Budu II v. Caesar & Ors.
[1959] GLR 410.
In the High Court (Lands Division), Accra
26 November, 1959
[413]
Cases cited:
(1) Gyeniwa v. Mumah (W.A.C.A. Cyclostyled judgments, Nov.-
Dec. 1947; p. 49);
(2) Kwasi & ors. v. Larbi ([1953] A.C. 164);
(3) Ankrah & ors. v. Dabra & anor. (1 W.A.L.R. 89);
(4) Twumasi v. Badu (2 W.A.L.R. 204);
(5) Yao v. Amobie & anor. (Unreported);
(6) Gibbs & anor. v. Flight & anor. ((1853) 138 E.R. 1417);
(7) Munday v. Norton ([1892] 1 Q.B. 403);
(8) Wyndham v. Jackson ((1938) 2 A.E.R. 109);
(9) in re An Arbitration between Green & Co. & Balfour, Williamson
& Co; ((1890) 63 L.T.325);
(10) Ohimen v. Adjei (2 W.A.L.R. 275);
(11) Thompson v. Mensah (unreported).1
Ollennu J. :
(His lordship set forth the history of the proceedings, and continued:_)
I shall deal firstly with the issue whether or not there has been a valid
arbitration upon the dispute between the plaintiff and the Caesar family so as
to operate as an estoppel against the Caesar family.
It is not very material by what name the layman calls proceedings which in
the eyes of the law amount to a binding arbitration_he may call it arbitration
or settlement. Whether any particular proceedings constitute arbitration or
negotiations for a settlement is a question of low, to be decided by the court
upon the evidence before it. In the case of arbitration, the award is binding
upon the parties to it whether or not they accept it, the parties cannot resile
after the award has been published. In the case of proceedings in the nature of
negotiation for settlement of a dispute, the decision becomes binding only after
it has been accepted by the parties, and not other-wise (see Gyeniwa v. Mumah
(W.A.C.A. Cylostyled Judgments, [414] November-December, 1947 page 49),
Kwasi & ors. v. Larbi, ([1953] AC. 164); Ankrah & ors. v.Dabra & anor, ( 1
W.A.L.R. 89) ; Twumasi v. Badu (2 W.A.L.R. 204); Yao v. Amobie & anor.,
(Civil Appeal No. 77/57, Judgment of the Court of Appeal delivered on the 3rd
of May, 1958).
_________________________________1
Ed. _ It appears that this case was later published as Thompson v. Mensah, 3 W.A.L.R.
240 (1957).
1
In customary law there are three essential characteristics of an arbitration,
as opposed to negotiations for a settlement. These are:
(a) a voluntary submission of the dispute by the parties to arbitrators for the
purpose of having the dispute decided informally, but on its merits;
(b) a prior agreement by both parties to accept the award of the arbitrators;
and
(c) publication of the award.
As to what amounts to voluntary submission, the following observation were
made by the Court of Appeal in Yaw v. Amobie cited above:
“It is very rarely that two people who are quarreling would meet and
agree together that they would submit their dispute to arbitration.
The usual thing is that one party makes a complaint to somebody,
the other party is sent for, and if he agrees, the party to whom the
complaint is made arbitrates upon the dispute. Whether or not a
party had agreed to submit to the arbitration is a question of fact
in each case, to be determined from the conduct of the parties and
other circumstances.”
I have now to apply these principles to this case.
The evidence of the alleged arbitration in this case was given by the plaintiff
and two of his witnesses, and (in cross-examination) by one witness called on
behalf of the Caesar family. The following is the account given by the plaintiff:
“The case with Caesar was withdrawn form court, and dealt with at
arbitration presided over by the late Omanhene Nana Akoto. That
dispute was in respect of three portions of the land. The arbitrators
awarded me the remaining two. Caesar paid £6 arbitration fee for
inspection of the land.”
Cross-examined, the plaintiff said:
“Yes, I have said that was the late Caesar who took the case to
arbitration. I admit that Caesar was the one who instituted the
action in the Native court, and that the suit was later transferred
[415] to this court. But I deny that it was the Omanhene Nana
Akoto who came to court and asked that he should be allowed to
withdraw the case from the case from the court, to try and settle
it. It is not true that the arbitration was not concluded, and that
the case was continued in the Land court. It is not correct that
the arbitration was protracted, and that in consequence the late
Caesar wrote to the President that he was having the case heard
in the court. I say the arbitration was concluded in three days. It
is true that Caesar wrote to the arbitrators complaining that the
arbitration had not been concluded, but this was about two years
after the arbitration had been concluded.”
2
It must be pointed out at this stage that, as will appear later on, the evidence
of the plaintiff that it was Caesar and not the Omanhene who asked for settle-
ment of the Case out of court, was contradicted by the plaintiffs 4th witness
(Opanin Kofi Dede), who gave the following account of the alleged arbitration
[416] in his evidence-in-chief:_
“In 1947, on the 1st November (a Monday) the late Nana Asare
Akoto, Omanhene of Akwamu, sent a message to Nana Kofi Bam-
foro, Ohene of Kotropel, to say that on Caesar had taken motion
against Nana Kofi Budu in the High court, and that he (Nana Asare
Akoto) had gone and withdrawn the case from the High court to try
to settle it, and that he wanted Nana Kofi Bamforo and his elders
to assist him in the attempt to settle the matter. I was with Nana
Kofi Bamforo when the message was delivered to him. As a result
of this request we went to Atimpoku the next day, Tuesday, the 2nd
November, 1947 to assist in settling the matter.”
