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NII AZUMA III
V.
PETER QUARSHIE FISCIAN AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
13TH DAY OF MARCH, 1953
LEX (1953) – XIV WACA 287 – 289
OTHER CITATION(S)
2PLR/1953/23 (WACA)
(1953) XIV WACA PP. 287 – 289
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORAH, J.
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BETWEEN:
NII AZUMA III – Appellant
AND
PETER QUARSHIE FISCIAN AND MARY A. FISCIAN AND FIVE OTHER CASES (CONSOLIDATED) – Respondents
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ORIGINATING COURT(S)
Appeal by the co-defendant in consolidated suits: No. 12/52.
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REPRESENTATION
K. Adumua-Bossman — for Appellant
C. C. Lokko — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- The “Brazilian” lands – Land allotted to Africans from Brazil relocating back to Africa – Claim that land apportioned among the families set against claim by Chief that the land had not apportioned – How treated
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CASE SUMMARY
It was common ground that about 1836 a shipload of Africans came from Brazil under a common leader and several group-heads and were given land to dwell in and bush-land to cultivate. The appellant, who was the co-defendant in the suits, sold plots to the other defendants. The respondents, as descendants of a group-head, claimed that that leader apportioned the land to the groups, and that their ancestors had been in possession of their own area; the appellant alleged in his defence that the land remained the land of the “Brazilian” community without apportionment and he as their Chief could sell or grant portions: thus the points were (1) whether there had been any such apportionment, and (2) whether the respondents’ ancestors had been in possession of the plots in question.
The respondents were the plaintiffs in the Native Court, where they lost, but they won in the Land Court on appeal; the co-defendant in the suits appealed.
(Previous cases bearing on the “Brazilians’” land are listed below; they are referred to in the judgment on appeal infra.)
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) Previous cases show that there had been apportionment of areas to the group heads of the “Brazilians” and that their possession had been recognised by the Courts as enabling them to maintain and defend suits even against the present appellant or the previous Chief.
(2) There was abundant evidence that the respondents’ predecessors had been in possession of the land in dispute and that fact was supported by plans put in as exhibits in a previous case, one of them being a plan put in by the previous Chief.
Cases cited:-
(1) Jemima Nassu and Others v. TM Basel Mission and Another, 1915, unreported (Supreme Court)
(2) J. E. Maslino v. J. A. Nelson, 1919, unreported (Native Court)
(3) Nii Anyestei Kwao etc. v. Nii Azuma III and Others, 1930, unreported (Native Court)
(4) Nii Azuma III v. Laliki Aruna and Anolher, 1949, unreported (Native Court)
(5) Martin Nortei Codjoe and Others v. Emmanuel Kwatchey and Others, 2 W.A.C.A., 371 at 374
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MAIN JUDGMENT
The following Judgment was delivered:
KORSAK, J.
This is an appeal from the decision of Lingley, J., who reversed the judgment of the Native Court “B” of Ga Division. Plaintiffs-respondents instituted six separate suits against six defendants for declaration of title- to the land the subject-matter of dispute and a perpetual injunction. These suits were later consolidated, after which Nii Azuma III was upon his own application joined as co-defendant. Thereafter, the co-defendant contested the claim on behalf of the other defendants, be having sold or otherwise granted the several plots to the defendants.
The land the subject-matter of the claim is a portion of a large piece of land granted to a group of people known as “Brazilians” who arrived in Accra about 1836 under their leader Mama Sokoto. Plaintiffs-respondents contend that Mama Sokoto apportioned the said land to his people “according to group sections of the Brazilians as follows: Mama Nassu, Aruna, Maslino, Nakpala, Damburka, Abdulamanu and others”: that they, plaintiffs-respondents, the descendants of Abdulamanu, one of the beads of the said sections, to whom the land in question was assigned for the use and occupation of himself and members of bis family or section; and that their ancestors have been in possession thereof undisturbed until the time of Ezekiel Kwaku Fiscian when Odoitso Odoi Kwao family attempted to claim it, in a suit in 1946 which they successfully defended.
The co-defendant-appellant admits that “some time in the year 1836 Brazilians landed here, they came in a group in one cargo ship; there were seven elders among them namely Mama Sokoto and others”; that land was granted to them; but denies that it was apportioned to the various groups; he contends that the land remained the property of the Brazilian Community of which he is now the Chief; also that in his capacity as Chief of the Brazilians he is in charge of the said property and therefore was entitled to sell or grant portions of the said property of the Brazilian Community to the defendants.
