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Allotey v. Abrahams
Tamakloe v. Abrahams
(1957) 3 WALR 280.
High Court, Eastern Division, Land Court (Ollennu, J.)
10 December, 1957

[282]

Cases referred to:

(1) Quarm v. Yankah and Another (1930) 1 W.A.C.A. 80.
(2) Agbloe and Others v. Sappor (1947) 12 W.A.C.A. 187.
(3) Abude v. Onano (1946) 12 W.A.C.A. 102.

ACTIONS for recovery of possession of land, declarations of title thereto and damages for trespass. The actions were consolidated.

OLLENNU J. The plaintiff in the first of these two consolidated suits claims a declaration of his title to an area of land specifically described in his write of summons; he also claims damages for trespass to the land [283] and an injunction. He relies for his title upon a deed of conveyance dated April 30, 1946, executed in his favour by Nii Tetteh Kpeshie II, Mantse of Sempe, acting with the consent and concurrence of principal headmen, Asafoatsemei, elders, linguists and councilors. The deed is registered as No. 550/1946 in the deeds Registry of Ghana. He pleaded that the defendant had entered upon the land, wrongfully claiming it as his property.

The defence, as contained in an amended statement of defence filed on behalf of the defendant to this first suit is:

(1)
a denial that the Sempe Mantse and his elders sold land to the plaintiff which includes the land in dispute,
(2)
that any purported sale of Sempe Stool Land by the Sempe Mantse to the plaintiff was without the knowledge and consent of the principal elders of the stool including the defendant, who claims to be Stool Father of Sempe, and is therefore null and void,
(3)
that by reason of a judgment of the Ga Native Court ``B'' delivered on September 11, 1948, restraining the Sempe Mantse from alienating Sempe Stool land without the consent of certain persons, the document relied upon by the plaintiff is null and void and of no effect, and
(4)
a denial of the allegation that the defendant has entered upon the said land or claims ownership of it.

The claims made by the plaintiff in the second suit are exactly the same as those made by the plaintiff in the first case, but in respect of another piece of land, which land is also specifically described in his writ of summons. The plaintiff in the second case depends for his title upon two deeds of conveyance dated October 16, 1946, and November 29, 1946, respectively, registered as Nos. 803/1946 and 932/1946 in the Deeds Registry of Ghana.

The defence to the second suit is exactly the same as in the first suit.

In proof of his case the first plaintiff tendered the deed of conveyance dated April 30, 1946, and led oral evidence as to its execution; he also led evidence that upon the execution of the deed he was laced in possession of the land so conveyed to him, and except for portions he has alienated to the plaintiff in the second suit, has remained and was in such possession at the date when the cause of action arose by the defendant's invasion of his possession, which he did by entering upon and placing sand and stones thereon.

Similarly, the plaintiff in the second suit led evidence of the execution of the deeds of conveyance of each of them up to date when the defendant invaded the said possession by entering and commencing building operations thereon.

[284] Although the defendant averred in the statement of defence filed on his behalf in each of the consolidated suits that he had never entered upon the portions of land in dispute and never claimed ownership of any of them yet, in his evidence before the court, the defendant admitted that he entered upon the lands, placed sand and stones on one portion and caused building operations to be started on another portion. The defendant said he did so upon a claim of right, based on the grounds: (1) that he paid moneys to have the Sempe Stool released from attachment and thereby became individual owner of both the stool and all its lands, and (2) that he is Sempe Stool Father and as such the caretaker of Sempe Stool land, and by virtue of that position he is entitled to enter upon any portion of Sempe Stool lands, which include the portions of land in dispute. In fairness to the defendant, it must be pointed out that those two points were among the principal defences which he raised in the original statements of defence filed by himself.

It is common ground between the parties that the pieces of land in dispute in these consolidated suits form a portion of Sempe Stool lands.

Even if it had been proved that the defendant paid debts of the stool to release the stool from attachment in execution of a decree of a court, he cannot by native custom become the owner of the stool land or of any stool property.