Again, the evidence given by the plaintiff that it was about two years after
the arbitration that the late Caesar wrote his letter of protest to the president
of the alleged arbitration, is also contradicted by Caesar’s letters (Exhibits “J1″
and “J2″ ). These were tendered on behalf of the plaintiff, and his counsel sub-
mitted that they were conclusive proof of all the three essential for a settlement.
Exhibit “J1″ is a letter dated the 15th September 1947 and speaks of “arbi-
tration held on the 15th and 16th of August” of that same year. Exhibit “J2″ is
a letter dated the 18th October, 1947 ; it too, speaks of arbitration held “15th
and 16th of last August this year,” i.e. 1947. But the following passage appears
in Exhibit “J1,” the letter which Caesar addressed on the 15th September, 1947
to the President of the alleged arbitration:
“With reference to the arbitration held at Atimpoku on the 15th and
16th August between Mr. Budu (defendant) and myself, which was
presided over by yourself, I have written on two occasions 18/8/47
and 29/8/47 requesting you to forward a copy of the proceedings
and your decision thereon, for my perusal, and signature, but up to
the time of writing I have not heard from you.
“In view of your failure to comply with my above request and cer-
tain utterances made by the said Nana Budu before Mr. Otinkorang
and myself on the 9th September, 1947, at Senchi, I wish to notify
you that I am sending the case back to the Court High for final
settlement.”
The words “for my perusal and signature” are significant, for they indicate
that in the contemplation of the parties any decision arrived at in the proceed-
ings which they called “arbitration” required the acceptance by the parties to
make it binding. These facts, taken together with the positive evidence led
by the witnesses for the plaintiff that the sums of £6 paid by each party were
3
special fees for the inspection of the land, not arbitration fees as such, lead to
the assistance of other people, was nothing more than to attempt to negotiate
a settlement of the dispute between the parties.
While on these letters (Exhibit “J1″ and “J2″), I must refer to the sub-
missions of learned Counsel for the plaintiff that these letters corroborate the
evidence of P.W. 4 that the meetings for the alleged arbitration were held on
two days; and that therefore the court should reject the evidence of the old
man, Daniel Tei, who said that he attended only one meeting, that if a second
meeting was held he was not aware of it, and that no money was paid at the
one meeting which he attended. Daniel Tei, however, was cautious witness and
of excellent demeanour; he was not prepared to swear to any fact of which he
had no clear recollection. Each of these Exhibits “J1″ and “J2″ which, counsel
submits, contain the whole truth and nothing but the truth, says that the two
meetings in connection with what they styled “arbitration” were held on the
15th and 16th August, 1947. Those letters were written on the 15th September
and the 18th October, 1947, barely one month and two months respectively af-
ter the meetings. P.W.4, whom counsel invites the court to accept as a truthful
and an honest witness, went into details of days and dates. He deposed that
he and his Divisional chief received the message of the Omanhene on Monday,
1st November, 1947, and that the arbitration was held on the following two
days, Tuesday [417] and Wednesday, the 2nd and 3rd November, 1947. That
evidence is flatly contradicted by each of the letters, Exhibits “J1″ and “J2″.
I am satisfied, even upon the evidence produced on behalf of the plaintiff
himself, that there was no submission to arbitration, and no prior agreement
by Caesar to be bound by any decision of the arbitrations, and that no award
was published. I am further satisfied that the late Nana Akoto used his good
offices in an attempt to effect a negotiated settlement of the dispute between
the parties, in the hope that a decision arrived at by him and his assistants
might be satisfactory to the parties, but he failed to achieve that. He did not
reply to the letter Exhibit “J1″ and contradict its contents. I am satisfied that
no decision was in fact given, and none accepted by Caesar.
But there is something more fundamental in arbitration according to cus-
tomary law than the principles set out above. The first distinctive characteristic
of a valid arbitration according to customary law is that it must be “a voluntary
submission of a dispute by the parties to arbitrators for the purpose of having
the dispute decided informally, but on its merits.”
The words “on its merits” mean that arbitration according to customary
law is not an arbitrary decision. It is exactly the same thing as arbitration
under English law. It is the reference of a dispute or difference between not less
than two parties, for determination after the hearing of both sides in a judicial
manner, by a person or persons other than a court of competent jurisdiction
(Halsbury, 3rd Edition, volume 2, page 2, paragraph 1; Gibbs v. Flight (1853)
138 E.R. 1417); Munday v. Norton (1892) 1 Q.B. 403); Wyndham v. Jackson
(1938) 2 A.E.R. 109).
The only difference between arbitration and a law-suit is that in arbitration
the parties choose the person whom they wish to conduct the arbitration and to
4
decide their case; whereas a law-suit can be adjudicated upon only by a Court
vested with jurisdiction by the law of the land, the trial may be by any Judge,
Magistrate, or other judicial officer vested with jurisdiction in that behalf, and
the case would in fact be tried, except in very special circumstances, by any
such Judge, Magistrate, or other person before whom it is listed, whether or
not the parties to the suit liked that particular person to try their case. It is
of the utmost importance that there should be a judicial hearing of each party
to arbitration, particularly as there is no right of appeal from an award. Grave
injustice would be done if decisions of arbitrators were arbitrary.
[418] Now since in arbitration both sides must given a fair hearing in a
judicial manner, the rules which prevail at the trial of an action in Court must
be followed so far practicable. Each party must state his case fully, be available
for cross-examination, and tender such documents (or other evidence) as he
relies upon in support of his case (see Halsbury 3rd Edition, vol. 2, page 34,
paragraph 78; and page 36 paragraph 82).
