It is admitted by the plaintiff's that Nii Abose Okai was a competent authority to convey Akumadjaye Stool land, and that consequently Exhibit ``1'' executed by him is a valid document. And, of course, it is admitted by the defendants too, that Nii Ayikai being the occupant of the said Akumadjaye Stool is a competent authority to alienate lands of the stool, and that, in consequence, Exhibit ``B'' and Exhibit ``C'', executed by him, are both valid documents.
Counsel for the plaintiff's submitted, however, that the land in dispute could not be the identical land which Nii Abose Okai had granted and conveyed to the late Henerike Cornelius Malm, because
Counsel submitted that in these circumstances the onus was upon the defendants to prove by positive evidence of occupation that the land in dispute was the identical land which the stool by the deed Exhibit ``1'' (which is prior in time to Exhibits ``B'' and ``C'') had granted to the defendants' predecessor in title.
Upon the assumption that the onus is upon the defendants, Counsel for the plaintiff submitted that the defendants has failed to discharge that onus, because the only evidence which they led of their occupation. Of the land was evidence of the existence of three mango trees on the land, the fruits of which they allege they have been harvesting. Counsel submitted that harvesting of the fruits of the mango trees on the land is not sufficient evidence to show that the land is in the possession of the defendants. In support of that submission, Counsel referred the Court to the opinion expressed by Jackson J. in his judgment of the 31st May, 1951, in the Kokomlemle consolidated case where he said:
``There is some evidence, but evidence of a very vague nature, as to locality, and to which I have referred before, which was the subject of an action in which the Native Tribunal held, and quite correctly, that Tettey Addy defended in his personal capacity alone, and had destroyed certain trees to the north of Ring Road, which the Native Tribunal adjudged had been Kotey's property. The situation of these trees had never been evidenced to me with any particularity, and as Mango and Cashew trees abound through the lands and have been propagated in the past rather by the acts of nature than by the industry of men, I do not think that such a casual act of possession (i.e. a habit of collecting fruits from particular trees) is very cogent evidence of the interest in land claimed by Kotey, i.e. a right to sell without leave or license of anyone.''
Quite property, Counsel urged this opinion of the learned Judge in the learned Judge in the hope that it might have persuasive force with this Court; he did not quote it; of course, as a binding authority. I must say, with great respect to the learned Judge in that case, that I am not at all persuaded by that opinion: firstly, because the evidence in the instant case does not warrant that opinion; and secondly, the opinion shows that the attention of the learned Judge could not have been directed to the customary law of this country relating to tenure of stool land, as will appear presently.
Now, even if the onus were firstly upon the defendants (which in my opinion it is not) to establish their defence against the plaintiffs' claim, and not upon the plaintiffs to show their case must succeed by reason of its own strength, it must be pointed out that the harvesting of the fruits of the mango trees is not the only evidence of possession tendered by the defendants. There is also the evidence of the pillars fixed by the late Malm to the four corners of the land, which evidence I accept. Three of these pillars remained in position up to a short time before the incidents which led to the institution of these suits. There is also the evidence, not seriously challenged, of the farming of the land by the late Malm, and by labourers for and on behalf of the 1st defendant. Finally, there is the evidence that the caretaker used to have the land kept clean of weeds. All of this evidence I accept.
The true position is that, although the documents Exhibit ``B'' and Exhibit ``C'' are valid documents, they can be effective to transfer title in the land to the plaintiffs if (and only if), at the dates of their execution, the lands which each purports to convey were vacant stool lands. If at the date of the execution of these deeds the lands were in the occupation of a subject of the stool, or of a stranger to whom the stool had already granted them, those documents would be incapable of conferring title in the lands upon the plaintiffs, the validity of their execution notwithstanding. In my opinion the onus is upon the plaintiff to satisfy the Court that the lands were vacant lands at the date when the stool purported to convey them by Exhibit ``B'' and Exhibit ``C''. they cannot succeed on their claim if they fail to discharge that onus, and, if they so fail their claim cannot succeed, even if the defendants are unable to prove that they themselves have ever been in possession of the lands.
I shall now examine the evidence led on behalf of the plaintiffs to see whether or not they discharged the onus upon them.