Although suggestions were made in cross-examination of witnesses for the plaintiffs that the stool Father, Stool Mother and Queen Mother of Sempe are, by custom of the Sempe Stool, the first three among the principal elders of Sempe, the suggestion was denied. J. A. Quay, the chief linguist of the Sempe Stool went further to say, under cross-examination, that in dealings with Sempe lands it is not the custom of the stool that women, whatever their status, should take part. that evidence elicited in cross-examination was not refuted; the defendant had every opportunity of refuting it but did not do so. He is bound by it. I accept it as a correct statement of Sempe custom.

As far as the position of a Dsasetse of Sempe is concerned, a question put by counsel of the defendant to the chief linguist, J. A. Quaye, and the answer to it, satisfied me that there is a dispute of over twenty years' standing as to whether or not the post of Dsasetse is a recognised office attached to the Sempe Stool. Learned counsel asked: ``Do you know ``that there has been a dispute in the Sempe Division since 1935 over the recognition of the office of a Dsasetse?'' The reply was ``yes, that is so.'' That question and answer rule out anybody who claims to be Dsasetse of Sempe as a necessary consenting and concurring party to any dealings with Sempe Stool lands by the Sempe Mantse.

Suggestions to the chief linguist, J. A. Quaye, and the linguist, Thomos Nii Ofoli, that the defendant and one Nanaku Omarduru II were respectively the Stool Father and Queen Mother of Sempe, were denied by the witnesses. The chief linguist, J. A. Quaye, gave the names of the holders of those two posts. The defendant and his second [285] witness, one Kwabena Mankata, on the contrary deposed that he, the defendant, was Stool Father and Nanaku Omaduru the Queen Mother of Sempe. The defendant of course sated that he had had nothing to do with the present Sempe Mantse since he was enstooled sometime in 1940 or thereabout, and has taken no part whatsoever in the administration of the affairs of the Division all these years;and further that it is the Mantse and the elders who sit with him in council who have been dealing with matters of administration of the Division including dealings with stool lands. I cannot accept the evidence of the defendant and his second witness, both of whom impressed me very badly, against that of the chief linguist, J. A. Quaye, and the linguist, Thomas Ofoli, each of whom I accept as thoroughly reliable and responsible witnesses.

The administration of the affairs of a stool or family will not by native custom be allowed to be paralysed to satisfy the selfish or private motives of individuals or minorities. Therefore, if the holder of a traditional office connected with the stool or in the family declines or fails for reasons best known to himself to exercise the duties of that office, those who by custom are entitled to elect or appoint persons to that office are entitled either to remove such holder entirely and appoint or elect another person to the post, or to appoint someone to act in that post. That applies equally to the occupant of the stool or the head of family himself. Thus, I find that even if the defendant had, at some time, been appointed Stool Father, of which there is no credible evidence, nevertheless, since upon his own showing he has refrained for such a long time from sitting with the Mantse in council, he cannot seriously be regarded as a person whose consent and concurrence in stool affairs, including dealings with stool land, is necessary.

It is not denied by the defendant that J. A. Quaye is linguist to the Sempe Stool. The defendant's second witness, Kwabena Mankata, went further and corroborated the evidenced on the part of the plaintiff that J. A. Quaye has been the chief linguist to the Sempe Stool since the enstoolment of the present Sempe Mantse.

The defendant's evidence is, that he and his brothers are the only persons in sempe who are entitled by custom to deal with Sempe Stool land. He contends that the Sempe Mantse and the principal elders of Sempe have no right to deal with stool lands and are not entitled even to be consulted in dealings with Sempe Stool lands. This proposition of native custom is so preposterous that it cannot bear examination. I reject it.

