Bruce v. Quarnor & Ors.

Bruce v. Quarnor & Ors.

[1959] GLR 292.

In the High Court (Lands Division), Accra

10 September, 1959

[293]
Ollennu J.:
(His lordship referred to the pleadings and contained:_)
The plaintiff’s first witness (a daughter) under cross-examination by counsel
for the defendant stated that her father the plaintiff had apportioned the land in
dispute, and had made a gift of various portions of it to his children. She stated
further that the area which the first defendant is alleged to have trespassed upon
is within the portion granted to her (the witness) by the plaintiff. The plaintiff’s
second witness, his son, also said under cross-examination that the plaintiff had
given portions of the land to his children, but had reserved a portion for himself.
This witness said that the portions which the second and third defendants are
alleged to have trespassed upon are within the area which the plaintiff had
reserved for himself.
[294]Learned counsel for the first defendants submitted that in view of the
evidence given by those two witnesses the plaintiff its shown to have no locus
standi particularly as regards his claim against the first defendant, because,
having granted the whole of his right title and interest in the land to his children,
there is nothing left for him in the land over which he could litigate. Counsel
submitted that the plaintiff’s claim should be dismissed on his ground.
This submission would have been very forceful were the law which I am
called upon to administer in deciding this suit purely English law and nothing
else. But all the parties to this suit are natives, and Section 87(1) of the Courts
Ordinance expressly lays down that:

“Native law and custom not being repugnant to natural justice, eq-
uity, and good conscience . . . shall be deemed to be applicable in
causes and matters where the parties thereto are natives and partic-
ularly but without derogating from their application in other cases,
in causes and matters relating to the tenure and transfer of real and
personal property . . . ”

By native custom, grant of land implies an undertaking by the grantor to
ensure good title to the grantee. It is therefore the responsibility of the grantor,
where the title of the grantee to the land is challenged, or where the grantee’s
possession is disturbed, to litigate his (the grantor’s) title to the land; in other
words, to prove that right, title or interest which he purported to grant was
valid.
The Judgment of Petrides C.J., delivered on the 1st July 1941 in Suit No.
26/1940, entitled Odonkor & anor. v. Allotey & anor. (and two other suits

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consolidated), is in point. In the course of that judgment the learned Chief
Justice said:

“It has been contended that A. B. Nartey is not entitled to maintain
an action for declaration in respect of land he sold before action was
brought. I am satisfied after listening to the evidence of the Asere
Mantse, he can do according to Native Law and Custom. There is
evidence I accept that Nartey was asked by his purchasers to sue for
a declaration of title, I hope that Nartey can, in the circumstances,
sue in respect of the plots he sold before action . . . In my view either
the original owner of the property or the purchaser can maintain an
action in respect of it.”

In practice, the vendor and the purchaser sue jointly.
That declaration of the customary law on the point of procedure was not
challenged when the case went on appeal to the West African Court of Appeal
as shown in the judgment of that Court of (7 W.A.C.A. 160). The judgment
of the West African Court of Appeal in Fiscian v. Tetteh (2 W.A.L.R. 192),
where the point is [295] dealt with indirectly, should also be referred to; and
see Majolagbe v. Larbi & ors. (p.190 of this volume).1
I hold therefore that the plaintiff is properly before the Court.
Some confusion arose as to the identity of the land claimed by the plaintiff.
This was created by the following factors:_

(a) there were slight differences between the dimensions of the land as described
in the writ of summons, and those as delineated on the plan attached to the
plaintiff’s statement of claim;

(b) there was a difference in the position of the land in relation to “Grid Lines,”
as delineated on

(i)the plan attached to the statement of claim;

(ii)that attached to the plaintiff’s Deed of Conveyance Exhibit “B”, and

(iii)that on a lay-out plan of the area, (Exhibit “3″) produced by a witness
for all the defendants, Nii Adama Asua II, an elder of the James Town
Stool.

The Court therefore caused a survey to be made of the piece of land which
each of the parties claims to have been granted to him or her, and a plan made
in consequence of that survey. The plan produced in consequence of that survey
was admitted in evidence, and marked Exhibit “X”.
The location of the land as shown on the plan attached to Exhibit ‘B’ was
superimposed on Exhibit “X”, and the plan ‘X’ was also superimposed on the
plan Exhibit “3″. This operation made it obvious that the land claimed by the
plaintiff, as pointed out at the locus, is in a different geographical position from
_________________________________1
That is, [1959] GLR 190.