In arbitration by customary law the practice and procedure for the time
being followed in the Native Court or Tribunal of the area must be followed as
nearly as possible. Fry J., in the course of his judgment in in re An Arbitration
between Green & Co, and Balfour & Co. ((1890) 63 L.T. 325 at p. 327) stated
the principle as follows:_
“The first and most important question in this case is, what was
the subject in dispute between the parties when this arbitration was
had recourse to? That is a subject upon which, according to all
the authorities, parol testimony may be received and course must
be received, because otherwise arbitrators might be taking upon
themselves to determine matters which had never been in any way
submitted to them”
And see also the following passage in Anon ((1814) 2 Chit. 44), which illus-
trates the principle:-
“If an arbitrator, to whom an action for not repairing a house has
been referred, makes his award on a view of the premises without
calling the parties before him, the court will set aside the award; for
though the premises may almost tell their own tales, yet there may
be other facts which ought to be enquired into, such as payments by
the party, or excuse for not repairing.”
If it shown on the face of proceedings of arbitration according to customary
law that the practice and procedure according to custom was not followed,
or that no proper judicial hearing took place before an award was made, the
proceeding would be null and void ab initio, and would not create any necessity
to institute proceedings to have them set aside. It is a fundamental principle
of customary law that no person shall be condemned either in respect of his
person or his property without being given a fair hearing.
5
Bearing in mind the principle that the purpose of arbitration according to
customary law is for the determination of a dispute after a fair hearing of both
sides in a judicial manner, I shall now examine the evidence led by the plaintiff
as to the conduct of the alleged arbitration. P.W. 1 (Emmanuel M. Akoto) was
the first person who gave evidence of the proceedings at the alleged arbitration.
He said:
[419]“I knew the late Caesar, and I know that at one time an ar-
bitration was held upon a dispute between you (the plaintiff) and
the late Mr. Caesar. The late Nana Asare Akoto, then Omanhene
of Akwamu, invited me to assist him in an arbitration on a dispute
between the plaintiff and the late Caesar. We the arbitrators, asked
Mr. Caesar to state his case, and he did so. He said he claimed three
different plots of land, the first was situated at the Southern side of
Atimpoku and the other two were situate North of Atimpoku. Yes,
he told us how his said lands could be identified. He said they were
lands bounded by Ntome trees, all the three plots. That fact was
stated in his writ of summons. Nana Budu, on the other hand, said
he could only remember that Mr. Caesar had only one plot of land.
These were all the statements made by the parties.
“After we had heard these statements of the two people we said we
would first go and view the land. We did so. On the land we found
Ntome trees on the land situate on the South. On the plots to the
North he (Caesar) was not able to point out any Ntome trees. He
did not point out any land marks to us. After the inspection we
returned to town, we then asked each of the parties to pay £6 for
the inspection and each paid pending the award.”
“After that we made an award. We said that because Nana Budu
had agreed to Mr. Caesar’s ownership of the Southern plots and
because of the Ntome trees we found on the plot, Mr. Caesar had
the right to that plot. We did not give Mr. Caesar any plot except
the one upon which he was able to point out Ntome trees, and which
Nana Budu agreed to.”
In answer to the Court he said:
“The account I gave of the arbitration we held is a full account of
all that took place.
QDo you say that what you have described is a valid arbitration
according to customary law?
AYes, the writ of summons mentioned Ntome trees, and we saw
none on the other two plots, so what we did is right.”
The next witness who spoke on the issue was Opanin Kofi Dade (P.W.4).
He said:
6
“After we had heard what each side had to say we said we would
first of all inspect the land, and we asked each party to pay £6
for the inspection. Before we went to inspect the land, Mr. Caesar
said he had three plots of land at Atimpoku with villages on them.
[420] That is all the statement he made. He also said there were
Ntome trees on the boundaries of these pieces of land, and he had
coconut trees on the land. He did not say anything more. What
I have said was all he said at the arbitration. Nana Budu, on the
other hand, said that Mr. Caesar had only one piece of land, with
a village thereon. He denied that Mr. Caesar owned three pieces
of land. Nana Budu did not say anything more, except admitting
only one of the claims made by Mr. Caesar, as I have said. On
Wednesday, the 23rd November, 1947, we went and inspected the
sites. After we had inspected the land we came to Senkyi to the
house of one Mr. Asare. We settled the dispute by saying
(1) That Mr. Caesar should have the first plot of land, as Nana
Budu admitted that, that belongs to him, but
(2) That as Mr. Caesar could not point any Ntome trees as he
alleged, or any other sign on the other two pieces of land, Nana
Budu should have those.”
Those accounts show, in my opinion, that there was no hearing of both sides
on the merits in a judicial manner. No evidence or statement was taken as to
how Mr. Caesar got title to the lands, and no evidence or statement was taken
from Nana Budu as to the grounds upon which he conceded one plot to Mr.
Caesar and opposed his claim to the two plots. What appears to have happened
was that the arbitrators wanted some preliminary idea of the nature of the lands
in dispute before inspecting them and before hearing the case on the merits; but
after the inspection of the land there was no hearing on the merits. I have found
that the alleged decision of the arbitrators was never given; but if it had been, it
would have been an arbitrary decision based upon no evidence at all. Therefore,
even if there had been submission to arbitration, the proceedings thereat are
shown by the plaintiff’s own witnesses to have been null and void ab initio.
Next, I shall deal with the submission that the defendants are estopped by
reason of their conduct in standing by, and allowing the plaintiff to declare the
land to the Local council as stool land under section 73 of the Local Government
Ordinance without protest.
In the first place, the plaintiff never produced a title of evidence that he
has ever been required (under section 73 of the Local Government Ordinance)
by the Local Council of the area where the land is situate to declare his stool
lands. Nor is there an iota of evidence that he has in fact declared the lands in
dispute as his stool land under section 73. the court can act only evidence, not
conjecture.
