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  • appeal
  • 1961-05-29
  • GLR 281-285
  • Print



Customary law?-Title to land?-Alleged arbitration?-Whether "arbitrator" entitled to fix arbitrary boundaries between the parties?-Customary right to extend boundary of land under cultivation. [p.282]


The plaintiff alleged that the defendant had trespassed upon her land at Bepong. The Beponghene, with the assistance of his elders, investigated the matter and, finding that the defendant had trespassed, ordered him to pacify the plaintiff with the sum of G16. This was done. Subsequently, the Beponghene volunteered to apportion the land between the parties, but the plaintiff was not satisfied with the apportionment, which she alleged, allocated to the defendant a portion of land towards which she was entitled by custom to extend her cultivation. The plaintiff, therefore, instituted the present proceedings in the native court seeking declaration of title to land and damages for trespass. The native court found in her favour but did not award any damages.On appeal, the land court reversed the decision of the trial local court holding that two successive arbitrations had been held before the Beponghene and these barred the plaintiff from instituting this action.


APPEAL from the judgment of Ollennu, J. in the Land Court, Accra, delivered on the 12th May, 1959 (reported at [1959] G.L.R. 218) which reversed the decision of the Kwahu Local Court "A" given in the plaintiff's favour, in an action for, inter alia, declaration of title to land.


Korsah C.J. he delivered the judgment of the court. The plaintiff instituted this action in the Kwahu Local Court Grade "A", Nkwatia, claiming a declaration of title to, and ownership of, a cocoa farm and G75 damages for trespass. The plaintiff's case may be briefly summarised thus: the plaintiff's brother Kwasi Kissi, deceased, had cleared a forest and made cocoa and food crop farms in the area when a larger area including the area of Kwasi Kissi's cultivation was declared a forest reserve under the Forests Ordinance1 whereby owners of farms and other cultivations within the area so declared were prohibited from entering and continuing their cultivations. Some time after this forest reserve was declared Kwasi Kissi died and the plaintiff became his successor.

In the meantime the Forestry [p.283] Department released Kwasi Kissi's area including the adjacent forest from the reserve thereby enabling the farmers in that area to continue their respective cultivations. It was later discovered that the defendant had cleared and made a new cultivation on part of Kwasi Kissi's area. Thereupon the plaintiff protested and the Odikro of the place with the assistance of his elders investigated and found that the defendant had trespassed on Kwasi Kissi's farmstead and ordered that the defendant should pacify the plaintiff with the sum of G16. The defendant having paid the amount to the plaintiff, the Odikro volunteered to apportion the land for the plaintiff and the defendant. The attempt, however, failed because the plaintiff complained that the Odikro had indicated his intention of allocating a portion of the area towards which the plaintiff was entitled by custom to extend her cultivation. In the result, the plaintiff brought this action against the defendant.

At the trial it became apparent that the issues involved were as follows:

1. Where is the site of the original cultivation of Kwasi Kissi?

2. Whether it was situated by the old foot-path or by the new foot-path from Aworoso-Oworobong.

3. How far was the distance between the old and the new foot-paths. The plaintiff claimed that the late Kwasi Kissi's plantation was made in an area through which the new Aworoso-Oworobong foot-path passed. The defendant, on the other hand, contended that the area in dispute was by the old Aworoso-Oworobong foot-path. After hearing evidence the trial court inspected the area and issued a report stating, inter alia:

"... this court having carefully examined the disputed area in the inspection, agrees that the disputed area forms part and parcel of the farming land of late Kwasi Kissi whose right the Plaintiff is claiming. The farming land referred to is the farmstead of late Kwasi Kissi of Bepong (Agyoguo-land). The present Aworoso foot-path is not the ancient path as agreed in the evidence of the defendant and his witnesses. The evidence of the plaintiff and his witnesses is the correct on the record in view of the inspection. The farmstead (Agyoguo) of late Kwasi Kissi of Bepong ends by the stump of the chewing stick plant. The boundary line fixed by Beponghene through the disputed area is not correct. It was fixed unsatisfactorily and it has no customary support, because the defendant has no land there".

