Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 SASRAKU v. DAVID & OTHERS | GhanaLegal - Resources for the legal brains

SASRAKU v. DAVID & OTHERS


  • 1959-01-12
  • COURT OF APPEAL
  • GLR 7-16
  • Print

VAN LARE AG. C.J., GRANVILLE SHARP J.A. AND OLLENNU J.


Summary

Stool land in Ashanti?-Possibility of sale-possibility of change in native customary law?-Evidentiary value of documents not valid under Concessions Ordinance?-Nature of estate passing on a sale by native custom?-Costs?-Proper order on abortive trial where neither party at fault?-General level of counsel's fees in Ghana?-Accra counsel appearing in Kumasi.

Headnotes

The plaintiff (originally one Quao, Sasraku being substituted on Quao's death) sued as head and representative of a family-company or syndicate of land-owners. The latter were farmers of Teshie in the Ga State. They claimed an Injunction to prevent the defendants, Naja David and others (trading in partnership as the Naja David Sawmill Company), from trespassing on three pieces of land which the plaintiff averred was in the possession of the family-company as owners thereof by right of absolute sale to them from the Stool of Chempaw, with the knowledge and consent of the Paramount Stool of Kokofu. Upon this land the defendants were felling timber. The Kokofu Stool was subsequently joined as co-defendant.The plaintiff's case was that a group of farmers in Teshie in the Ga State had joined together to purchase land from the Chempaw Stool (which serves the Paramount Stool of Kokofu, to which, it is subordinate); that the purchase of [p.8] the land was by "Guaha;" that the performance of this native custom was evidenced by documents; that though those documents were by themselves void as Concessions under the Concessions Ordinance, they were evidence of a transaction by native custom. The Chempaw Stool did not appear to dispute the sales referred to in the three conveyances (Exhibits G. H and P).The defendant Sawmill Company relied on the protection of a felling agreement granted to them by the Kokofu Stool. The defendant Stool did not admit that the land was sold as alleged by the plaintiff, and contended further, (a) that land was not alienable by sale in Ashanti, and (b) that if there had been any sale by the Chempaw Stool it was a sale made without the knowledge or consent of the Paramount Stool (i.e. the defendant Stool) and was therefore invalid.The trial-judge (Sarkodee-Addo J.) examined in the course of his judgment the opinions of various writers on relevant topics, viz., Rattray on Ashanti, Professor Busia on The Position of the Chief in the Modern Political System of Ashanti, a Despatch by Governor Sir Shenton Thomas to the Secretary of State on the Restoration of the Ashanti Confederacy, Dr. Danquah on Akan Law and Customs, and a paper on Land Tenure in Ghana by Mr. Pogucki, the present Commissioner of Lands. Declining to follow the decision in Mensah and ors. v. Wiaboe (Div. Court (1921-25) 170), the trial-judge held that land was saleable in Ashanti, particularly in the Divisions or States where the Asantehene did not claim lands qua Kumasi Lands. He found that the plaintiff 's Company was in possession of the said land as owners by right of purchase under an absolute sale by "Guaha" from the Stool of Chempaw, with the knowledge and consent of the Paramount Stool of the Kokofu State. He granted a Declaration of Title, and an Injunction.The order made as to costs, which was subsequently varied in the Court of Appeal, is sufficiently set out in the judgment of that Court.The defendant and co-defendant appealed to the Court of Appeal (Civ. App. No. 46/58). The Court dismissed the appeal, though varying the order for costs. Final leave to appeal to the Privy Council was granted on the 25th May, 1959.

Judgement

Granville Sharp J. A.:

The claim in this action was for a declaration of title to and ownership of land, and for an injunction to restrain the defendants from trespassing on the said land.

The plaintiff, as representative of a family-company of Teshie people, based his title to the land upon three documents dated 23rd December, 1927, 4th August, 1934 and 12th April, 1935 [p.10] respectively, by which (he claimed) the said land had been sold to him absolutely in three parcels by the Stool of Chempaw. The co-defendant in the suit, representing the Stool of Kokofu, bore the whole burden of the defence, the defendant Sawmill Company simply relying on the protection of a felling agreement granted to them by the Kokofu Stool, and dated 30th October, 1953.

The co-defendant did not admit that the land was sold as alleged by the plaintiff, and contended further (a) that land is not alienable by sale in Ashanti, and (b) that if there had been any sale by the Chempaw Stool it was a sale made without the knowledge or consent of the Paramount Stool (the co-defendant), and was therefore invalid.

The co-defendant further, by amendment of his pleading, counter-claimed for a declaration of title to the land in dispute, for recovery of possession as against the plaintiff, and for damages for trespass as against the plaintiff.