[421] Again, section 73 of the Ordinance makes the Local Council the statu-
tory manager of all stool land situate within the area of its authority; conse-
7
quently, the Local Council is made the statutory agent of a stool owning land
within its area. In order that the Local Council, as such agent, may know the
lands of the stools which are within its area and of which it is statutory care-
taker, the Local Council is given power under section 73 to require stools within
its area to declare their interest in land. An individual, therefore, need not take
notice of any declaration which any stool may make, and no question of estoppel
can arise to affect his title to his land by reason only of his failure to object to
a declaration which a stool makes under section 73 and affecting land in which
he claims an interest.
A Local Council, by agreement with an individual (such as the agreement
Nana Kwafo Akoto said he was inducing Mr. Ocansey to enter into with the Mid
Volta Local Council) may undertake for a consideration the collection of rents,
tolls or tribute from land in private ownership; but there is no statutory power
in a Local Council to assume the management and control of private lands. The
submission of Counsel on the point is therefore misconceived.
The further submission of Counsel is that by failing to make declaration
of ownership of the land as required in the resolution of the Akwamu State
Council, passed at their meeting on the 20th April, 1951, the defendants are
estopped from now asserting their title to the various portions of the land. This
submission is also misconceived, for the resolution has no legal force. A State
Council is, generally speaking, not a legislative body. Resolutions passed by
it do not enjoy the force of law, except where the statute for the time being
governing State Councils, gives any particular resolution the forces of law. In
such a case the statute lays down the conditions on which the resolution can be
law.
The statute in force in 1951 governing State Councils was the Native Au-
thority (Colony) Ordinance. Section 30(2) of that Ordinance provided that a
declaration of customary law made by a State Council could have legal effect
only if the Governor in Council directed that it should come into force. Sec-
tion 31(2) made similar provision in respect of resolutions of the State Council,
which modified the existing customary laws. No order made by the Governor
in Council has been produced directing the enforcement of the resolution of the
20th April, 1951, therefore non-compliance with any of its terms cannot affect
the title of an owner of a portion of the Akwamu lands.
[422] Again, there is no evidence that that resolution was ever brought to
the notice of the public and of the defendants; so that, even if the resolution
had had the force of law, the public could not know of it or avail themselves of
the opportunity to declare their ownership in lands affected by it.
I pass on now to the issue whether or not the land the subject matter of the
suit is part of the plaintiff’s stool lands. Judging from the pleadings, this issue
as it framed is not an issue joined between the parties. No one denies that the
land is within the geographical limits of the plaintiff’s stool – the Benkumhene
stool. In fact, the defendants rely upon the plaintiff’s ownership of the land as
their root of title; consequently, the time spent in leading exhaustive evidence
of that fact was time wasted. What was put in issue was whether the land in
dispute between the plaintiff and each of the three sets of defendants (or any
8
portion of it) is an unalienated portion of the stool land of the plaintiff.
The plaintiff admitted that portions of the land which he claims, edged green
on the plan Exhibit “A”, belong to other people. In such a case, the onus is upon
him to prove to the satisfaction of the Court the exact areas, which had been
alienated, and the exact area which still belongs to his stool. In fact, hardly
any evidence was tendered on behalf of the plaintiff on this crucial issue in the
case, so that, even if the defendants had led no evidence of their title, the court
would not be in a position to give judgment for the plaintiff for declaration of
title and possession in respect of an identifiable portion of the land, as land still
in the ownership of the plaintiff.
Both the plaintiff and his Paramount Chief, Nana Kwafo Akoto (P.W.14),
admitted that Caesar purchased a portion of the Atimpoku lands many years
ago. They could have known this fact only as part of the tradition of their stools.
That tradition is an admission by the two stools that Caesar acquired good title
to a portion of the Akwamu Atimpoku lands. Who it was that conveyed good
title to Caesar, and what was the extent of the area which was so lawfully
alienated to Caesar and over which he has good title, their tradition did not
relate. The only way in which the plaintiff attempted to challenge Caesar’s title
was to allege that none of the people from whom Caesar alleged he got the
good title was an Atimpoku chief, or an Akwamu Chief. In addition to that the
plaintiff led some sort of evidence that most of the areas claimed by Caesar had
been occupied by his tenants, and that what remains of it had been alienated
by Caesar to one Otinkorang.
[423] It is true that on the plan the stool has had some areas (marked 1 to
5) shown as land belonging to other people, but at the trial the plaintiff led no
evidence to substantiate these allegations. The indication of those areas on the
plan, therefore, has no evidential value; it is nothing more than fact pleaded,
but remaining to be proved.
Oral evidence of custom was led on behalf of the plaintiff as to the tenure
of Akwamu Stool lands; that oral evidence was supplemented by the resolution
of the Akwamu State Council (Exhibit “G”) to which I have already referred;
also by the deed conveyance (Exhibit “2″) of P.W. 17, Ofori Tawiah. From
that evidence of the custom of Akwamu, I am satisfied that the customary law
relating to tenure of stool lands in Akwamu is exactly the same as that of all
other stool lands in Ghana.
It was submitted that if a purchaser of the freehold title in a portion of
Akwamu stool land alienates the land without the stool’s joining in it, the
conveyance would be void. This submission is contrary to the evidence of custom
led on behalf of the plaintiff, and contrary to natural justice and good conscience.
That evidence of custom is that when a stool sells land, the Guaha is a custom is
performed_a sheep is slaughtered; the vendor then invokes “the gods”, and he
declares to them that, from that moment, he has completely divested himself of
all his title to the land, and that it has become vested in the purchaser. Cutting
of Guaha is a custom which signifies complete severance of the land sold from
the vendor, as a leaf or branch of a tree is completely cut off from the tree of
which it was a part. After such an alienation by the stool, its concurrence in the
9
re-sale of the land (of which it has completely divested itself) is not essential to
a valid alienation to a third party by the purchaser from the stool.
