. [p.303]

2. A further order upon the defendant, his agents, servants and labourers to vacate any other portion of Agbeve family land known and called Bawe land, Aborme land and Aveglo land wrongly and unlawfully occupied and/or cultivated by him.

3. G100 damages for wrongful occupation and possession of the said Agbeve family land.?"

Paragraph 2 of the claim was amended as follows:

"To remove the full stop after word `him' appearing at the end of claim 2, and to add the following words: Upon the ground that the defendant unjustly and without any authority sold portion of the Agbeve family land at Woe-Aborme to a Madam Ablavi Adika Miheso of Woe.?"

I gave leave to counsel to argue a preliminary point as to jurisdiction, and the point argued was that the native trial court had no jurisdiction to entertain a suit for ejectment. It was held in the case of Kwamin Akyin v. Essie Egymah1 that forms of action in native tribunals are not to be stressed where the issue involved is clear.

In this case, it is clear from the whole of the proceedings that what actually the plaintiffs sought by their writ was an order for the recovery of possession of land against the defendant, and therefore after hearing arguments, I ruled that there was no substance in the point taken, and called upon the appellants?' counsels to argue the merits of the appeal.

Of the several grounds of appeal filed, the only ones that it is necessary to consider, as in my opinion they must prevail, are:

"(2) That there is no evidence to substantiate the plaintiffs?' bold statement that the defendant is not a member of the Agbeve family, the owners of the land.

(4) That there is sufficient admission in the evidence of the plaintiffs that the defendants is a son of a member of the Agbeve family.

(5) That if there is evidence that the defendant is a member even of the general and not the immediate family of Agbeve, he is entitled to exercise the customary usufructural right to cultivate, farm and occupy family land, and cannot be ejected, even if he purports to alienate same.?"

I will deal with all these grounds together.

In the second paragraph of the particulars of claim, the respondents claimed that the appellant was not a member of the Agbeve family, but in giving evidence for and on behalf of the other respondents, the second plaintiff-respondent admitted that the defendant was a member of the Agbeve family on the maternal side, and it is not insignificant to observe that the second plaintiff himself admitted that he was a member of the said Agbeve family on the maternal side.

It having been established that the appellant is a member of the Agbeve family, whether it be of the wider or immediate family, it is my view that he is entitled to occupy any available part of the Agbeve family land, and that once he has occupied that portion, he has a limited right to it, and cannot be ejected therefrom at the will of the individual member of the family. [p.304]

It has been contended on behalf of the respondents that the appellant was a licensee of the respondents, but I am unable to accede to that argument since as a member of the family he has limited rights to the family land.

It is my view that even if the appellant had joined some other members of the family in alienating a portion of the family land rightly or wrongly, the remedy open to the respondents, if they had a right to sue at all, was to bring an action for the recovery of the land from the vendee.

In my opinion, the alternative remedy open to the respondents was to have called a meeting of the whole family, and if the entire family or the principal members thereof had resolved that he should be ejected from or dispossessed of the portion of family land he himself occupied, and if he still remained on the land, then and in that case he could be termed a trespasser, and the family per the respondents could then properly bring an action in a native court to enforce the decision of the family and obtain an order of ejectment or for possession. See Abontendomhene Kweku Akenten v. Kwame Dapaah2

In that case, the respondent had been made the customary successor of one Kweku Pong deceased, a member of the family to which both the appellant and the respondent belonged, and the cocoa farm left by the deceased had been entrusted to the respondent as caretaker thereof for the family, and to utilise the proceeds of the said cocoa farm for the benefit of the family. The respondent failed to utilise the proceeds of the farm to repair the family house, as he had to do, and had also refused to render accounts, and the appellant brought an action in the native court for the recovery of possession from him of the said cocoa farm.

It was held by the Land Court, supporting the judgment of the Asantehene's Appeal Court "A", that the family could only bring the action for recovery of possession of the farm after the family had properly met and customarily removed the respondent from his position as successor and caretaker, the point being that after having been removed, the respondent would be a trespasser if he remained in occupation of the farm.

In my opinion the principle applies with much more force in this case. In this case, the respondents just sued in the native court to dispossess the appellant of the portion of Agbeve family land occupied by his ancestors and now occupied by him, on the ground that he had joined some other members of family to alienate another portion of family land, and since the procedure which I have indicated in the case above referred to was not followed, I do hold that the respondents?' action against the appellant was not maintainable.

Further, and in any case, it is my view that if there was a peculiar custom applicable to the respondents?' family or to the area in which the property is situated, whereby the action could be maintainable without such customary observance, such peculiar custom should have been [p.305] proved by evidence. See Tetteh v. Doku.3 This the respondents failed to do and the trial court also failed to direct itself that such custom should have been proved.

One other reason for the institution of the action against the appellant, as is evidenced in paragraph 2 of the particulars of claim, was that he had been in occupation of a portion of family land previously occupied and cultivated by Abusah. In my view that was a right of action open to Abusah himself, if in fact he had a family right which had been disturbed by the appellant, and I hold therefore that the respondents were not in those circumstances competent to bring this action against the appellant on that ground.

For these reasons I will allow this appeal, and I do set aside the judgment of the native court. Accordingly I do order that the plaintiffs-respondents' claim against the defendant-appellant be dismissed, and I enter judgment for the defendant-appellant with costs which I assess at 70 guineas, inclusive of counsel's brief fee. The appellant will have his taxed costs in the court below.

If the appellant had already paid any costs to the respondents, such costs to be refunded to him.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

G. S. Lassey

Defendant / Respondent

Ofori-Attah

Referals

(1) Akyin v. Egymah (1936) 3 W.A.C.A. 65

(2) Akenten v. Dapaah, Land Court, Kumasi, March 26, 1954, unreported.

(3) Tetteh v. Doku, Court of Appeal, February 2, 1960 unreported.

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