Both the claim and the counter-claim, therefore, contended for absolute ownership of the land which was the subject matter of the action.

It was not disputed that the co-defendant was the Paramount Stool served by the Chempaw Stool, and the Chempaw Stool did not appear to dispute the sales set up by the plaintiff.

There was no dispute, either, as to the identity of the land in question, and Counsel for the co-defendant admitted that the lands described in the several documents produced by the plaintiff constituted, in fact, the whole of the land for which the rival claims were set up in the action.

At the trial the plaintiff admitted that the documents in themselves could not, in the light of the Concessions Ordinance, be relied upon as constituting valid documents of title, but contended that they had important evidentiary value as being confirmatory of the earlier customary sales to which they referred and at which, in each case, the custom of 'Guaha' had been performed. The family company represented by the plaintiff was a Ga family, and would seem to have wished, ex abundanti cautela, that the Ga custom should be observed, even in Ashanti.

In the course of the hearing before the Land Court the issues became narrowed. It could not be questioned on the evidence that the three purported sales relied upon by the plaintiff had in fact taken place, and it was not seriously disputed that 'Guaha' had been performed on each occasion. The evidence upon these matters was [p.11] all one way. There remained only the issues as to whether land in Ashanti was alienable by sale and, if so, whether the sales here in question were carried out without the knowledge and consent of the co-defendant, the Stool paramount over the vendor Chempaw Stool.

The learned Judge of the Land Court resolved both these questions favourably to the plaintiff. He therefore dismissed the counter-claim and entered judgment for the plaintiff, granting him a declaration of title to ownership of the land and an injunction as prayed. He awarded no damages for trespass, but in his award of costs fixed Counsel's fee at two thousand guineas.

From the judgment so given the co-defendant has appealed to this Court. He has appealed also against the award of costs. I will deal first with this latter aspect of the appeal. The general order, by which the learned Judge directed that the plaintiff should have the taxed costs of the action against the defendant and co-defendant jointly and severally, could not in ordinary circumstances be disturbed by this Court, but the learned Judge in this case went farther. He concluded his judgment with the following direction:

"The plaintiff will also have his costs of the abortive proceedings in pursuance of my order bearing date the 19th day of June, 1957."

The Order referred to was as follows:-

"It appearing that on the 8th day of May, 1956, upon the hearing of the Summons for Directions before Benson J., on the appearance of Mr. Franklin, Counsel for the plaintiff, and Mr. Prempeh, Counsel for the defendant and the co-defendant, it was ordered, inter alia, that the trial to be by Judge with one Assessor in pursuance of the provisions of section 25(1)(b) of the Courts Ordinance (Cap 4) (vide Dake II etc. v. Nyabu and others (W.A.C.A., 3rd December, 1945, cyclostyled Judgments). "And whereas notwithstanding the said Order the trial commenced and proceeded without the aid of an Assessor, both Counsel having neglected or failed to bring to my notice the said order at the commencement of the trial, I do hereby order the proceedings to be stayed and to be recommenced with the assistance of an Assessor, and do appoint Mr. H. E. Akyeampong of Kumasi as an Assessor for the trial accordingly.

"Costs of the abortive proceedings. up to and including the 7th day of June, 1957, to be costs in the cause to abide the ultimate result of the trial. Such costs to be taxed. "Re-hearing to commence at 11.15 a.m. today." [p.12]

We were informed by Counsel both for the appellant and for the respondent that during the first three days of the hearing they were not conscious that Benson J. had directed on the 8th May, 1956, that the trial should be with an Assessor. It seems to be the case that the Judge did not read out the order which he was making, although he set it out upon the record. Learned Counsel for the plaintiff had raised an objection to the appointment of any Assessor, and in the circumstances was left under the erroneous impression that his objection had prevailed. Indeed, both Counsel were under that impression. No one was in any way to be blamed, and certainly it was not the fault of the defendant and co-defendant any more than of the plaintiff. I find it difficult in these circumstances to understand why the defendant and co-defendant should be burdened with the whole of the costs of the abortive hearing. In fact, on the 5th December, 1957 the Assessor became ill. The learned Judge discharged him and continued the trial without him over six hearing days, which seems to indicate that it could from the outset have been so heard. Taking all these matters into consideration, I would discharge this part of the learned Judge's order as to costs, and direct that each party do bear his own costs of the abortive hearing; that is to say, up to the 19th June, 1957.

As to Counsel's fee, fixed by the learned Judge at 2,000 guineas, I would hold that this is manifestly excessive, and out of all proportion to the general level of fees allowed by the Courts in the country. I cannot find myself able to revise the first impression that I formed upon the matter by any of the arguments adduced by learned Counsel, either on the ground that the case was of far-reaching importance, or because it happened that the plaintiff engaged Counsel who lives and practices in Accra, and who had therefore to make frequent journeys to Kumasi where the trial was held. I would substantially reduce this fee.