As P.W.19 (Okyeame Kofi Kwafo, the Linguist to the Omanhene) puts it, a
third party who buys land from the purchaser from the stool may, for his own
protection and as a further assurance of the title of his vendor, get the Chief
and his elders of the place where the land is situate to witness the sale to him.
In my opinion, that is the best that can be said; the failure to get such chief
and his elders to concur in, or to witness, the conveyance to a third party by
a purchaser from the stool does not-affect the validity of the title conveyed to
the thirty party.
The plaintiff pointed out the area marked “5″ on the plan as the only land
owned by Caesar, and he alleged that the Caesars have disposed of that land
to one Otinkorang. As already pointed out, [424] there is no evidence that, in
relating the tradition of his stool to him, anyone ever pointed out to the plaintiff
the extent of the land lawfully alienated to the Caesars. All he appears to have
been told is that Caesar owned a portion of his stool land; his evidence that
the area “5″ is all the land the Caesars own in Atimpoku is, therefore, a mere
conjecture.
Again, the allegation that the Caesar family had alienated any land they
owned on Atimpoku land to Otinkorang was not proved either; Otinkorang was
not called, nor was any witness to the alleged transaction called to give evidence
of it. The plaintiff sought too tender a Deed of Conveyance date the 31 May,
1947, alleged to have been made between the late G. T. Caesar and the said M.
B. Otinkorang. The document was not produced from proper custody, nor was
its execution proved. Moreover, the 2nd defendant (a nephew of the late G. T.
Caesar) through whom it was sought to tender that document and who is very
familiar with the signature of his uncle, deposed that the signature of “G. T.
Caesar” appearing on that document was not the signature of his late uncle of
the name. He said, further, that the principal members of the Caesar family,
whose consent and concurrence in dealing with the family land was requisite
and necessary according to customary law, had never give their consent to the
alienation of any portion of the family land by the late G. T. Caesar, or by any
other person. In these circumstances that document could not be admitted. It
was therefore marked Rejected “99″
The only admissible evidence left on the record regarding the alleged sale
of land by G. T. Caesar to Otinkorang is that elicited from the 2nd defendant
in cross-examination. That evidence was that the late G. T. Caesar made an
abortive attempt to sell a small portion of the Caesar family land at Atimpoku
to Otinkorang. It follows from that evidence that if the portion marked “5″ on
the plan is the area G. T. Caesar unsuccessfully attempted to sell, then that
area is only a small portion and not the whole of the Caesar family lands in
Atimpoku.
Again, Emmanuel M. Akoto (P.W.1) and Nana Kwafo Akoto (P.W.14), both
said that part of Nana Budu’s stool lands was lawfully sold to Ocansey (4th
defendant) under a decree of the Tribunal of the Omanhene of Akwamu, a
tribunal of competent jurisdiction. The plaintiff Nana Budu must know what
10
portion of his stool land was lawfully alienated to Ocansey. He know the area
of land over which he made Awumu Dzei (P.W.6) his caretaker, which area
Ocansey later claimed as by virtue of his said purchase, and the [425] tolls
from which, collected by Dzei, Nana Budu had to refund to Ocansey. Nana
Budu did not point out that land to the Surveyor to be shown on the plan nor
did he identify it to the Court in his oral evidence.
There is also the evidence of Togbor Glover, (P.W.7) that the plaintiff’s
predecessor had alienated a portion of his stool land to his family, though the
extent of that land was never shown.
As already stated, a plaintiff who seeks declaration of title to an area of land
must identify to the Court the particular area of land in respect of which the
declaration should be made in his favour. Where he claims damages for trespass,
and/or injunction as in this case he must satisfy the Court of the exact area
of land in his possession, which the trespassers have invaded, in order that a
judgment given in his favour can be effectively enforced. Consequently, where
a plaintiff claims an area, and the evidence shows that he does not own or was
not in possession of the whole of that area he claims, and he is unable to show
mush of that land he owns, or of how much he is in possession, no judgment
can be given in his favour.
Thus although the whole of the area edged green, and covering two square
miles, is admittedly within the territorial limits of the plaintiff’s stool lands, yet
upon the clear evidence of lawful alienation of portions of that area, and in the
absence of immediate possession, none of the reliefs he claims can be granted.
I now turn to the evidence led by the plaintiff in an attempt to prove his
exercise of rights of ownership over the land. Of all the host of witnesses whom
he called on this issue, the only truthful person I find among them is Awuku Dzei
(P.W.6). His evidence satisfies me that some time ago (probably in 1943, judging
from the evidence of the 3rd defendant, Madam Nyako) the latter, and her uncle
(the late Tea Solo), found the witness on the land, and they drove him away,
this was done with the full knowledge of the plaintiff. The evidence of Awuku
Dzei further satisfies me that at one time he was the plaintiff’s caretaker of
the land now claimant by Ocansey (4th defendant), and collected both riverside
then took Ocansey came and asserted title to that area of land; the witness
then took Ocansey to the plaintiff, and the plaintiff refunded to Ocansey all
tolls which the witness Awuku Dzesi had collected and paid to the plaintiff over
a certain period of time. From that day on, and up to the time that the Local
Council took over the collection of the tolls, he (Awuku Dzei) [426] was the
caretaker of the said lands for Ocansey. The conduct of the plaintiff in paying
to the 4th defendant, Ocansey, all tolls which Awuku Dzei had collected and
paid to him, is an admission by the plaintiff that as from a certain date, he had
no further right, title and interest in the said land, and that he had ceased to
be possession and occupation thereof.