Upon the evidence before me I find that J. A. Quaye is the chief linguist of the Sempe Stool and was so in 1946; that W. S. Allotey, the present Mankralo of Sempe, held the same office in 1946; that Nii Moi Hammnond, Abose Allotey, Nii Akweifio, and the late A. B. Moi were some of the principal elders of the Sempe Stool in 1946; and that the late J. W.. Boye was the Stool Secretary of Sempe in 1946. I also find that [286] whatever office the defendant might have held in Sempe before the enstoolment of the present Sempe Mantse, he has not been Stool Father of Sempe since the enstoolment of the present Mantse, and has not been exercising any office as a principal elder of Sempe; consequently that his consent and concurrence in dealings with Sempe Stool land is unnecessary.

According to native custom it is only the occupant of the stool or the head of the family who is entitled, with the consent and concurrence of the principal elders of the stool or family, to alienate stool or family land. There can be no valid disposal of stool or family land without the participation of the occupant of the stool or the head of the family; but there can be a valid alienation of stool or family land if the alienation was made by the occupant of the stool or the head of the family with the consent and concurrence of some, but not necessarily all, of the principal elders of the stool or family. The occupant of the stool or the head of the family is an indispensable figure in dealing with stool or family land.

Therefore the law is that a deed of conveyance of stool or family land executed by the occupant of the stool or the head of the family and a linguist and/or other principal elders of the stool or family, purporting to be with the necessary consent, is valid until it is proved that such consent and concurrence were not in fact obtained. In other words, such a conveyance is voidable, not void, and can only be set aside at the instance of a stool or family if the principal members of the stool or family act timeously. See the case of Quarm v. Yankah and Another (1).

On the other hand, a deed of conveyance of stool or family land which on the face of it is executed only by the principal elders of the stool or family, no matter how large their numbers, is prima facie void ab initio, since on the face of it the indispensable person--the occupant of the stool or the head of the family--is not a party to it. See the case of Agblo and Others v. Sappor (2). In such a case, however, it is open to the principal elders to prove tat the occupant of the stool or the head of the family consented and concurred in the transaction and had authorised the deed to be executed in the form in which it appears.

The document dated April 30, 1946, relied upon by the plaintiff in the first case, contains the following recital: ``Between Nii Tetteh Kpeshi II, Sempe Mantse of Accra on behalf of the Stool of Sempe with the consent and concurrence of the principal Headmen, Asafoatsemei, Elders, Linguists and Councilors of the Stool of Sempe whose knowledge, consent and concurrence is requisite or necessary according to native customary law for the valid sale alienation or disposition of Sempe Stool lands and which knowledge consent and concurrence is evidenced by some of such persons subscribing their names or marks to these presents as witnesses.'' That document is executed by Nii Tetteh Kpeshie II, Mantse of Sempe, and bears the signatures or marks of J. A. Quaye, the Chief Linguist of Sempe, W. S. Allotey, Mankralo [287] of Sempe, Nii Moi Hammond, Abose Allotey, Nii Akweifio and A. B.. Moi, who, as I have found, were principal elders of the stool of Sempe in 1946. The recital in the document that it was executed with the knowledge, consent and concurrence of the principal elders of the Sempe Stool, but that it is only some of such elders and the linguist who signed and marked the document to evidence such knowledge, consent and concurrence of all the principal elders, has not been refuted. On the contrary, that recital is confirmed by the evidence of the linguist, Nii Ofoli, who deposed that although he, a linguist, and other elders were present at the execution, and consented and concurred in it, yet they did not sign the document.

A judgment delivered on September 11, 1948, by the Ga Native Court ``B,'' Division 1, in a suit entitled Muffat and Others v. Kpeshie Quaye, was tendered in evidence and relied upon by the defence. It contained an order: (1) prohibiting Nii Tetteh Kpeshie and J. A. Quaye from selling the plaintiff's stool land without the knowledge, consent and concurrence of the plaintiffs in the said case; (2) a perpetual injunction restraining Nii Tetteh Kpeshie and the said J. A. quaye from alienating Sempe Stool lands; and (3) for Nii Teteh Kpeshie to account to the said plaintiffs for proceeds of all Sempe Stool lands alienated by him and J. A. Quaye since his, Nii Tetteh Kpeshie's, enstoolment.