Passing now to the legal substance of the appeal, I would say first that the Notice of Appeal seems to me to be somewhat supercharged with reasons set up to support the view that the learned Judge was wrong in his decision and in his reasoning. There are no less than ten grounds of appeal, but learned Counsel did not find it necessary to argue all of them because it is reasonably clear that they are, taken as a whole, variations upon three main themes:

(a) that the sales by custom of 'Guaha' were not proved,

(b) that it was not proved that the sales were made with the knowledge and consent of the Paramount Stool (the co-defendant), and

(c) that sale of land in Ashanti is not possible under native custom. I cannot accept any of these contentions. [p.13]

The learned Judge made exhaustive research into the question whether land in Ashanti is capable of alienation by sale, much of which research, it is true, entered channels which could not be expected to lead very far in a Court of Law. He did, however, consider the opinions of learned writers whose views are authoritative, and found there what is supported by the evidence on the record, that over the past quarter of a century (and more) the impact of western ideas of land-holding upon what was at one time a rigid system of native customary law has led to a relaxation of these ancient laws. In consequence, it is not uncommon, though it is not usual, to find land being sold in parts of the country, including Ashanti, where in former days such a transaction would not have been sanctioned by native customary law.

The evidence given by the co-defendant, and by his main supporting witness, itself goes a very long way to support this view. The co-defendant admitted to having expressed the view that: "A sub-stool cannot give away or sell any land either to a stranger or Ashanti man without my permission." He said further, "I still say that before land could be sold by the Chempaw Odikro, he, being a caretaker merely, must first seek the approval of the Kokofu Stool and the elders." References were made by him to other cases in which chiefs and sub-chiefs had sold land, and whose only offence would appear to have been that they did it without consulting the elders.

One of the co-defendant's witnesses, one Appiah, the Chief Secretary to the Asanteman Council, said,

"I have heard of the custom of 'Guaha,' but not in Ashanti. In Ashanti we have 'Tramma,' which is the equivalent of 'Guaha' in other Akan States. `Tramma' is the effective means or ceremony of sale outright in Ashanti of all properties."

In cross-examination he went farther. This is a part of his evidence:

"So far as I know and can remember there has never been any declaration, before or after 1952" (i.e. the year of the State Councils Ashanti Ordinance. 1952), "that lands are not saleable in Ashanti. Before lands became valuable in Ashanti, there were gifts of land in Ashanti. The transfer of the whole interest in land is a common incident of native customary law, but sometimes only agricultural rights are transferred. When I said land in Ashanti is not saleable, that was the case when land had no value, but it was a common practice to transfer the whole interest in land (for services rendered) subject to the share (if any) of the grantor in case of treasure-trove, and for mineral rights in case of Stool lands." [p.14]

It is clear, to my mind, that the co-defendant really had no faith at all in the contention that land was not saleable in Ashanti. His real defence was that the land was sold without the knowledge or consent of his Stool, although he said in evidence, "My defence in this action is two-fold (1) that land is not saleable in Ashanti, and (2) the land in question was sold to the plaintiff's company without the knowledge and/or consent of the Omanhene of Kokofu, Nana Kofi Adu. Of these the first defence (that land is not saleable in Ashanti) is more important." Neither his evidence nor that of his supporting witness, Appiah, can be said to uphold this latter contention. Indeed, it traverses the whole of it, and in my view the learned Judge was perfectly right in holding as he did on this part of the case. There was a mass of evidence led by the plaintiff in support of such a finding, to which I need not refer.

Mr. Hayfron-Benjamin, for the appellant, referred to the case of Mensah ors. v. Wiaboe (Div. Court (1921-1925) 170), a case by which, so he argued, the learned Judge was bound. The learned Judge was not, in my view, in any way bound by a decision of a Court of equal and concurrent jurisdiction with his own, and even if he were bound by it, this Court is not. I would find it impossible to uphold the principle that appears to be enunciated in the case, and for which learned Counsel invited our support, that no evolutionary change in native customary law since 1874 can be recognized in these Courts, and that only those elements of that law which subsisted before the date mentioned can be administered by the Judges in Ghana. Stagnation of the law in a fast developing State should be regarded with abhorrence.

As I have already said, there was strong evidence that 'Guaha' was at the time of these sales recognised in Ashanti, though generally it is referred to there as 'Tramma'. The documents produced by the plaintiff referred to the customary law, and it is legitimate to draw the inference from this that what is referred to is `Guaha?' or `Tramma.