The trial court after very careful consideration of the evidence and the report of the inspection entered judgment for plaintiff. We may mention that although there was a claim for damages in addition to the claim for a declaration of title to, and ownership of, the cocoa farm, the court did not award any damages, but made the following order: "Plaintiff to hold possession of the disputed area as her family property originated by late Kwasi Kissi of Bepong".

In the course of the proceedings evidence was adduced suggesting that the Beponghene, one of the defendant's witnesses, and his elders had arbitrated in the matter between the parties. This apparently refers to the meeting of the Odikro (Beponghene) and his elders at which the defendant admitted that he had trespassed on the plaintiff's portion of the forest [p.284] and was ordered to pay G16 as pacification. In our view there is no evidence on record which supports the contention that there was an arbitration in the legal sense and that an award was published. In any event, the only clear evidence on record as to the meeting is to the effect that, in the presence of the Odikro and his elders the defendant admitted trespassing on the disputed area and that he was asked to pay G16 as pacification; there is nothing in this to prevent the plaintiff from taking an action for a declaration of title to, and ownership of, the land in dispute. It may have been a good ground to the claim for damages and it may well be that that was the reason for the court ignoring the claim for damages. It will be observed that if matters had rested there, there would have been no need for the plaintiff to institute this action against the defendant; but there is evidence that later the Beponghene, acting in his capacity as Odikro of the area and alleging to be related to both parties, attempted to apportion the land between them: this neither the arbitrators nor the Beponghene could do even if there had been a proper arbitration.

In the Privy Council case of Omanhene Kobina Foli v. Chief Obeng Akesse2 where an arbitrator, finding there was no evidence upon which he could adjudicate between the parties, drew an arbitrary line with a view to bringing peace between the people, their Lordships held:

"... the learned Arbitrator has misconceived his duty under the reference, in respect that by his award he has laid down a new boundary line, based on consideration of what would be a fair division of the disputed area between the parties. It follows that the award should be set aside on the ground that the Arbitrator has acted ultra fines compromissi".

The defendant having appealed from the judgment of the trial court to the Land Court the learned judge reversed the decision of the trial court and held that what had happened before the Beponghene and his elders and the attempt by the Beponghene to apportion the land between the parties constitute two successive arbitrations and barred the plaintiff from bringing this action. He also held that the arbitrators by the award laid down the old Aworoso-Oworobong foot-path as the boundary between the parties and that the trial court misdirected itself in rejecting the award.

We can find no evidence on record to support this finding, and even if the arbitrators had suggested this arbitrary boundary it would be contrary to the principles laid down in the case of Omanhene Kobina Foli v. Chief Obeng Akesse cited above.

On appeal to this court, it appearing to the court that the site of the old Aworoso-Oworobong foot-path in relation to the land in dispute is important in the determination of the case, a survey was ordered by consent of the parties, as a result of which a plan of the area has been admitted in evidence and marked "S.C.1.".

It is clear from this plan that the two foot-paths, namely, the old Aworoso-Oworobong foot-path and the new Aworoso-Oworobong foot-path are at least one mile apart; also it is observed that the land in dispute abuts the new Aworoso-Oworobong foot-path as claimed by [p.285] plaintiff and not the old foot-path as contended by defendant. The plan further shows that the new cultivation by defendant is partly within the cultivation of plaintiff and partly on land directly facing the late Kwasi Kissi's cultivation which according to custom is land on which plaintiff is entitled to extend her cultivation. It follows that an arbitrary boundary which the Beponghene attempted to fix for the parties if intended to be in execution of the award of the alleged arbitration was misconceived and contrary to settled principles of law.

In the result we allow the appeal.


<P>Appeal allowed.</P>

Plaintiff / Appellant

E. Akuffo-Addo

Defendant / Respondent

J.B. Kwenin


Foli v. Akesse (1931)2 W.A.C.A., P.C.

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