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BEN. O. ARYEE AND ANOTHER
V.
MADAM ADOFOLEY
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
8TH DAY OF MARCH, 1951
2PLR/1951/11 (WACA)
OTHER CITATION(S)
2PLR/1951/11 (WACA)
(1951) XIII WACA PP. 161-163
LEX (1951) – XIII WACA 161-163
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
COUSSEY, J.
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BETWEEN:
BEN. O. ARYEE, E. O. ARYEE AND M. A. ARYEE – Plaintiffs-Respondents
R. J. ARYEE – Appellants-Co-Plaintiff
AND
MADAM ADOFOLEY – Defendant-Appellant-Respondent
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ORIGINATING COURT(S)
Appeal from Land Court (Land Appeal No. 117/49)
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REPRESENTATION
Nii Amaa Ollennu — for the Appellant
J. Quist-Therson — for the Respondent
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Christiansborg Native Law and Custom – Alienation of “Outskirt” land in charge of a Quarter of Osu Stool – Osu Mantse cannot alienate land without prior consultation with Head and Elders of Quarter but not bound to follow their advice.
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CASE SUMMARY
The appellants were the plaintiffs.
The plaintiffs acquired what is termed “outskirt” land from the head and elders of the Alata Quarter of the Osu Stool. Subsequently the Osu Mantse granted the land to the defendant without the consent of, or without consultation with the head and elders of the Alata Quarter. Counsel for the plaintiffs contended that the grant to the defendant was void and of no effect.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Where un-alienated “outskirt” land is in the charge of the head and elders of a Quarter, the final decision as to whether to make a grant of such land rests in the Osu Mantse, but, although he may reject the advice of such head and elders of a Quarter, he cannot make a valid grant without prior consultation with them.
2. Accordingly the grant to the defendant was void.
Cases referred to:
(1) J. C. Baddoo v. Ayorkor, Land Court, Accra, 10th August, 1949 (unreported).
(2) Nunoo &. Schandorf v. Tettey Ahuloo &. Lutterodt (unreported).
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
This is an appeal against the decision of Wilson, C.J. reversing the judgment of the Ga Native Court “B”, Accra, in respect of a declaration of title to a plot of land at Christiansborg.
The plaintiff’s case was that the land in dispute was attached to the Alata Quarter (one of the four Quarters under the Osu Stool) and that it had been granted to him by the sub-chief and elders of that Quarter. The defendant, on the other hand, based her claim on a direct grant from the Osu Mantse. In her own evidence she stated that the grant had been made in his capacity as head of Kinkawe Quarter but in her conveyance (Exhibit “B”) the land was described as being attached to the Osu Mantse’s Stool. Yet another variation of the theme was introduced by the Osu Mantse’s representative, who stated that it belonged to the Anahor Quarter. The Native Court who inspected the locus in quo accepted the evidence for the plaintiff that the land is what is termed “outskirt land” of the Alata Quarter. The Chief Justice accepted the finding of the Native Court on this point, and I see no reason for this Court to depart from its normal practice of not interfering with concurrent findings of fact of the Courts below.
Having found that the land was attached to the Alata Quarter the learned Chief Justice proceeded to consider whether this precluded the Osu Mantse from granting it to one of his subjects. He came to the conclusion that it did not, in as much as the Osu Mantse has a concurrent right for alienate Quarter lands that have not already been alienated. The first question to be considered, then, is whether there had, in fact, been a previous alienation. As to this, the conveyance of 12th December, 1947, to the defendant (Exhibit “B”) is admittedly subsequent to the conveyance to the plaintiff (Exhibit “A”) which was made on the 12th November, 1947. The Chief Justice, however, held that a prior oral grant had been made to the defendant and that under native law and custom it is the oral grant which is decisive. That is a correct statement of the law. But where reliance is placed upon an oral grant under native custom it should be proved that all the requisite formalities under native custom had been complied with. The best evidence of this is to call some of those who witnessed the transaction, and as it was alleged to have taken place as recently as 1946, there should have been no difficulty about procuring such evidence. But this was not done. The defendant’s evidence merely consisted of a bare assertion by herself that “about June, 1946, I obtained land from Osu Mantse”. The only corroboration of this was a recital in Exhibit “B” that” on or about the 29th day of June, 1946, the grantor with the consent of his principal elders and councillors granted the land”. The recital in question is followed by one that the grantee “entered into and has been in possession of the said piece of land ever since”. That statement is not supported by the evidence, for the defendant herself admitted that she did not put up boundary pillars until after the date of her conveyance and there was no evidence that she entered into possession before that date. This ex-post facto recital cannot therefore be regarded as satisfactory evidence of the existence of the alleged oral grant. It is clear from their judgment that the Native Court did not believe it, and with due deference to the learned Chief Justice I do not think he was justified in reversing the trial Court’s finding on this question of fact. In my view the alleged previous oral grant was not proved and this being so, the first alienation was that effected by the conveyance to the plaintiff. On this ground alone I would allow the appeal.