The evidence led by some of the witnesses for the plaintiff on the question
of his exercise of rights of ownership over the lands can only be described as
ridiculous. By customary law, a subject of a stool is entitled, either by express
or implied grant from the stool, to occupy any vacant portion of the stool land;
11
the occupant of such portion of the land becomes the owner of the possessory
title in title in it: the land descends (upon his death intestate) to his family.
A subject who so occupies stool land is not liable to pay any tolls or tribute
of any kind to the stool; all that is due from him to the stool are the usual
customary services (Ohimen v. Adjei (2 W.A.L.R. 275); Thomson v. Mensah
(Court of Appeal, November, 1957). This right of the subject is inherit. It is
based upon the well-known proverb which says, “In the fight to secure the land
and save the stool no person’s ancestor carried two swords, each carried one”.
In other words, the ancestors of all citizens (including those of the occupant of
the stool) made equal sacrifices to win the land, and to preserve the stool. In
spite of this well established principle of the customary law, this Court is asked
to believe subjects of the Akwamu stool , and even subjects of the Atimpoku
stool , when they say that for occupying Atimpoku stool lands they had to give
to give annual tribute of 4/-, and farm products, to the stool. One of them said
that Atimpoku stool lands, which his uncle an Atimpoku stool subject occupied
during his lifetime, did not belong to the uncle, and so when he succeeded to
his uncle he had to apply to Nana Budu for land to farm and to fell palm trees
on; he said he paid tribute in cash and kind for his occupation. I cannot accept
that evidence.
Having formed that opinion of the witnesses called by the plaintiff on the
questions of possession, occupation and exercise of acts ownership of lands in
dispute, I must hold that the plaintiff failed completely to prove his possession
or occupation of, or the exercise by or his behalf of any acts of ownership of, the
land in dispute, or any portion of it. This takes me to the case of the defendants.
The case of the first two defendants_the Caesar family_is that the three
pieces of land they claim were lawfully acquired and occupied by their grand-
father(the late Israel Henry Caesar, who died in 1990) and that the said lands
have been occupied throughout by [427] members of the family since about
1880. The 2nd defendant, who is the present head of the family, gave the tra-
dition as told him by his father as to the acquisition of all the three parcels
of land they claim. The tradition he related is supported by two documents;
one is an ancient document dated the 29th April, 1893, signed by I. H. Caesar,
headed “Testamentary Declaration” (Exhibit “5″ in the case); the other was a
Photostat copy of another document, an Indenture of Conveyance dated the 3rd
March, 1893 (Exhibit “10″ in the case).
It was submitted on behalf of the plaintiff that Kwao Kwadjo Kwama Srebu
and the others who are alleged to have been vendors of the land of the late
I. H. Caesar, had never been occupants of the Atimpoku Stool , and therefore
any sales they may have purported to make were null and void. It was further
submitted that even if those alleged vendors had acquired good title to the land
by purchase from the stools of Atimpoku and of the Omanhene of Akwamu, the
sales which they made to the late Caesar would nevertheless be null and void,
since no Akwamu Chief is shown to have witnessed the said sales.
I fail to appreciate the logic of those submissions, for the following reasons:
(1) Both the plaintiff (the Chief of Atimpoku) and Nana Kwafo Akoto(P.W.14,the
12
Omanhene) say that they do not know the person or persons who sold land
at Atimpoku to the late Caesar got good title , i.e. the sale to him was
valid;
(2) in law , customary or otherwise, a purchaser of the freehold interest in land
is entitled to alienate the land he purchases without the necessary of his
own vendor concurring in or even witnessing the sale, and such sale is valid.
Now the only evidence before the court as to who were the vendors to the
late Caesar is the evidence given on behalf of the Caesar family. I am bound to
accept that evidence, and since the plaintiff admits that there was a valid sale
of land to the late Caesar, I must hold that he said vendor or vendors had good
title which he or they conveyed. The plaintiff led no evidence to prove the extent
of the land validly sold to Caesar, and his demarcation of the area marked “5″
on the plan (Exhibit “A”) was arbitrary and conjectural. The Court must look,
therefore, to the whole of the evidence to ascertain the parcel or parcels reputed
to have been in the possession [428] and occupation of the Caesar family, in
order to determine what land or lands were sold to the late I. H. Caesar.
On that subject there is the evidence of the 2nd defendant (who is over 50
years of age) that ever since he was a small boy he has known his family to be
in possession and occupation of all three pieces of land which his family claims,
exercising full acts of ownership thereon. There is also the evidence of the blind
old man P.W.2 (Daniel Tei) who struck me as an honest witness of excellent
demeanour. His evidence is that since 1894, and up to about 12 years or so ago
when he became blind, he has known the Caesar family to be in possession and
occupation of the three pots of land. His own land, which he inherited from his
father forms the northern boundary of Caesar’s claims Nos. 1 and 2 together.
He has personally taken part in the palm-oil industry which the Caesar carried
on the land which is their claim No. 3.
There is the evidence of tei Quornoo (P.W.1) that this land, over which he
litigated with the Asabu Stool (see the judgment in that case admitted in his
case as Exhibit “5″), forms the boundary on the north of the land which is
Caesar’s 1st claim. That fact is also borne out by his title deeds, dated 1882
(Exhibit “11″ in this case , and the document which formed the basis of his
defence in the case in which Exhibit “6″ is the judgment). There is also the
evidence given by this witness as t the ownership possession and occupation by
the Caesar’s 3rd claim, forming a boundary on the south with land owned by
him, a portion of which he sold to Ofori Tawiah (P.W.17). Here again , this
witness’s evidence is confirmed by his document Exhibit “7″; and it also finds
some support in Ofori Tawiah’s document (Exhibit “2″), the execution of which
was witness by Nana Badu the plaintiff.