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that shown on the plan attached to his Deed (Exhibit “B”), and from that on
the lay-out plan (Exhibit “3″).
In view of these prima facie differences and confusion, learned counsel for
the 1st defendants submitted that the plaintiff had failed to identify the land he
claims with the certainty that the law requires of a plaintiff, and that his claim
should therefore be dismissed. In support of that submission counsel cited the
following cases;

(1) Frimpong II v. Brempong II (14 W.A.C.A. 13);

(2) Emegwara v. Nwaimo (14 W.A.C.A. 347) and

(3) Amata v. Modekwe (14 W.A.C.A. 580)

Two outstanding features of the case are

(1) that the land as shown on all the various plans has precisely the same
shape, no matter the geographical region in which it [296] is placed on
the plan, and no matter the difference in some f the dimensions; and

(2) as will appear again presently, the important witnesses called for the de-
fendants admitted that plaintiff occupies, and has for a long time occupied
piece of land in the locality.

In such circumstances it is the duty of the Court, if it is to do justice, not
to dismiss the plaintiff’s claim by reason of the prima facie confusion, but to
ascertain from the evidence as a whole (both oral and documentary) whether
the actual area of land in respect of which the plaintiff sued has been identified
with certainty, and whether the pieces, or any of the pieces, of land which
the defendants has entered upon fall within that land in the possession and
occupation of the plaintiff. In other words, the Court must ascertain from the
evidence whether there is land efficiently identified at the locus by the plaintiff
as being in dispute between him and the other parties, and in respect of which
a Court can give effective judgment.
I have carefully examined the evidence as a whole, and particularly that of
the surveyor. He gave evidence pillars, the ages of which he was unable to tell.
He spoke of the situation of the ruins of a swish building, pointed out to him by
P.W.2.2 and indicated by him on the Plan Exhibited “X”. He gave evidence of
the close similarity between the shape of the plaintiff’s land as shown to him at
the locus and delineated by him on Exhibit “X”, and the shape of the plaintiff’s
land as shown on Exhibit “3″ produced on behalf of the defendants. I have
come to the definite conclusion that the land in respect of which the various
plans were made is one and the same piece of land, and not different pieces of
land. I am satisfied that the land which the plaintiff pointed out at the locus
to the Surveyor delineated in blue on the plan Exhibit “X” and on the lay-out
plan Exhibit “3″, is the land in dispute.
_________________________________2
Plaintiff’s Witness #2

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Learned counsel for the first defendant submitted that if there is certainty
about the identity of the land in dispute (which he says there is not) then since
both the plaintiff and the first defendant rely upon the James Town Stool as
their root of title, and since his client’s deed is prior in time, it must take
precedence over the deed of the plaintiff.
But in the first place the defendants document, though prior in time as re-
gards execution, is unregistered, whilst that of the plaintiff, is registered; the
first defendants deed cannot therefore have priority over the plaintiff’s docu-
ments.
[297] But that is a minor point. The most important point is that both the
plaintiff and the first defendant rely principally upon a grant made in accordance
with customary law. They used the deeds only as documentary evidence of the
grant already completed under customary law. Here I must say that I accept
the evidence of the plaintiff that, when he notice that the original grant made to
him in accordance with customary law had not been recited in the deed Exhibit
“B”, he requested Nii Kofi Akrashie II to have the correction made, and took
steps in that behalf. Nii Kofi Akrashie, however, was destooled before he could
do so.
Conveyance of land made in accordance with customary law is effective as
from the moment it is made. A deed subsequently executed by the grantor for
the grantee may add to, but it cannot take from, the effect of the grant. Thus,
a stool can by deed convey to the person the absolute ownership in the land
which it originally granted to that person by customary law and thereby except
the grantee from the performance of customary services which might normally
have been due from the grantee to the stool; but such a deed cannot operate to
revoke the grant made by custom.
The plaintiff, as proved by the witness for the defendants Nii Adama Asua
II, is a member of the royal family of James Town, the stool family. He, as
a subject of the said stool is entitled by customary law to occupy any vacant
portion of the land of the said stool. This he can do either upon actual or
implied grant.
Apart from the evidence led on behalf of the plaintiff that the stool granted
the land to him over 30 years ago, there is evidence of first defendants grantor,
James Quarshie Danso (D.W.1.), that the first went in the area in 1923, and
found Amaatse (P.W.3) already farming the area. Amaatse then showed him
the plaintiff’s land, which form a boundary with the land Amaatse was farming.
Amaatse said that the land now claimed by the first defendant is a portion of the
land, which Amaatse had been farming, and which, Danso said was subsequently
granted to him (Danso) by the stool.
Nii Adama Asua II, also deposed that in 1956, when the plaintiff approached
Nii Kofi Akrashie II, and his elders for a document, the plaintiff sand that he
wanted the document because he had been farming that land for a long time.
Thus, even if the plaintiff’s possession and occupation of the land was not
upon actual grant, his possession and occupation as a subject of the stool is good
title, and it will take precedence over any grant which the stool may purport
subsequently to make of any [298] portion of that land. By customary law a