It would appear that the main issues between the plaintiffs-respondents and the co-defendant-appellant are (1) whether the land which was granted to the Brazilians was apportioned or assigned to beads of the several sections for the use and occupation of their sections or families, (2) if so, whether the plaintiffs-respondents’ predecessors or ancestors have been in possession or occupation of the portion of the land now in dispute.
To answer these questions we are assisted by several judgments, of the Native Court, Divisional and Land Courts of the Supreme Court, and the West African Court of Appeal, which were adduced and tendered in evidence in the Native Court.
In the case of Jemima Nassu and Ors. v. The Basel Mission and Another, 1915, Crampton Smyly, C. J ., said in his judgment:-
“It appears that as far back as the thirties a ship load of Africans were landed from Brazil where they were taken from the Niger; after they were landed the Ga Chiefs gave them land to build on in the town of Accra and also bush land to cultivate; these lands were divided up amongst the Brazilians by their headman Sokoto and the land in dispute forms a portion of the land known as Mama Nassu’s land. Mama Nassu being one of the Brazilians to whom land was assigned.”
In the case of J. E. Maslino v. J. A. Nelson it was held in the judgment of Kojo Ababio IV Ngleshi Manche delivered on 30th June, 1919, that although the defendant was Chief of the Brazilians, yet the spot where he sold to Mr. Pinnock was a portion of plaintiff’s father’s land, “therefore defendant bad committed trespass and the land must go back to the plaintiff with damages of £10 and that defendant bad no land in that direction.”
In the action instituted by Odoitso Odoi Kwao Family against Nii Azuma III it will be observed that the following persons, viz. Nathan Cojo Lawrence as Head of Lawrence Family, Ezekiel Fiscian as Head of Fiscian Family, Laliki as Head or representative of Aruna Yawafio Family, Amba Fatuma as Head or representative of Aruna Dangana Family, were upon their application made co-defendants and their respective claims were indicated in the plan which was made for that case.
In the case of Nii Azuma III v. Laliki Aruna and Another coram Ga Native Court “B” plaintiff sued as “Nii Azuma Ill Chief and Head of the Brazilian Community of Accra, for a declaration that the title to the whole of the Brazilian Community land situate at north-east Adabraka behind Farrar Avenue is vested in the plaintiff for and on behalf of the whole Brazilian Community-and that the defendant’s cultivation of portions of the said land for farming purposes and first defendant as member of the said community does not give the said defendant any title to any portion of the said Brazilian Community land “.
It was held in a judgment delivered on 26th February, 1949, inter alia, “Defendant has proved beyond all doubts cultivation and occupation which is also confirmed by the writ for so many years. There is abundant proof that respective families own portions in the common Brazilian land by cultivation, etc.”.
In my opinion, these several judgments and claims in respect of portions of the land originally granted in 1836 support the contention that some kind of apportionment or assignment was made to some representatives of the various sections of those to whom the grant was originally made; and that their possession or occupation of the areas assigned to them have been recognised by the Courts as enabling them to maintain claims and defend suits even against the co-defendant as their Chief and his predecessor in title.
As regards the second question, whether plaintiffs-respondents’ predecessors have been in occupation or possession of the land in dispute, there is abundant evidence on record, supported by the two plans tendered in evidence. Exhibit “K” is a plan made by the co-defendant-appellant’s predecessor in title in the year 1930 and exhibit” G is the plan made for the case of Nii Anyelei Kwao etc. v. Nii Azuma III and Ors. In both plans the area occupied and farmed by plaintiffs-respondents’ ancestors was shown and the fact that their ancestors had occupied and farmed that area does not appear to have been challenged by the co-defendant or his predecessor in title.
Against the weight of these judgments and other evidence of user and occupation, the co-defendant repeated his assertion which he had made in the previous cases that the land granted in 1836 to the Brazilians has not been apportioned or assigned to groups or families, or heads of such groups or families and that the whole land is vested in him as Chief of the Brazilians. He, however, says that since 1946 he as Chief of the Brazilians has “distributed and shared the Brazilian land among them, and assigned three plots t..o plaintiffs’ father, but he did not accept them ”.
In Martin Nortei Codjoe and Others v. Emmanuel Kwatchey and Ors. (5), Webber, C.J., Sierra Leone, said:-
“The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over ruling it if on full consideration it comes to the conclusion that the judgment is wrong.”
In my opinion this is what the learned Judge of the Land Court sitting in his appellate jurisdiction on the judgment of the Native Court has done, after careful consideration of the evidence. In my view the learned Judge was justified in reversing the decision of the Native Court. This appeal should therefore be dismissed.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal dismissed.
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