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RE AYIMA; IN THE MATTER OF THE PUBLIC LANDS ORDINANCE AND IN THE MATTER OF LAND AT SOMANYA ACQUIRED FOR MOUNT MARY TRAINING COLLEGE AND APOTSI AYIMA A


  • New
  • 1960-04-08
  • HIGH COURT
  • GLR 80-84
  • Print

OLLENNU, J.


Summary

Acquisition of land?-Public Lands Ordinance (Cap. 134) section 14?-Presumption in favour of party in possession?-Onus upon others to show better title?-Customary law boundary where parties own land on opposite sides of a hill.

Headnotes

Land at Somanya was acquired by Government in 1956 for the Mount Mary Training College. Hitherto, the College had occupied the land under two leases, granted by the Konor of Yilo Krobo and the Konor of Manya Krobo. Five persons of groups of persons claimed compensation in respect of the land so acquired.The first and third claimants (on behalf of Manya Krobo families) and the fourth claimants (Yilo Krobo families) relied on ownership and possession of portions of the land, at the time of occupation by the College. The second claimant (the Konor of Manya Krobo) claimed compensation for the whole area, as being part of the Manya Krobo Stool lands, and as the representative of all subjects of the Stool who were in occupation at the date of acquisition including the first and third claimants. The fifth claimant (Mantse Tetteh Dedu II) based his claim on ownership of the land except for that portion occupied by the fourth claimants. He admitted that the Manya Krobo families were in possession of portions of the land but only as his licensees and tenants.At the hearing, counsel for the first, second and third claimants in view of the identity of their interests informed the court they were agreed, in the event of their claims succeeding, that compensation should be awarded to the Manya Krobo subjects in possession at the date the land was acquired subject to the payment of costs incurred by the second claimant in instituting and prosecuting the claim. [p.81]

Judgement

ACQUISITION of land, claims for compensation.

(His lordship stated the respective claims and continued): Section 14 of the Public Lands Ordinance, Cap. 134 reads as follows:

"In all cases where any question shall arise respecting the title to any lands to be acquired under this Ordinance the parties in possession of such lands as being the owners thereof at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands, unless the contrary be shown to the satisfaction of the Court, and such parties shall be entitled to receive the purchase money or compensation for such lands, but without prejudice to any subsequent proceedings against such parties at the instance of any person having or alleging a better right thereto."

The section raises a presumption of ownership in favour of persons in possession at the date of the acquisition; and places a burden upon any claimant not in such possession to prove a better title to the satisfaction of the court: Adjin III and Another v. Onano V and Another (14 W.A.C.A 472) and Adjin II v. Obadsen II and Another (14 W.A.C.A. 649).

The fifth claimant as pointed out above, admits he was not in physical possession of any portion of the land at the time of the acquisition, and there is not a title of evidence on the record that he was. The onus is therefore upon him to satisfy the court that title to the land was vested in him at the day of the acquisition, and that the persons in physical possession at the time of the acquisition were his tenants and licensees. At a very early stage of the proceedings and on many occasions during the course of the proceedings this onus was forcefully brought to his notice by the court. But all the evidence he tendered in support of his allegation that the Manya Krobos in possession were his tenants and licensees is: firstly, a half-hearted allegation that the third claimant used to give corn and firewood to his, the fifth claimant's family in acknowledgement of his family's ownership of the land; and secondly, evidence [p.82] led by him and his witness that the third claimant and two of his people had obtained permission from him through the Konor of Yilo Krobo, to make a road from their village which is near to the eastern boundary of the land acquired, to join the Accra-Senkyi road, which is some distance away and that upon making the said road the third claimant and his people had reserved for him all trees felled along the course of the road and all stumps of trees dug up, and that he, the fifth claimant, had had the same collected for him by his people.

There is nothing whatsoever to support the bare allegation of the fifth claimant that the third claimant used to pay tolls in kind to the fifth claimant or to his family; that suggestion, when put to the third claimant was denied by him in a manner which indicated that the suggestion was fantastic. On the question of the construction of the road, the third claimant denied that he had to obtain the fifth claimant's permission through the Konor of Manya Krobo to construct the said road. Having seen and heard the third claimant and his witness I have no hesitation in accepting the evidence and explanation of the third claimant in this regard and rejecting the evidence of the fifth claimant and of each of his witnesses. The evidence of the fifth claimant on the one hand and that of his two witnesses on the other hand on the question of the alleged permission conflict in material particulars; for example, while the fifth claimant said that he had to give the alleged permission before the third claimant could start the construction of the road, his two witnesses on the other hand said that the third claimant and his people had made the road up to a certain point, and the alleged permission had to be given in respect of the portion from that point to the end, that is, its junction with the Accra-Senkyi Road.