(His lordship examined the evidence accordingly, with special reference to the existence on the land of three fully grown mango trees, The learned Judge continued:--)
From the evidence led on behalf of the plaintiffs; portions of which I have quote above, I find the following facts; Although mango seeds may germinate by the act of nature, the trees cannot survive on the Accra plains, an develop to become fruit-bearing, without industry of man. They would perish at a very early age if they were not so preserved. They truth is that such trees generally sprout up in cultivated area, and are looked after by the owners of the farms in which they germinate. Therefore, the existence of trees like mango or cashew on land overgrown with weeds is prima facie evidence that the area where they are found is a farmstead, once under cultivation by the person who now harvests their fruits.
It follows that mango trees would be grown on land only by the man in possession of that land; and if a mango tree happens to grow on land it would be no one but the possessor of the land who would display the industry necessary to keep it alive. For an owner of land would not normally permit a stranger, with no interest in his lands, to come upon it year in year out, to cultivate a mango tree which had sprouted up on the land by the act of nature; nor, when the trees is grown up, would the owner of the land permit the stranger to harvest the fruits of that tree of economic importance.
In my opinion, therefore, harvesting the fruits of mango trees is very congent evidence of the interest which the man who so harvests the fruits has in the land on which they grow.
By customary law a stool cannot make a valid grant of any portion of its land on which there exist economic trees like mango and cashew. This is a well-established custom which is based upon another very sound customary law, namely, that any subject of a stool is entitled to occupy a vacant portion of the stool land, and to become the owner of the usufruct thereof. His occupation and possession may be by cultivating it in one form or another, by building on it, or using it in any other way in which an owner would use his land. A subject in such possession may alienate that possessory title of his, either to another subject or to a stranger; or he may lease it, so long as such alienation or lease carries with it the obligation to recognize the allodia ownership of the stool. By custom a stool cannot alienate its absolute title in such a portion of the stool land without reference to the subject or grantee in possession. The person in possession might have obtained the land by grant direct from the stool, or grant from a subject of the stool who had occupied the land when it was vacant. There is not doubt that both P.W.1 (Nii Ayikai II, the occupant of the stool) and P.W.3 (the Linguist of the stool) are well aware of the principle of the customary law that where there are economic trees (such as mango trees) on stool land, that is prima facie evidence of possession of the land by a subject or a grantee; and that the stool, by customary law, is not entitled to alienate that land without reference to the owner of those trees, who is deemed to be in possession of the land. Nii Ayikai, in fact, said that if he had been informed of the existence of the mango trees on the land he would not have granted that portion of the land to the plaintiffs.
In the case of the Abose Okai lands the need to observe this principle of the customary law is all the more imperative for two reasons: (1) because the Mantse knows that the former caretaker of the land (Nii Abose Okai) had validly alienated portions of the land, but unfortunately he (the Mantse) upon his own admission does not know the particular areas which Nii Abose Okai had so alienated; and (2) because, as the Linguist stated, mango and cashew trees are the only valuable trees on Abose Okai lands, and owners attach great importance to those trees, implying that there must be some one who asserts a right to the land on which such trees are.
I believe Nii Ayikai when he says that if the people whom he sent to demarcate land to the plaintiffs had told him on their return that there were grown-up mango trees on the land he would not have granted that land to the plaintiffs without first finding who the owner of those trees was. And I have no doubt that if he had had the opportunity to make enquiries about the ownership of those trees, he would have discovered that the land on which they grew was one of the portions of his stool land which former caretaker (Nii Abose Okai) had already alienated.
Again, I believe the evidence of the 1st defendant that her father (the late H. C. Malm) submitted the documents Exhibit ``1'' and Exhibit ``2'' to Nii Ayikai, and that the documents remained with the Mantse for about six months before she (the 1st defendant) and her father went and collected them. But I am satisfied also that they did not go with the Mantse or any representative of his to point out the particular land to him. Consequently, although I believe that Nii Ayikai was siesed of the knowledge that H. C. Malm owned a portion of the Abose Okai lands, I believe also that Nii Ayikai was not aware of the identity of the said land.