Counsel for the defendant in this suit contended that the plaintiff's deed of conveyance in the first suit is null and void because it was executed in contravention of the judgment aforementioned. There is no substance in that submission. First, the writ was instituted in 1947, as shown by its number, 67/47, a year after the execution of the deed, and the judgment was delivered on September 11, 1948, more than two years after the execution of the deed. The orders of ran injunction contained therein cannot therefore affect the plaintiff's deed. Secondly, the order for a perpetual injunction is ultra vires the Native Court and is therefore void ab initio; no contempt will be committed in ignoring it, and the validity of a document executed in violation is not necessarily void. Thirdly, the order that the occupant of the stool should account to subjects of the stool, although it is against every principle of native custom, and is also void for want of jurisdiction--see the case of Abude v. Onano (3)--pre-supposes that all alienations of stool lands made prior to the judgment were valid, and the moneys realised from such sales are lawful stool moneys for which the recipient is liable to account. The plaintiff's deed of conveyance executed on April 30, 1946, is a deed which effected one of those alienations; consequently the alienation made by it must, upon the said judgment, also be presumed to be valid.

I am satisfied both upon the law and the facts that the deed dated April 30, 1946, relied upon by the plaintiff, A. A. Allotey, is [JAD: Note: I cannot read the remainder of this paragraph, pp, 287, 3 WALR. Need to get another copy.]

[288]

A. A. Allotey carved the land in dispute in the second suit out of the land conveyed by the deed of April 30, 1946, to Benjamin Kpoku Tamaklose, conferred upon the latter, the plaintiff in the said suit, a good title in the said land.

The plaintiff put in evidence two judgments of this court, one delivered by van Lare J., as he then was, and another delivered by Quashie-Idun J. In each of those two cases one Charles Okoe Aryee was the plaintiff and the present defendant was the defendant. The land in dispute in each of those cases was a portion of Sempe Stool land conveyed to the said Charles Okoe Aryee by Nii Tetteh Kpeshie II acting with the consent of his Chief Linguist, the said J. A. Quaye, and other elders, as happened in the conveyance of A. A. Allotey, the plaintiff in the first of these consolidated case. The lands the subject-matters of those judgments are situate in the neighborhood of the land in disputed in these consolidated cases. Each of the two judgments was against the defendant Modua Abrahams for a declaration of title, damages for trespass and an injunction. The plaintiff also tendered in evidence an order made by van Lare J. on November 14, 1955, committing the defendant for breach of the order for injunction in the first of the said judgments.

The acts of the defendant which constituted the cause of action in the present suits were committed subsequent to the two judgments referred to as also to his commitment for contempt. Those acts, the defence put forward, and the attitude of the defendant during the proceedings in the present consolidated suits, manifest a determination by the defendant to molest all persons to whom the sempe Stool has made grants of Sempe Stool lands, no matter what the courts may decide. To allow the defendant to have his way is to encourage lawlessness in the country.

The nature of the trespass committed, taken together with the defendant's knowledge of two decisions of this court on similar conveyances of Sempe Stool land made by the Mantse and his elders, create a situation which makes it imperative that the trespass be visited with substantial damages.

There will be judgment for the plaintiff, A. A. Allotey: (a) a declaration of title to the land claimed in his write of summons, (b) £100 damages for trespass, and (c) an injunction restraining the defendant, his servants and agents, [289] from entering upon the said land or in any way whatsoever interfering with the plaintiff in his ownership, possession and occupation of the same. There will also be judgment for the plaint [JAD note: again, the corner is torn off here. Judgment is for plaintiffs. Need to find a copy where pp. 288 is intact.]

Judgments for the plaintiffs.
S. G. D.





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Josh DuBois 2005-01-03