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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).

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.''

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 settlement 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 Bamforo, 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 submitted 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 ``arbitration 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 certain 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 proceedings 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 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 submissions 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 after 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 customary 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 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 illustrates 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.

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 arbitration 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:

``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 statutory manager of all stool land situate within the area of its authority; consequently, 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 caretaker, 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 Authority (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. Section 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 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 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 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; 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 grandfather(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 tradition 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 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, 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 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 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

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 attendance 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 witness, £81 12/-.

For Counsel for the 4th defendant 175 guineas.

(Editorial Note:2 As delivered, the above judgment contained certain observations 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.)



Footnotes

... (unreported).1
Ed. -- It appears that this case was later published as Thompson v. Mensah, 3 W.A.L.R. 240 (1957).
... Note:2
This editorial note is reported in the GLR original




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Josh DuBois 2006-04-15