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(CONSOLIDATED SUITS)
NII AYITEY ADJIN AND ANOTHER
V.
NII ADJEI ONANO V AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
18TH DAY OF MARCH, 1954
2PLR/1954/35 (WACA)
OTHER CITATION(S)
2PLR/1954/35 (WACA)
(1954) XIV WACA PP. 472 – 475
LEX (1954) – XIV WACA 472 – 475
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
IN THE MATTER OF THE PUBLIC LANDS ORDINANCE
AND
IN THE MATTER OF LAND SITUATE AT ACCRA IN THE ACCRA DISTRICT OF THE EASTERN PROVINCE OF THE GOLD COAST COLONY AND REQUIRED FOR A UNIVERSITY COLLEGE
W. G. BOI OWOO, HEAD OF OWOO FAMILY (SUBSTITUTED) AND FOURTEEN OTHERS – Claimants
AND
IN THE MATTER OF THE PUBLIC LANDS ORDINANCE
AND
IN THE MATTER OF LAND SITUATE ON THE ACHIMOTA-CANTONMENTS ROAD AT ACCRA IN THE ACCRA DISTRICT OF THE EASTERN PROVINCE OF THE GOLD COAST COLONY:
NII AYITEY AD JIN III, GBESE MANTSE AND THIRTEEN OTHERS – Claimants
1. NII AYITEY ADJIN AND NUMO AYITEY COBBLAH – Appellants
V.
NII ADJEI ONANO V, LA MANTSE AND OKWIE OMABOE, OSIAHENE, ACTING MANCHE – Respondents
2. OKWIE OMABOE, OSIAHENE, AG. OSU MANTSE – Appellants
V.
NII ADJEI ONANO V, LA MANTSE – Respondent
3. W. G. BOI OWOO, HEAD OF THE OWOO FAMILY, ETC. – Appellant
V.
NII ADJEI ONANO V, AND OKWEI OMABOE, OSIAHENE, AG. OSU MANTSE – Respondents
(CONSOLIDATED)
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ORIGINATING COURT(S)
Appeals by three sets of claimants against another claimant in a Government land acquisition case from the High Court: No. 89/52.
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REPRESENTATION
First Appellants in person
Bossman — for the second Appellants
Akufo Addo — for the third Appellants
Ollennu — for the Respondents to the appeals
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Acquisition of land — Public Lands Ordinance (Cap. 113), section 12 — Presumption in favour of party in possession — Onus on others to show better title
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CASE SUMMARY
Section 12 of the Ordinance (text in judgment infra) raises a presumption of ownership in favour of those in possession at the time of acquisition; other claimants have the onus to show a better title.
Land was acquired by Government in 1947 under the said Ordinance. At the time of the acquisition most of it was in the possession of, and being farmed by, subjects of the L. Stool, and the remainder was in the possession of the O. Stool. By an indenture made in 1890 the appellants in the first appeal conveyed part of the land in question to a Mission, and nothing more could be urged in their favour. The trial Judge was of opinion that whatever rights they may have had in the past had been lost to others by grant or acquiescence and dismissed their claim. They appealed.
The O. Stool was the appellant in the second appeal. The O. Stool claimed more than was in its possession; it maintained that the L. Stool, as original owners, had granted the entire land outright to the O. Stool and that there had been a “casual non-user” which did not affect the O. Stool’s ownership; but the trial Judge found that the L. Stool had granted about three-quarters of the land and that not outright, and that the O. Stool had abandoned most of the land in 1916, which then reverted to the L. Stool. The O. Stool appealed.
The appellant in the third appeal claimed that there had been a grant to his family a century before, and also pointed to some other acquisition proceedings in support of his claim. The trial Judge noted that the Mission did not know about the alleged grant, in 1890. As for the other proceedings, the dispute was “settled without prejudice to any claims any of the parties may have to neighbouring lands hereafter”, and the respondents (the Stool of L.) were not parties in those proceedings.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) The appellants in the first appeal could not, by the mere fact of conveying an area in 1890, establish a case against the respondents, the Stool of L.
(2) It is a general proposition that where a Stool merely grants the use and occupation of its land to a person it reverts to the Stool if it is abandoned; and the evidence warranted the trial Judge’s conclusion against the claim of the O. Stool to the entire land.
(3) There was no evidence that any of the farmers in possession were members of the third appellant’s family, and no evidence of the alleged grant of long ago to that family; nor did the other acquisition proceedings affect the respondents’ claim in this case.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a judgment of Jackson, J., in a case arising out of the acquisition of land situate in Accra, under The Public Lands Ordinance (Cap. 113), which was required for the University College. The area acquired is shown in pink on the plan, exhibit “3”.
Details of the claims are fully discussed in the judgment of the learned trial Judge. The first appellants, who were the fifth and eighth claimants on the record in the Court below, between them, claimed ownership of the whole area acquired; the second appellant, third claimant in the Court below, whose claim was on behalf of the Osu Stool, also claimed ownership of the whole area; the third appellant, first claimant, claimed the whole area with the exception of a small portion to the south of the land, and the respondent, representing the Labadi Stool, likewise claimed ownership of the whole area.
In considering this matter I think it important to bear in mind, as the learned trial Judge obviously did, the provisions of section 12 of the Public Lands Ordinance which raise a presumption of ownership in favour of parties in possession of land at the time when it is purchased or compulsorily acquired under the Ordinance. That section reads as follows:-
“In all cases where any question shall arise respecting the title to any lands to be acquired under this Ordinance the parties in possession of such lands as being the owners thereof at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands, unless the contrary be shown to the satisfaction of the Court, and such parties shall be entitled to receive the purchase money or compensation for such lands, but without prejudice to any subsequent proceedings against such parties at the instance of any person having or alleging a better right thereto.”