The question then arises, whether the transactions evidenced by the documents were carried out with the knowledge and/or consent of the Omanhene of Kokofu, at that time Kofi Adu.

There was evidence that the Omanhene had, in fact, assented to other sales of lands in the locality, and it was proved that certain destoolment charges against him (to which he made no answer) included complaints in respect of such sales. Two important facts emerged in the course of the evidence. In relation to the first and the third sales, the documents are witnessed by the Linguist to the Omanhene of Kokofu, which signature is binding on the Omanhene. [p.15]

It would be unlikely that the Omanhene could have been in ignorance of the intervening sale, though no signature affecting him appears on the relevant document. The three sales were of contiguous parcels of land, comprising in all an area of some eight square miles.

At the date of the objection raised by the later occupant of the Stool, these portions had been occupied by the plaintiff family company for periods varying between 20 and 30 years. The whole area had been clearly demarcated, and the boundary cuts and marks had, it appears, been meticulously kept and cleaned. Even if it could not be said (as I hold it could) that on this evidence the learned Judge was correct in finding knowledge and consent on the part of the Kokofu Stool, the facts clearly constitute proof of such laches and acquiescence on the part of the Stool as would render it inequitable to interfere with the plaintiff in occupancy of the land. It would be still more inequitable if it should be in the interest of the Sawmill Company, whose felling agreement is in the most general terms, and would seem to grant them carte blanche to wander over the whole length and breadth of the Kokofu Stool lands, and fell wherever they encountered fellable timber, this to the extent of thousands of trees.

The learned Judge, rightly in my opinion, summed up his view of the co-defendant's conduct in the following words: "Such attempts?...from the evidence, constitute concerted determination of a Stool occupant to regain Stool lands lawfully sold by his predecessor to strangers, in order to acquire further use or rents therefrom." He said, and I respectfully agree with him, that to encourage such a manoeuvre would "constitute. . .'a travesty of the administration of justice."

In the result, I agree with the learned Judge in his finding that the plaintiff proved his case that the land was sold to his family with the knowledge and consent of the occupant of the Kokofu Stool and his elders. Even if I were to disagree, I would hold that the co-defendant is estopped by laches amounting to acquiescence.

It remains to be considered what estate was transferred by the ?"sales" of which the documents are evidence. The plaintiff, as I have said, earlier conceded that no title could pass by the documents themselves. They cannot operate as validated concessions because they sin against the Concessions Ordinance in two respects:

(a) the area involved exceeds 25 acres, and (b) no certificate of validity exists, no enquiry having been sought or held. They are, however, evidence of the facts stated in them, that the land was sold according to native custom. It therefore follows, in my opinion, that such [p.16] estate passed as would usually pass on such a sale, as between natives, of Stool lands. This is not an unqualified ownership or right to the land, but a possessory right to occupy the land and enjoy the usufruct thereof; in other words, the usual native tenure. The price paid by the plaintiff can be looked upon as payment of tribute, partly in advance. That further tribute was payable was recognised by the parties in a document dated 23rd December, 1927, which reads as follows:-

"THIS AGREEMENT made the 23rd day of December, 1927 that we the undersigned have agreed that if any Gold Manganese or Ore will be found out in the said land from Hill or Hills by any Miner or Miners the Profit or Profits thereof will be divided into three equal parts.

"That two-thirds of the said profit or profits will go into the hands of the Purchasers aforesaid and one-third thereof should go into the hands of the vendors aforesaid being friends to the said Purchasers.

"In witness whereof we have hereunto set our hands this 23rd day of December, 1927."

By this document the allodial right of the real owner was recognised, and, so long as this is so, and the plaintiff-family does not become extinct, or desert the land, they are entitled to remain on the land and have the same protection as if they were in fact the owners. This must, in my view, be taken to be what the learned Judge of the Land Court meant when he pronounced "a declaration of title to the piece or parcel of land the subject matter herein." The Order for possession followed naturally upon the finding of trespass, which was fully justified by the evidence.

In the result, apart from revising the order for costs made by the learned Judge in the respects I have indicated, I would dismiss this appeal. For 2,000 guineas Counsel's fee I would substitute 500 guineas, having already dealt with the costs of the abortive hearing.

JUDGMENT OF VAN LARE Ag. C. J:

I agree.

JUDGMENT OF OLLENNU J:

I also agree.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Hayfron-Benjamin, with him Prempeh

Defendant / Respondent

Franklin

Referals

(1) Mensah and ors. v. Wiaboe (Div.  Court [1921-25] 170)

(2) Sintim v. Apeatu and ors. (2 W.A.C.A. 197)

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/00298dd63d559bb55b1cb1911c3713df): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48