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stool has no right to grant land which is in the occupation of a subject to any
one-subject or stranger-without the consent and concurrence of the person in
possession.
I am satisfied upon the evidence that the land in dispute as delineated in
blue on the plans Exhibit “X” was granted to the plaintiff over 30 years ago
by Nii Kojo Ababio IV, as stated by the plaintiff. I also accept the evidence
by the plaintiff and by each of his witnesses (particularly P.W.3. Amaatse)
together with the evidence of Danso (first witness for the first defendant) that
the plaintiff has been in continuous possession and occupation of the of the land
for over thirty year; when Danso first went to the land.
Danso gave evidence that at the time he was granting to his niece (the first
defendant) the land formally occupied by Amaatse, he did not invite Qmaatse or
the plaintiff, with whose lands his said land marched, to be present and agreed
upon, the boundaries. This satisfies me the first defendant did not know, and
could not know, the proper boundaries between her land and the plaintiff’s.
Nii Adama Asua II, deposed that the area was laid out some time after
grants had been made by the stool, and that, as a result of the lay-out, new
plots of land were given to former grantees in exchange for land already granted
to them. In consequently, he said, a new area consisting of 14 plots (as appearing
on Exhibit “3″) has been allotted to the plaintiff in exchange for his original
land, though the plaintiff had not gone to the stool to be shown that new area.
Counsel submitted, therefore, that if any trespass had been committed by any
of the defendants to the land granted by the stool to the plaintiff, the plaintiff
cannot complain.
It is difficult to appreciate this argument. Once land has been granted to
a person, it cannot be taken away from him and another piece given him in
substitution without his consent. The grantor would be acting unlawfully if,
without the consent of the grantee, he should grant the original land to another
person, allocating another piece of land to the original grantee. And the party
to whom a purported granted of such land is made would be guilty of trespass
if he entered upon it without the permission of the original grantee.
The defence put up by the second and third defendants is simply that they
occupied the land as grantees thereof from the James Town Stool. This defence
avail them so long as that portion of the land is not vacant stool land, but land
already granted to the plaintiff, and in his possession and occupation.
[299] I am satisfied upon the evidence

(1) that the land in dispute edged Blue on the plans ( Exhibit “X” and Exhibit
“3″) is the property of the plaintiff.

(2) that the plaintiff has been in possession of it for over 30 years;

(3) that without the leave and licence of the plaintiff, and without any lawful
authority, the first defendant entered upon that portion of it enclosed
between the three yellow lines and portion of the blue line forming the
southern boundaries of the land;

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(4) that the second defendant entered upon that portion of it enclosed by the
three pink lines and portion of the blue line forming the eastern boundary
of the plaintiff’s land;

(5) that the third defendant entered upon that portion of it at the south-
western corner thereof as is enclosed between the three green lines and
portions of the southern boundaries of the land; and

(6) that each such wrongful entry was made whilst plaintiff was in possession.

There will therefore judgment for the plaintiff for:

(i) declaration of title against each of the defendants to the land described
in his writ of summons and as delineated on the plan Exhibit “X”, and
thereon edged in blue.

(ii) An order for recovery of possession against each defendant of the portion
of the plaintiff’s land wrongly occupied by her;

(iii) £10 general damages against each defendant separately or her trespass to
the plaintiff’s land, and

(iv) injunction against each of the defendants, their agents and servants, and
each of their servants and agents, restraining portion of it, or in any man-
ner whatsoever interfering with the plaintiff in his ownership, possession
and occupation of the said land.

The plaintiff will have his cost against each of the defendants fixed as follows:

(1) 50 guineas inclusive against the first defendant;

(2) 40 guineas against the second defendant, and

(3) 40 guineas against the second defendant.

The assessor agrees with the judgment read.

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