It seems to me to have been proved beyond doubt that at the time of the acquisition the majority of the land in question was in the possession of, and being farmed by, subjects of the Labadi Stool, and the trial Judge so found. The remainder, a comparatively small area in the north-western corner, was in the possession of subjects of the Osu Stool.
The onus of satisfying the Court that they had a better title to the land than the Labadi and Osu Stools was clearly upon the first and third appellants.
The fifth claimant, Nii Aryeetey Cobblah, is the caretaker for the Ga, Gbese and Korie Stools and is bead of the Onormroko Family, three of whose members, by an indenture dated 18th February, 1890, exhibit “28”, conveyed some sixteen acres of the land in dispute to the Basel Mission. When dealing with the claims of the first appellants the learned trial Judge said:-
“But for this one isolated instance I cannot find any evidence which I can accept of any act of any members of the Onormroko Family which could be described unequivocally as being the exercise of a right as owner of the land, and certainly there is no evidence that at the date of the taking of the lands in December, 1947, they were in possession of such lands as being the owners and it is clear that whatever rights or interests in land which they may have possessed in the past and which were rights as the first settlers in waste and unoccupied land, have been lost to other parties either by express grant or long acquiescence in the use and occupation of the land; and l- do dismiss the claims made by the Gbese Stool and the Ononnroko Family.”
The “isolated instance” has reference to the conveyance, exhibit “28”. I am unable to agree with the submission of these appellants that the trial Judge erred in declining to award them any compensation as it seems to me that they failed to establish a case for it. I would accordingly dismiss their appeal.
As to the claim of the third appellant, the learned trial Judge said, inter alia:-
“I have no doubt that people of the Owoo family in common with people of other families did live at Legon and were members of the Mission Community, but at the date of this acquisition in 1946 the parties in possession of these lands were Labadi and Osu farmers and there is not a tittle of evidence before me that any of these farmers were members of the Owoo family.
“It is upon this evidence, evidence which appears to me to have been manufactured, that I am asked to rebut the presumption that the parties in possession of such lands as being the owners thereof are lawfully entitled to such lands and to say that the Owoo Family is so entitled.
“The claim, in my judgment, has no merit in substance whatsoever and I do dismiss it.”
This appellant based his claim on a grant which he alleged had been made to the Owoo Family by the Ga Manche approximately 100 years ago, and his counsel complained that there is no express finding in the judgment that such a grant had not in fact been made, and he strongly urged that the acquisition proceedings, exhibit “51”, support the appellant’s claim. I am not impressed with either argument. In the first case, the learned trial Judge, when dealing with the question whether there had been a grant, said:-
“… It is remarkable that if there had ever been such a grant of land in this area to Owoo by the Ga Manche and if as was evidenced the village of Legon and the surrounding area was peopled by members of Owoo’s family that the Basel Mission did not become acquainted with such a fact. I can only say that if such a grant had even been made to Owoo of this piece of land that in 1890 the members of his family living there appear to have been quite ignorant of that fact,”
and again, “if this land had been granted to, and in possession of the Owoo Family, how was it that Labadi people were able to build a village at Onyatia”? It seems to me that you could hardly have a clearer finding against the alleged grant. In the second case, that dispute was settled “entirely without prejudice to any claims any of the parties may have to neighbouring lands hereafter”, and the respondents were not parties in the proceedings. The learned trial Judge was not satisfied with the appellants’ claim, and nothing that was said at the hearing of this appeal has persuaded me that he ought to have been. I would, therefore, also dismiss this appeal.
As between the second appellant, the Osu Stool, and the respondents, the Labadi Stool, the former did not complain of the learned trial Judge’s finding of fact that the Labadis, at the time of the acquisition, were in occupation of a greater area of the land in question than the Osus, but maintained that although the land originally belonged to the Labadis the latter had made an outright grant of it to the Osu Stool and their counsel argued that there had merely been a “casual non-user” of a portion of the land by the Osus which did not affect their ownership.
The learned trial Judge, however, found that the “use and occupation” of about 75 per cent of the area in dispute had originally been granted to the Osus by the Labadis, not an outright grant, and that when the Osus abandoned the greater part of the land in or about the year 1916, under customary law the control and management of the land abandoned automatically reverted to the Labadi Stool.
Counsel for the Osus did not dispute the general proposition that where a stool merely grants the use and occupation of its land to any person it reverts to the stool if it is abandoned, but submitted that previous acquisitions and the evidence, both documentary and oral, proved conclusively that there had been an absolute grant by the Labadi Stool to the Osu Stool.
The facts, and his reasons for coming to his conclusions, are fully set out in the judgment of the learned trial Judge and I do not think any good purpose: would be served by a recapitulation of them. It is sufficient to say that, in my view, there was evidence before the Court upon which it could properly reach the decision it did. The onus of proving that they had a better title to the land was upon the Osus, and they failed to satisfy the Court in this respect.
In the result the judgment appealed against awards the respondents two-thirds of the assessed compensation, and the second appellant one-third, and I feel bound to say that, in my opinion, having regard to the findings of fact, the latter award does not appear to me to be ungenerous. It follows that, in my view, the decision of the trial Judge in the case of this appellant ought to be upheld. I would accordingly dismiss their appeal.
Since the substantial dispute on this appeal has been between the second appellant and the respondents I would order that the former pay two-thirds of the respondents’ costs, fixed at £116 18s. 0d., and the first and third appellants one-half each of the remaining third fixed at £29 5s. 0d. each.
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COUSSEY, J.A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeals dismissed.