–
NII KWABENA BONNE III, OSU ALATA MANTSE
V.
S. A. HAMMOND AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF APRIL, 1954
2PLR/1954/50 (WACA)
OTHER CITATION(S)
2PLR/1954/50 (WACA)
(1954) XIV WACA PP. 492-494
LEX (1954) – XIV WACA 492-494
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.,
COUSSEY, J.A.
WINDSOR-AUBREY, J.
–
MATTER/BETWEEN:
IN THE MATTER OF THE PUBLIC LANDS ORDINANCE AND IN THE MATTER OF LAND SITUATE EAST OF AND ADJOINING THE ROAD FROM CANTONMENTS TO CHRISTIANSBORG AT CHRISTIANSBORG, ACCRA IN THE ACCRA DISTRICT OF THE EASTERN PROVINCE OF THE GOLD COAST COLONY:
NII KWABENA BONNE III, OSU ALATA MANTSE AND OTHERS – Claimants
1. NII KWABENA BONNE III, OSU ALATA MANTSE – Appellant
AND
S. A. HAMMOND, MENSAH SHANG,
WILLIAM MEN-SAH,
JACOB OKAI,
S. J. BRIANDT,
H. R. WULFF,
A. O. TAWIAH,
A. G. HEWARD-MILLS,
E. K. LAMPTEY,
ODARKOR LAMPTEY,
THERESA E. BANNERMAN,
G. E. MICAH,
E. A. LARYEA,
S. A. N. KOTEY
AND
2. MOUSBAH CAPTAN- Appellant
AND
S. A. HAMMOND,
MENSAH SHANG,
WILLIAM MEN-SAH,
JACOB OKAI, ROBERT NOI,
S. J. BRIANDT,
H. R. WULFF,
A. O. TAWIAH,
A. G. HEWARD MILLS,
E. K. LAMPTEY,
ODARKOR LAMPTEY,
THERESA E. BANNERMAN,
G. E. MICAH,
E. A. LARYEA, S
A. N. KOTEY – Respondents
–
ORIGINATING COURT(S)
Appeal against judgment of Jackson, J., by some of those claiming the compensation payable on compulsory acquisition of land: No. 6/1950
–
REPRESENTATION
Akufo Addo, with Ollennu — for Appellants
Quist-Therson — for Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Public Lands Ordinance, section 12 – Compulsory acquisition – Presumption of possessor being owner – Real Property – Owner making another grant of same land – Native Law and Custom-Osu Stool land-Quarter’s right to extend its land
–
CASE SUMMARY
Government acquired land belonging originally to the Osu Stool, which had made grants to the respondents; they had been in possession down to the War of 1939; during the War the Army requisitioned most of the land. Their case was based on grant and possession, which under section 12 of the Public Lands Ordinance (text in judgment infra) created a presumption in their favour unless the Court was satisfied to the contrary. The trial Judge decided in their favour.
The second appellant relied on grants made to him after the War by the first appellant, the Head of one of the four Quarters of the Stool, who claimed that the area acquired belonged to his Quarter on two grounds –
(a) that there was a customary right in a Quarter to extend its land northwards without reference to the Stool, and
(b) that the Head of the Stool confirmed the grants to the second appellant.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
Possession by the Army was possession by the respondents for the purposes of the Ordinance, and the appellants had the onus to displace the statutory presumption in the respondents’ favour, which the appellants failed to do; for
(a) unless property was allotted by the Osu Stool to a Quarter it remained the property of the Stool and the customary right to extend a Quarter’s lands was on outskirt land up to about 100 feet of existing buildings (which was not the case here); and
(b) the Stool having granted the land to the respondents could not make a valid grant thereafter.
Case cited:-
Aryee v. Odofoley
–
–
MAIN JUDGMENT
The following Judgment was delivered:
WINDSOR-AUBREY, J.
In this appeal the claimants-appellants Nii Kwabena Bonne III, Osu Alata Mantse, and Mousbah Captan appeal against the judgment of Jackson, J., dismissing their claims for compensation in respect of land acquired for the service of the Gold Coast Colony and Ashanti under the Public Lands Ordinance.