But that is not the only reason I would so do, for even if there has been a previous oral grant there was no evidence that the Osu Mantse informed the Alata head and elders of his intention to make one. The Native Court came to the conclusion that the Osu Mantse was “wrong in granting by deed of gift land of his subordinate chief to his people without the knowledge, consent and approval of the said subordinate chief”. The Chief Justice did not deal specifically with the question whether prior notice to the Alata head was necessary, but as he allowed the appeal it may be assumed that, in his opinion, there was no obligation upon the Osu Mantse to give such notice.
This raises a question of Christiansborg native customary law of some importance. In his judgment in J. C. Baddoo v. Ayorkor (1) which the Chief Justice mentioned in his judgment in the present appeal, he referred to the evidence of G. B. Hammond, a councillor attached to the Osu Stool, which the Chief Justice paraphrased thus: that even if a subject of the Stool approached the Osu Mantse directly for a grant of land instead of going to the headman of the Quarter, the Osu Mantse could grant him the land without the concurrence of the elders of the particular Quarter, but he suggested that in practice, as a matter of courtesy the Mantse would inform the elders of the grant. The actual words used by the witness were “If any subject of Osu from any Quarter approached Osu Mantse for a grant of land the Mantse has the right to inform the elders of the Quarter respectively”. With due respect to the learned Chief Justice I think he has read something more into these words than what the witness intended. The expression “has the right to inform” is not as clear as it might be, but what I take the witness to have meant is that the right thing to do is to inform the elders of the Quarter, and not merely that he might do so as an act of courtesy, for that would be a mere platitude. This interpretation of Hammond’s evidence is, I think, more in accord with certain passages in the judgment of Osu Native Tribunal in the unreported case of Nunoo and Schandorf v. Tettey Ahuloo and Lutterodt (2) in which the same question arose. In that case a predecessor of the Osu Mantse granted some land which covered a portion already granted by the elders of the Anahor Quarter, and the Mantse when this was brought to his notice, admitted that he should have acted through the Quarter head. It was admitted by the defendant in that case that “if the Mantse should go to any Quarter to do anything without consulting the elders there it is not customary and he goes wrong”. This statement of native law seems to have been accepted by the Tribunal as they found for the plaintiff.
After a full consideration of the authorities quoted it seems to me that under Christiansborg customary law the position as to “outskirt land” is this: Where un-alienated land is in the charge of the head and elders of a Quarter the Osu Mantse may not grant any part of such land without prior consultation with the head and elders of the Quarter. I think that the Native Court went too far in stating that the consent and approval’ of the subordinate chief and his elders must be obtained.
The final decision in my opinion rests with the Osu Mantse and his elders, for the fact that un-alienated land of the Osu Stool is by custom placed in charge of the several Quarters does not alter its fundamental character, or derogate from the right of the Osu Mantse and his elders to dispose of any part of it that has not already been alienated by the Quarter head and elders. But the Osu Mantse may not do so until the head and elders of the Quarter concerned have been afforded an opportunity of putting forward any objection they may have to the proposed grant, and the customary way of doing this is to hold a meeting of those concerned.
In the present case, as I have already said, there had been in my judgment a prior grant to the plaintiff by the head and elders of Alata Quarter, but apart from this, the grant by the Osu Mantse to the defendant was made without the prerequisite of consultation with the Quarter head and elders. For these reasons I consider that the appeal should be allowed and that the decision of the Native Court should be restored.
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LEWEY, J. A.
I concur.
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COUSSEY, J.
I also concur.
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Appeal allowed.