Learn Counsel for the plaintiff submitted that although in the body of the
deed (Exhibit “2″) the land conveyed to Ofori Tawiah is shown as forming a
boundary on the north with land belonging to Caesar, yet since on the plan the
land to the north is described as “land in dispute between G. T. Caesar and
Nana Kofi Badu” it must be presume that, in joining to execute that document,
13
Nana Badus attention was centered on the description on the site plan attached
to the deed, and not on that in the body of the deed. It might well be, as
Counsel submitted, that Nana Badu accepted the description on the plan as
stating the correct position of the land on the north at that date. If this is so, it
means that Nana Badu was admitting in 1949 ( the date of the deed) that the
ownership of the land forming the northern boundary of the land conveyed by
that deed was land which [429] in that year was in dispute between him and
G. T. Caesar. That admission contradicts the plaintiff’s case that his dispute
with G.T. Caesar over that land was finally settled at an arbitration in 1947,
and that he was declared owner of that land by the award of that arbitration.
The plaintiff cannot blow hot and cold at the same time.
Again, it is the case of the plaintiff that the existence of Anya (otherwise
known as Buna or Ntome) trees on the boundaries of a piece of land is conclusive
evidence that the land along whose boundaries they exist is land which had been
the subject matter of an absolute sale by the stool. Looking at the plan Exhibit
“A”, Anya trees are seen along all the boundaries of the land which is Caesar’s
1st claim and along nearly the whole of the boundaries of the land marked
Caesar’s 3rd claim. The surveyor said that all the things he has indicated
on the plan are things he saw with his own eyes; that evidence of his was not
challenged. I accept it. It follows that those two pieces of land (Caesar’s “1″ and
“3″) are lands which have been the subject of absolute alienation, by sale and
conveyance by the stool. The purchasers of such land can therefore themselves
alienate them. Upon the evidence before the court the people who could be
the purchasers of such lands are the Caesars. On their claim “2″ also, the
evidence of the Caesars that they planted the Orange and Mango trees on the
north-eastern corner has not been contradicted.
I accept the evidence led by the Caesar family, and I hold that they are
owners by right of purchase of each of the three pieces of land they claim in this
suit.
The case of the 3rd defendant, and her mother the co-defendant, is that the
land they claim was purchased by Paul Petty, father of the co-defendant, from
the same Boso Kwadjo from whom old Caesar purchased a portion of his land.
The plaintiff says he has no knowledge of this, and that Boso Kwadjo had
no authority to alienate Atimpoku stool lands. The question is, If Boso Kwadjo
could make valid alienation of Atimpoku stool land to Caesar, why could he not
alienate Paul Petty or to anyone else?
In view of the evidence of the significance of Anya trees from the existence
of such trees( or their stumps_one described on the plan as “big anya stump”)
on the boundaries of the land which these defendants claim, I must come to the
conclusion that that land is land which the Atimpoku stool must have validly
alienated, I accept the evidence of occupation given by the co-defendant that
her father [430] purchased that land. I also accept her evidence, and that of
her daughter (the 3rd defendant) as to their family’s occupation and possession
of the land all these years. I believed that the fruit trees on that land were
planted by members of their family, and not by any of the witnesses for the
plaintiff. I also accept the evidence of P.W.6 ( Awuku Dzei ) that when he was
14
put on that land by the plaintiff, and the 3rd defendant and her uncle Tei Solor
challenged his right to be on it, took Solor to the plaintiff, eventually he (Dzei)
left the land.
I also note the admission made on behalf of the plaintiff through cross-
examination that Clement Sackey, the only witness called by the 3rd defendant
and co-defendant, felled palm tree on the land in 1946, and also farmed a portion
of it upon licence granted to him by Tei Solor.
It was suggested by Counsel for the plaintiff that the plaintiff challenged
the occupation of Sackey and a letter of complaint to his European Manager
complaining of his trespass. There is no evidence that the plaintiff challenged
the right of Sackey to work on the land. As to the content of the letters which
sackey admits Nana Budu wrote to Sackey’s employer, the only evidence of it
is what counsel for the plaintiff elicited by cross-examination from the witness,
namely, Nana budu reported Sackey to his employer for using the letter’s time
to do hies own private work, i.e. supervising his palm wine tapping, and making
farms. I cannot see how it could be other wise. If Sackey had gone on the land
upon instructions of his European Manager of the road works, the suggestion
that the letter written by Nana Budu was in the protest of Sackey’s trespass on
his land would be reasonable; but not when the land, as the evidence shows, for
his private purposes as a licensee of Tei Solor.
As started in the introductory part of the judgment, the only person Nana
Budu sued in this case is the 1st defendant_all the other defendant were joined
upon their own application. If Nana Budu bid not concede that the Pettey
family (i.e. Tei Solo) own the land they now claim, why did he not sue Tei Solo
when the latter in 1943 drove Nana Budu’s agent Awuku Dzei from the land,
and in 1946 permitted Sackey to fell palm trees on the land, and to farm. The
only inference to be drawn from Nana Budu’s conduct is that he was well aware
of the Tei Solo’s family’s title to that land.
The 3rd defendant and her family have proved to my satisfaction that their
family are the owners of the land which they claim in this suits, and that they
have been in possession and occupation ever since it became their property.