The area acquired is described in the certificate of title, exhibit “4”, and a plan thereof is shown in exhibit “7”.
The claimant Nii Kwabena Bonne III as head of the Alata Quarter of the Osu Stool, one of the four Quarters of that Stool, claimed that the whole area so acquired formed part of the land owned by the Alata Quarter.
The claimant Mousbah Captan derived title from Nii Bonne III, who conveyed to him about half the area acquired, by an indenture of conveyance dated the 17th March, 1947. The residue of the land acquired was leased to Mousbah Captan by Nii Bonne III by an indenture lease dated the 17th March, 1947, for a period of fifty years with an option of renewal for a further period of twenty-five years. The claimants-respondents claimed that their titles to the land had been derived as the result of grant made to them by the Osu Stool at various times prior to the commencement of the World War of 1939-45.
During that war the military authorities requisitioned the major portion of the land acquired, but, subject to that interruption, the claimants-respondents have been in possession throughout. I am of the opinion that the temporary possession by the military authorities must be held for the purposes of the Public Lands Ordinance to be possession by the respondents.
It is important to bear in mind that section 12 of the Public Lands Ordinance raises a presumption of ownership in favour of parties in possession of land at the time when it is 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.”
Counsel for the claimant-appellant Nii Bonne III bases his claim on two grounds:-
(1) that the land acquired is North of the area occupied by the Alata Quarter and that each Quarter has the customary right to extend its Quarter Northwards as quarter lands required for the inhabitants of its quarter without reference to the Osu Stool;
(2) that Nee Noi Owuo the Second Osu Mantse on behalf of the Osu Stool by a deed dated the 27th May, 1947, made between himself and the claimant appellant Mousba.h Captan, confirmed all grants made to the said Mousbah Captan by all Quarters of the Osu Stool, which include, as already stated, the Alata Quarter of which first claimant-appellant is the head.
As regards ground (1), counsel relies to a considerable extent on the judgment of the West African Court of Appeal in the case of Aryee v. Odofoley (exhibit “24”) in which the Court held that land about one mile to the North of the area acquired was land attached to the Alata Quarter. On the other hand on the same day the Court of Appeal held that land about a quarter of a mile to the South-West of the land in the Aryee v. Odofoley case did not belong to the Alata Quarter.
As the learned trial Judge pointed out these judgments were made in the absence of plans and on an acceptance of a Native Court of findings of fact in each case.
This Court pointed out to counsel that if his contention was correct there were no limits whatsoever to the distance Northwards to which a Quarter could extend its area and that a Quarter could acquire land which was not contiguous to the area occupied by it. Counsel was not able to refute this suggestion.
The learned trial Judge dealt very fully with this aspect of the case, and I am of the opinion that he correctly held and that there was sufficient evidence of custom to support his findings:-
(1) that until land is allotted to a Quarter by the Osu Stool it remains the property of the Osu Stool;
(2) that members of a Quarter may, however, extend their Quarter by building on the land adjacent to or attached to a Quarter up to a distance of about 80-100 feet of existing buildings. Such land the learned trial Judge described as outskirt land.
The land acquired is not contiguous to the Alata Quarter and cannot possibly be described as outskirt land, and was therefore the property of the Osu Stool and lawfully granted by that Stool to the claimants-respondents.
As regards the deed of the 27th May, 1947, a landowner cannot derogate from his own grant. The grants to the claimants-respondents were made prior to 1939, and consequently the deed of 27th May, 1947, is of no legal effect. The onus of proving that they had a better title than the claimants-respondents who were in possession was upon the claimants-appellants, and they signally failed to discharge that onus. It follows that the decision of the trial Judge in this case in favour of the claimants-respondents ought to be upheld.’
I would, accordingly dismiss both appeals.
–
FOSTER-SUTTON, P.
I concur.
–
COUSSEY, J. A.
I concur.
–
Appeals dismissed.
–