There is one other matter relating to the claim of the fifth claimant. There was some controversy as to whether the fifth claimant or the fourth claimant was the lawful representative of the Narko Wornor in these proceedings. The said Narko Wornor is the seventh of eight claimants substituted for Mantse Tei Agbe as the fourth claimant. The evidence shows that whatever relationship exists between the fifth claimant and the said Narko Wornor, the only person whom the Wornor has authorised to represent him in these proceedings is the fourth claimant and not the fifth. However nothing much turns upon this point as no particular area was identified to the court as the area in possession of the said Narko Wornor at the time of the acquisition.

Having failed to satisfy me that he has a better title to the land than the claimants who were in possession at the time of the acquisition, the fifth claimant's claim must be dismissed.

On the evidence led by the first three claimants on the one hand, and the fourth claimants on the other, it became clear to me that each side was in occupation of a portion of the land at the time of the acquisition. The only problem left for me to solve upon the oral evidence, was the extent of land each occupied. To enable me to solve that problem I inspected the land, accompanied by the parties and had them point out to me on the land the features which mark their boundaries. That [p.83] inspection proved most fruitful. On the spot, a large measure of agreement was reached; for example, the first and third claimants admitted that at the time of the acquisition the fourth claimants were in possession of land including the western portion of the land acquired and south of the area of the first claimant's claim from pillar No. 5 northward to southern boundary of first claimant's portion, about 100 feet north of No. 11; the third and fourth claimants admitted that the first claimant Aposti Ayima was, at the date of the acquisition, in possession of land of which the whole of the area edged yellow on Exhibit "2A" is a part; it was agreed by the first, third and fourth claimants that the land north of the area claimed by the first claimant was a portion of land in the occupation of the Asafoatse Kwao Tibo and his people at the time of the acquisition, while the first and fourth claimants admitted that the whole of the land east of that claimed by the first and fourth claimants was occupied by the third claimant and his people.

The important point upon which there was no agreement is how far east the land occupied by the fourth claimants extended. When asked by me to show the eastern boundary of the land occupied by the fourth claimants, Kwame Noa Amedjo took the court along a line from a point where a road from the east which passes a few feet north of Pillar No. 28 ends on the southern boundary of first claimant's land, and walked in a straight line through the hedge shown on the plan to a point just a few feet west of Pillar No. 30, on the eastern slopes of the hill. The others laughed. That point is so close to the village and existing farms of the third claimant and his people that it is difficult to imagine that before the acquisition the third claimant and his people farming the eastern slopes of the hill now acquired would not have been occupying it.

By customary law if two people own land on opposite slopes of a hill their natural boundary must usually run on the crown of the hill, and not on one or other of the slopes. Applying that principle of customary law, I have come to the conclusion that the eastern boundary of the fourth claimant's land starting from the point on the southern boundary of Apotsi's land, as stated above, would run along the top of the hill in a straight line up to a point, marked Pillar No. 3. Therefore the area in respect of which the fourth claimants the Yilo Krobo families are entitled to compensation is that which I have indicated on the plan No. LD 3351A/18184 attached to this judgment and edged gold.

Subject to the award in favour of the fourth claimants in respect of the area edged gold the first three claimants, the Konor of Manya Krobo and his subjects are the persons entitled to compensation in respect of the land acquired.

It is ordered that compensation be paid to the fourth claimants in respect of the area edged gold; compensation for the remaining portion, including the area edged yellow claimed by Apotsi, be paid to the first and third claimants in terms of the agreement between the first three claimants announced by them to the court for themselves and for all other Manya Krobo families in occupation at the time of acquisition including Asafoatse Kwao Tibo and his people, the other Manya Krobo families whom the Konor represents. [p.84]

The fourth claimants will have their costs against the fifth claimant fixed at G20. The first three claimants will have their costs against the fourth claimants fixed at 7 guineas and their costs against the fifth claimant fixed at 50 guineas.

Decision

<P>Judgment for first, second, third and fourth claimants</P> <P>Claim of fifth claimant dism

Plaintiff / Appellant

Narter-Olaga for first, second and third claimants.Fourth and fifth claimants in person.

Defendant / Respondent

Referals

(1) Adjin III and Another v. Onano V and Another 14 W.A.C.A. 472;

(2) Adjin II v. Obadsen II and Another 14 W.A.C.A. 649.

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