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NANA BOAKYE TROMU II, ETC.
V.
ODEKRO KWASI GYAMI AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1953
W.A.C.A. NO. 46/52
2PLR/1953/86 (WACA)
OTHER CITATION(S)
2PLR/1953/86 (WACA)
(1953) XIV WACA PP. 265-266
LEX (1953) – XIV WACA 265-266
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
NANA BOAKYE TROMU II, NKWANTAHENE OF DUAYAW NKWANTA, FOR AND ON BEHALF OF THE STOOL AND PEOPLE OF NKWANTA – Appellant
AND
ODEKRO KWASI GYAMI, CHIEF OF TECHERE, AND ODEKRO KWASI KYERE, CHIEF OF TANOSO, FOR AND ON BEHALF OF THEMSELVES AND THE STOOLS OF AND PEOPLE OF TECHERE AND TANOSO NEAR NKWANTA – Respondents
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ORIGINATING COURT9S)
Appeal by the plaintiff against judgment of the Land Court (Supreme Court)
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REPRESENTATION
Dr. J. R. Danquah — for Appellant
K. Adumua-Bossman — for Respondents
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ISSUE(S) FROM THE WEST AFRICAN COURT OF APPEAL
REAL ESTATE AND PROPERTY LAW:- Application to fix boundary of communal land – The Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance (Cap. 120), section 3(1) — Interpretation.
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CASE SUMMARY
The above sub-section provides that:-
“Any executive decision in a dispute … relating to the ownership or boundaries of any land… in Ashanti given, confirmed, or approved by the Chief Commissioner prior to the commencement of this Ordinance, and officially recorded in a Boundary Book is hereby validated and invested with full and definite legal force and effect for all purposes, etc.”
One such decision relied upon by the plaintiff in the Court below had been given before the commencement of the Ordinance but was not recorded until after its commencement. On this account (and for another reason which was a mistake of fact and is not material here) the trial Judge rejected the decision and the plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal):
The expression “prior to the commencement of this Ordinance” qualifies the words “given, confirmed, or approved by the Chief Commissioner” which precede that expression, but does not relate to the words “and officially recorded in a Boundary Book” which follow; the date of recording is immaterial.
Case cited:-
Chief Kojo Owusu and Another v. Chief Kwame Dapaah, Privy Council judgment delivered 3rd July, 1952.
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MAIN JUDGMENT
The following Judgment was delivered:
KORSAK, J.
Plaintiff has instituted this action under section 3 of The Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance (Cap. 120) of the Gold Coast Laws, praying the “Land Court (Supreme Court)” to cause the boundaries of the villages and lands of Techere and Tanoso, which had been adjudged the property of the plaintiff, by a validated executive decision given by Sir Francis Fuller, Chief Commissioner of Ashanti, on 28th February, 1906, and by a further validated executive decision given by Sir John Maxwell, Chief Commissioner of Ashanti, dated 3rd October, 1929, to be fixed”. Counsel for the defendants raised a preliminary objection and contended that the said Ordinance gives validity or legal effect to decisions approved by the Chief Commissioner prior to 30th April, 1929, but as the validated decisions on which plaintiff relies were approved on the 3rd October, 1929, the issue raised is one of boundary dispute between chiefs, a matter on which the Court had no jurisdiction as a Court of first instance. He further contended that the words prior to the commencement of this Ordinance should be read as governing the whole paragraph in which-they appear and not limited to certain words only in the said paragraph.
The learned Judge, persuaded by this argument, ordered plaintiff to adduce evidence to prove that the validated judgments he relies on had been recorded in the Boundary Book under Cap. 120. As a result Joseph Classpeter, who described himself as the custodian of the Boundary Book, gave evidence and produced exhibit “A” – the Executive Decision given by Sir Francis C. Fuller on 28th February, 1906; but the Court rejected another validated decision which is a certified copy of a record contained in a book, certified by Sir John Maxwell, Chief Commissioner, as a “Boundary Book” for the purpose of the “Boundary; Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance, 1929” on the following ground:-
“I think it must not only be proved that a decision was approved or validated but it must also be proved that it was made by a person having custody to do so. There is no such proof and I must reject it.”
In fact, however, the said document is certified by John W. Poku, “Registrar, C.C.A.’s Court and Custodian of Boundary Book (8.6.42)”.
In his ruling upholding the preliminary objection the learned Judge said:-
“The plaintiff has brought his action under section 3 of Cap. 120. In my view as the executive decisions relied upon by the plaintiff were validated and not recorded before the 3rd and 4th October, 1929, the plaintiff cannot institute his action under the Ordinance as the decisions cannot operate as res judicata in rem.”
With due respect, I disagree with this interpretation of section 3, sub-section 1, because it imports into it a meaning which the section does not support and which in my view was not intended.
Section 3, sub-section 1 reads:-
“Any executive decision in a dispute or matter relating to the ownership or boundaries of any land or to tribute or fishery rights in Ashanti given, confirmed, or approved by the Chief Commissioner prior to the commencement of this Ordinance, and officially recorded in a Boundary Book is hereby validated and invested with full and definite legal force and effect for all purposes whatsoever as against all persons whomsoever the rights of the Crown alone being reserved.”
In my opinion the expression “prior to the commencement of this Ordinance” in the section qualifies the words “given”, “confirmed”, “or approved” by the Chief Commissioner; but it does not relate to the sentence after the word “Ordinance”, viz. “and officially recorded in a Boundary Book”. It follows that the date when a decision is officially recorded in the Boundary Book is immaterial provided it was given, confirmed, or approved by the Chief Commissioner prior to the commencement of the Ordinance.
For these reasons, I consider that the case should be remitted to the Court below with directions to admit the said validated decision which was rejected, in evidence, and for the Court to determine the issues raised by the claim. In this connection it might be of assistance if the Court would consider the judgment of the Privy Council in the case of Chief Kojo Owusu and Another v. Chief Kwame Dapaah delivered 3rd July, 1952.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed: order accordingly.
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