[431] Finally, to the claim of 4th defendant Ocansey. His case is simple in
the extreme, and it was proved for him conclusively by the plaintiff himself,
his 1st witness (Emmanuel Akoto), his 6th witness (Awuku Dzei), and his 14th
witness (Nana Kwafo Akoto). His case is that he purchased the whole of the
right title and interest of Nana Budu in the land which he now claims, at a
sale at Public Auction conducted in execution of a decree of the Tribunal of
competent jurisdiction. P.W.1 said that the writ of fieri facias under which the
sale was conducted is Exhibit “3″. He admitted that the description on the
writ of attachment under which a sale takes place should be reproduced on the
Certificate of Purchase which is issued after the sale. He also admitted that after
he had issued the Certificate of Purchase (Exhibit “4″) the judgment-creditor,
Quornoo, who had given the description of the land to be attached in execution,
submitted to his Tribunal an affidavit (Exhibit “5″), pointing out that the land
sold had been wrongly described on the Certificate of Purchase.
The 4th defendant said under cross-examination that at the auction-sale
15
the judgment-creditor took him round, and showed him all the boundaries of
the land sold. He said in his evidence-in-chief that the surveyor, and which is
delineated on the plan Exhibit “A”, and thereon edged yellow.
It was submitted by Counsel for the plaintiff that the 4th defendant is bound
by the description on the Certificate of Purchase. That submission may be
correct in normal circumstances, but be that as it may, the description of the
land as shown on the Certificate of Purchase can be material only if there is a
dispute as to the physical identity of the land attached and sold. For example,
if the plaintiff has pointed out another piece of land as the one attached and
sold, then and only then could a dispute arise as to description, and the Court
could be concerned to enquire which of the two different pieces of land answered
the description of the land attached and sold.
In this case the plaintiff has not pointed out any land as that sold. There is
one piece of land (and one piece of land only) proved to the Court as the land
attached and sold, and that is the land delineated on the plan Exhibit “A” and
thereon edged yellow. There is the further evidence of Awuku Dzei, already
referred to, that the plaintiff has admitted the 4th defendant’s ownership of
that area of land. What is there for the plaintiff to argue about? Is there any
wonder that the plaintiff never sued the 4th defendant? The 4th defendant has
conclusively proved his case.
[432] Among other reliefs, the 1st and 2nd defendant (i.e. the Caesars) have
counterclaimed for damages for trespass to their land, so has the 4th defendant.
As regards the claim of the Caesar family for trespass, we have to go back to
1946-1947 when G. T. Caesar instituted an action against the plaintiff. P. W. 4
deposed that the reason which the late Caesar gave in 1947 for suing Nana Budu
was that Nana Budu had trespassed on his land. That witness also that, when
he and the other people who purported to hold an arbitration on the dispute
inspected the three areas of land, they saw that palm trees had been felled on
the claim No. 2 land, and cassava farms made on the claim No.3 land. He said
further that Nana Budu admitted that it was he who had caused the palm tress
to be felled, and the farms to be made.
As I have found that these two plots of land were in the possession and
occupation of the Caesar family long before the year 1946, and that they have
always continued to be so, it follows that Nana Budu’s entry upon the two pieces
of land was trespass.
As regards the claim of the 4th defendant (Ocansey) for trespass the evidence
satisfied me that since the time that Nana Budu paid him (Ocansey) the tolls
which Awuku Dzei had collect on his Nana Budu’s behalf from Ocansey’s land,
Nana Budu has never trespassed upon that land again. As Ocansey himself said,
the only reason why he applied and was joined as a defendant in this suit is that
the area of land, measuring 2 square miles, which Nana Budu claims includes his
land. Assertion of title to land, without entry upon the land, does not constitute
trespass, and Ocansey’s claim for damages for trespass must therefore fail.
In the result, the claim of the plaintiff against each of the defendants and
the co-defendant is dismissed, and judgment entered on that claim for each
defendant
16
On the counterclaim of the 1st and 2nd defendant there will be judgment
for the 1st and 2nd defendants (i.e. the Caesar family) for:_
(1) declaration of their title to each of the three pieces of land described in their
counter-claim and delineated on the plan Exhibit “A”, and thereon edged
brown;
(2) an Order for recovery of possession of each of the said three piece of land;
(3) £100 damages for trespass to the 2nd and 3rd pieces of the said land, and
[433]
(4) an injunction restraining the plaintiff, his agents, servants or any person
claiming through him, from entering upon the said lands, or in anyway
whatsoever interfering with the Caesar family in their ownership, possession
and occupation of the said three pieces of land, or any of them.
On the counter-claim of the 3rd defendant and of the co-defendant (i.e the
Paul Pettey family), there will be judgment for the 3rd defendant and the co-
defendant for declaration of their title to the land as claimed by them in their
counter-claim, and shown and delineated on the plan Exhibit “A”, and thereon
edged purple.
On the counter-claim of the 4th defendant (Ocansey) there will be judgment
for the 4th defendant for:
(1) declaration of his title to the land described in his counter-claim, and shown
and delineated on the plan Exhibit “A”, and thereon edged in yellow, and
(2) injunction restraining the plaintiff (Nana Budu), his agents servants and
licensees, from entering upon the 4th defendant’s said land, or in any manner
whatsoever interfering with the 4th defendant in his ownership, possession
and occupation of the said land.
The defendants and the co-defendant will have their costs fixed as follows:_
For the 1st and 2nd defendant; Out-of-pockets and attendance, £146 5/-.
For the 3rd defendant and the co-defendant: Out-of-pockets, and atten-
dance of themselves and their witnesses, £87 5/-.
For Counsel for the 1st three defendants and the co-defendant, 250 guineas.
For the 4th defendant: Out-of-pockets and attendance of himself and wit-
ness, £81 12/-.
For Counsel for the 4th defendant 175 guineas.
(Editorial Note:2 As delivered, the above judgment contained certain ob-
servations on the conduct of counsel for the plaintiff, which observations it has
not been thought necessary to reproduce for purpose of this report. On appeal,
the appellate court allowed the appeal, though not on the merits, and ordered
a re-trial.)
_________________________________2
This editorial note is reported in the GLR original
17