The evidence of the Surveyor(P.W.2) and that of the Linguist (P.W.3) show that they knew, or ought to have known, that the existence of the mango trees on the land is very positive and cogent prima facie evidence that someone was in possession and occupation of the land. Had they made enquiries they would have discovered who that person was, and what the nature of his interest in the land was, and this unfortunate litigation would have been avoided. The reason which the surveyor gave for his failure to make investigations was that it was not his duty to make such enquiry, or even to ascertain who owned the lands adjoining the one he was demarcating. This, in my opinion, is very strange, because one on the requirements of customary law relating to a grant of land is that the grant should be given wide publicity in the locality where the land to be granted is situate. The owners of the adjoining land have to be invited to be present at the demarcation, for agreement on the boundaries, so as to avert the possibility of ``granting'' land already belonging to another person, or trespass upon adjoining lands in the ownership of another.
The reason which the Linguist gave for not trying to find the owner of the mango trees was that they were not sent to look for vacant lands to demarcate. He was requested simply to accompany the surveyor, who knew the point to which land had been granted and who would point out a place to be demarcated. The inference to be drawn form the evidence of these two witnesses--the surveyor and the linguist--is that their instructions were simply to act upon a plan showing areas which Nii Ayikai had granted and areas, he had not yet granted, and to demarcate a portion of the latter to the plaintiffs. But, as was evidenced by the Mantse (Nii Ayikai), the plan in the possession of stool showed only those areas which he (Nii Ayikai) had granted--not those already granted by Nii Abose Okai. The stool, therefore, acted recklessly when, in spite of the existence of the three grown-up mango trees on the land (which was very positive and cogent evidence of the possession and occupation of the land by somebody), and in spite of the knowledge that Nii Abose Okai had granted other areas, it granted the land in dispute to the plaintiffs. The plaintiffs, with full knowledge of the existence of the mango trees, took a risk in accepting the grant of such lands.
I am satisfied upon the evidence of the first plaintiff that their first attempt to exercise open acts of occupation of this land was the erection of the barbed wire fence round the plot of land, and that act was immediately resisted by the defendants, who thereupon put up a sign-board on the land giving the name of the owner in possession. I am satisfied that the plaintiffs have never had undisturbed possession of the land in dispute, or any portion of it.
The only evidence before the Court as to how the three mango trees came into existence on the land and who has been harvesting the fruits of those trees, is the uncontradicted evidence given by the defendants. I accept that evidence. I also accept the evidence of their other acts of possession of the land, which also stands unrefuted.
Exhibit ``A'', the report of the Registrar of Deeds in respect of instruments affecting the land in dispute, satisfies me that the document Exhibit ``1'' could not have been mentioned in that report for the reasons given in note (b) of column 9 thereof, because Exhibit ``1'' was registered prior to the 1st October, 1948, vi., on the 7th January, 1938. I am also satisfied that the document Exhibit ``2'' could not appear in Exhibit ``A'' because it was not tendered for registration until the 3rd December, 1958, that is after the 18th November 1958, the date on which Exhibit ``A'' was issued.
Although the plan attached to Exhibit ``A'' does not contain suffient data to make it easy to identify the land to which it related with the land in dispute, the defendants have produced evidence which satisfactorily proves that the land which Nii Abose Okai granted to the late H. C. Malm under Exhibit ``A'' and which H. C. Malm and those claiming through him have occupied since the date of the said grant, is the land in dispute. The defendants have therefore discharged the onus which lay upon them to prove their possession and occupation of the said lands. I am satisfied that the 1st defendant and her sister Louisa Tagoe(nee Malm), as grantees of their father the lat H. C. Malm under Exhibit ``2'', were in lawful possession at the date when the plaintiffs entered upon the land and attempted to exercise acts of ownership on it. I am therefore satisfied that in addition to being validly executed, the deed Exhibit ``1'' effectively conferred good title in the land upon the 1st defendant and Louisa Tagoe (nee Malm). The entry of the plaintiffs upon the land, therefore, was trespass in the plaintiffs.
In suit No. 130/1958 the claim of the plaintiff Davis Quao Norquaye-Tetteh is dismissed, and judgment entered for the defendants on the said claim. On the counterclaim in that suit, there will be judgment for the 1st defendant Anna Malm and her sister Louisa Tagoe (nee Malm) against the plaintiff David Quao Norquaye Tetteh for declaration of their title to the land in dispute, and £G25 damages for trespass.
The defendants will have their costs against the plaintiff in suit No. 129/1958, agreed at 50 guineas inclusive. They will also have their costs against the plaintiff in suit No. 130/1958, agreed at 50 guineas inclusive.