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VANDERPUIJE v. ADAM


  • appeal
  • 1961-11-27
  • HIGH COURT
  • GLR 733-736
  • Print

OLLENNU, J.


Summary

Customary law?-Determination of the common boundary between occupiers of two adjoining lands.

Headnotes

The plaintiff bought a piece of land from a member of the Quarcoo family in 1940. He took a conveyance dated the 8th February, 1940. He and his vendor fixed pillars at the four corners of the land to mark its boundary. Sometime later the defendant acquired the adjoining land. He fixed iron rods to mark the boundary between him and the plaintiff?'s land. It happened that the boundary he thus demarcated sliced off a portion of the plaintiff 's land about eight to nine feet wide. The plaintiff sued the defendant in the Accra West Local Court for damages for trespass. The local court magistrate dismissed the claim. He accepted the defendant's boundary as the common boundary between the two land owners. The plaintiff appealed.

Judgement

APPEAL from a judgment of the Accra West Local Court in an action against an adjoining land owner for damages for trespass.

By his writ issued in the Accra West Local Court, the plaintiff-appellant claimed damages for trespass to a piece of land which is a portion of land situate at Achimota. The plaintiff proved conclusively, both by oral and documentary evidence that the said land was sold and conveyed to him by one C. T. Quarcoo in 1940, that he was placed in possession upon the sale to him, and that together with his vendor he fixed pillars at the four corners thereof. He led evidence that the defendant-respondent came upon the adjoining land a long time after he, the appellant, had been in possession of his land, and later encroached upon his, the appellant's land, by erecting a temporary structure across the boundary extending some eight to nine feet into his land. Evidence was led on behalf of the appellant that the respondent admitted in the presence of witnesses that he had trespassed onto the appellant's land. These facts were not cross-examined to.

Again evidence was led on behalf of the appellant that all the lands at Achimota belong to the appellant's vendor's family, the Quarcoo family. Further evidence was led on behalf of the appellant that it was the father of the appellant's vendor who granted and conveyed the land in dispute to the appellant's vendor. There is no evidence to refute the allegation that the Quarcoo family are the owners of the Achimota lands of which the land in dispute is a portion, and until the sole witness for the respondent came into the witness box, it was never alleged that some person other than the father of the appellant's vendor and members of the Quarcoo family had taken part in demarcating the land to the appellant's vendor. The local court magistrate should therefore not have dismissed the evidence of the appellant and his vendor so lightly.

By customary law, where a person is in possession of land in an area and another person comes to acquire and occupy the adjoining land, the boundary of the land of the person already in possession becomes the common boundary between his land and the adjoining land which the new-comer occupies. Again by customary law a person is not entitled to fix a boundary between his land and an adjoining land in the absence of the owner or occupier of the adjoining land. Consequently when a person goes on land, a new-comer to the area, he cannot by his unilateral act bind a person he meets in occupation of land by a boundary he fixes between the land he comes to occupy and that already occupied by the one he meets.

According to the respondent himself he fixed iron rods at two corners to form a common boundary between his land and the appellant's land. He fixed them in the absence of the appellant and his vendor. That act of his is wrong; the law does not permit him to do so. On the contrary, [p.735] he has to accept the boundary of the land as executed before he went on the land unless the person already in possession agreed with him to fix a new one.

The local court magistrate stated that the appellant had said that he erected his corner pillars only four years ago. In this respect he misdirected himself. The evidence both of the appellant and his vendor P.W. 3 is that pillars at the four corners of the appellant's land were fixed at the time of the sale, which according to the conveyance exhibit A was made in 1940.

The local court magistrate gave judgment against the appellant on the grounds that iron rods fixed by the respondent must be deemed to mark the common boundary between the parties. In this he misdirected himself. Since at the time the respondent went upon the land, the area adjoining the land he acquired was in possession of someone, the boundary of the person already in possession must customarily be deemed to be the common boundary between the two lands. Such a boundary, as pointed out, cannot be altered except by the joint act of the owners of those two adjoining pieces of lands. The local court magistrate therefore erred in rejecting the appellant's boundary.

Again since the witness for the respondent is not a member of the Quarcoo family, the owners of the land, and since there is no evidence to prove how he, the stranger, came to demarcate a portion of the Quarcoo family land to a member of that family, the local court should not have preferred his confused evidence to that of the vendor, P.W. 3, a member of the family. Even P.W. 2 the headman of Achimota himself said that it was Quarcoo, and other elders who appointed him headman of the village. He further said that when the respondent was served with the writ of summons in this case and he brought the same to him, as headman of Achimota, he suggested to the respondent that they should show the said writ of summons to Mr. Quarcoo, in his capacity as one of the elders who made him headman of the village, implying that the authority over the Achimota lands is vested in the Quarcoo family.

The position therefore is as follows: the appellant proved that the whole of the Achimota land belongs to the Quarcoo family; that portion of that land including the small area in dispute in this case was granted by the said Quarcoo family to Charles Tetteh Quarcoo, P.W. 3, a member of the said Quarcoo family; that Charles Tetteh Quarcoo sold and conveyed that portion to the appellant by a deed, exhibit A, dated the 8th February, 1940, and placed him in possession of the same, and he and his vendor fixed pillars at the four corners of that land; that he has been in possession of the land since it was sold and conveyed to him, and his pillars have remained in their position; that while he, the appellant, was in possession of his said land, the respondent came and occupied the adjoining land; he erected a temporary structure which crossed the appellant's boundary and encroached on about eight feet of the land occupied by the appellant. P.W. 3, the appellant's vendor gave evidence of the extent of land which he sold and conveyed to, and which he placed the appellant in possession of. At the inspection of the land he showed the local court magistrate that [p.736] area which he placed the appellant in possession of, and he also showed the corner pillars he fixed for the appellant. That evidence of the appellant and of his vendor was not challenged. In those circumstances the local court should have given judgment for the appellant, unless the respondent could prove a superior title. He, the respondent, produced evidence that an uncle of his authorised him to occupy land in the area; that when he first went on the land his said uncle did inform him that the appellant's vendor was already in possession of the adjoining land. He did not consult the appellant's vendor about the boundary; rather, he on his own, fixed iron rods on two corners to serve as a common boundary between him and the person he met in possession of the adjoining land, but fixed none on the other two corners of his land.

By customary law the only boundary which could lawfully be called the common boundary between the land which the appellant was occupying and the land which the respondent later came to occupy, is the boundary which existed before the respondent went upon the adjoining land, or a fresh boundary fixed by the appellant and the respondent upon common agreement. But quite contrary to the customary law, the local court magistrate accepted as binding upon the appellant an alleged boundary which the respondent fixed upon his own authority and without reference to the appellant. It must be remarked in passing that it is strange that the respondent should fix pillars or iron rods to mark two corners only of his land and not the other two. The error of the local court in so misdirecting itself on the principle applicable to such a case of trespass as this one, has occasioned a grave miscarriage of justice and its judgment cannot therefore stand.

The appeal is allowed, the judgment of the local court is set aside including the order as to costs; any costs paid to be refunded. For that judgment of the local court the following is substituted: there will be judgment for the plaintiff against the defendant for G50 damages for trespass. The appellant will have his costs in this court fixed at 30 guineas, and his costs in the local court fixed at G10 inclusive.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

E. N. Moore

Defendant / Respondent

P. F. O. Anteson

Referals

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