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CHIEF SAKPAKU AND OTHERS
V.
CHIEF LUGU AHIAKU OF ADUTOR AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
27TH DAY OF MAY, 1942
2PLR/1942/16 (WACA)
OTHER CITATION(S)
2PLR/1942/16 (WACA)
(1942) VIII WACA PP. 76 – 84
LEX (1942) – WACA PP. 76 – 84
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
CHIEF SAKPAKU, KUEDOADJI GAKPETOR AND KOFI DJIVOR FOR THEMSELVES AND AS REPRESENTATIVES OF AGOMENU-ADELAKPUI FAMILIES OF WLITE AND MOYI – Plaintiffs-Appellants
AND
CHIEF LUGU AHIAKU OF ADUTOR, SEBUAFOR DJRAKPATA WORWUI OF GOGENU, BERDI OF GOGENU, AKPALU OF AGBAGOME, WOKAKO KPEWU OF DEME, AGBALOR HODANU OF GOGENU, DJANADO AZUMA OF GOGENU AND DJUDJOR ADJOMANI OF AGBAKOPE – Defendants-Respondents
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REPRESENTATION
K. A. Bossman with W. B. Van Lare — for Appellants
C. S. Acolatse — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Declaration of title — Damages for trespass — Injunction — Res judicata — Inaccurate plan — Proper treatment of by court
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CASE SUMMARY
This is a claim for a declaration of title to land and for damages for trespass and an injunction. The Court of the Provincial Commissioner, Eastern Province, stopped the case in the Native Tribunal and transferred it to the Divisional Court. The Judge held, that cases between ancestors of both plaintiffs and defendants which occurred between 1904 and 1907 were confusing as regards the localities and could not be considered res judicata as far as the present case is concerned, and that the defendants and their ancestors had been in continuous and effective possession of a portion of the land, viz: West of the River Todji in respect of that portion.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. That the plaintiffs/appellant could not have succeeded in the Court below without producing a plan showing accurately the boundaries of the land claimed;
2. That the real claim was for nominal damages and an injunction in respect of trespass by removing beams from trees felled by plaintiffs/appellants which is locally recognized as constituting a claim to ownership of land;
3. That though the earlier cases could not be considered as res judicata their outcome was clear and covered part of the land now in dispute and resulted in the success of the plaintiffs/appellant and that the trial Judge failed to give sufficient weight to evidence and recorded findings which are demonstrably incorrect.
Appeal allowed, judgment of Court below set aside and case remitted to Court below to be re-heard by a different Judge.
Case referred to:-
Kuma v. Kuma (5 W.A.C.A. p. 4).
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND DOORLY, J.
In this case the plaintiffs-appellants caused to issue on the 7th May, 1940, a summons in the Highest Native Tribunal of Big Ada to the defendants-respondents in the following terms:
”You are commanded to attend this Tribunal at Big Ada on Monday the 24th day of June, 1940, at 8.30 o’clock a.m to answer a suit by Chief Sakpagu, Kuedoadji Gakpetor and Kofi Djivor for themselves and as representatives of Agomenu Adelakpui families of Wlite and Moyi against you.
“The plaintiffs’ claim is that the Agomenu-Adelakpui families are the owners of all that piece or parcel of land commonly known and called ‘Gogenu land’ situates and being in the Ada and Anlo (Awuna) States and bounded as follows:- On the East by Worwoe River, Terve Town and Agordoe Town, on the West by Boatri village and Fiere Tribal lands, on the North by Wuta family land, on the South by Gbenyigbenyi and Haho Creeks with all the economic trees and creeks thereon namely:- (1) Aforhie Creek; (2) Srotor Creek; (3) Srotorvia Creek; (4) Lebetorwa Creek; (5) Likor Creek; (6) Agortor Creek; (7) Menyemidenuwome Creek; (8) Yaduta Creek; (9) Betorwu Creek; (10) Klanufoe Creek; (11) Asiativa Creek; (12) Asiataga Creek; (13) Gagorme Creek; (14) Agbotorwu Creek; (15) Akpatorwu Creek; (16) Shitorwu Creek; (17) Djorkplor Creek; (18) Kortale Creek; (19) Datorwu Creek; (20) Alatorwu Creek; (21) Ekpatorwu Creek; (22) Nyakpe or Deka Creek.
II. £500 damages from the defendants jointly and severally for trespass committed by the defendants by entering upon occupation and use of the said piece of land and fishing in the said creeks thereon and for interference with the peaceful possession and occupation of the plaintiffs.
III. An order of perpetual injunction restraining all the defendants jointly and severally, their agents, servants and labourers from interfering with the said piece of land and the Creeks thereon;”
On the 16th September, 1940, the Court of the Provincial Commissioner, Eastern Province, stopped the case in the Tribunal and transferred it to the Divisional Court. In the Divisional Court pleadings were ordered and filed. The statement of Claim is as follows:-
“1. The plaintiffs are the heads and representatives of the Agomenu Adelakpui families of Wlite and Moyi in the Awuna State in the Keta District.
2. The plaintiffs are also the present successors according to Native Customary Law of their ancestors Agomenu and Adelakpui respectively.
3. The plaintiff derive title to and claim the land in dispute more accurately described hereunder through their said ancestors Agomenu and Adelakpui whose families they represent.
4. The plaintiffs immediately descended from the defendants in a case entitled “Ahiaku v. Djivoh, Asiegbe, Sakpaku and Dei” in respect of and concerning the said land in dispute, decided in favour of plaintiffs’ immediate ancestors that is to say defendants in the case at the Provincial Commissioner’s Court, held at Keta, on or about the 9th day of September, 1907.
5. The judgment in said case in paragraph 4 supra was confirmed on appeal in favour of plaintiffs’ immediate ancestors.
6. The first defendant herein in the son of the plaintiff Ahiaku in the case referred to in paragraphs 4 and 5 supra, and the other defendants are the agents and servants of the first defendant herein.
7. Without permission, leave or licence of the plaintiffs the defendants have for some time been cultivating and cutting down economic trees on the said land in dispute, and in various ways been interfering with the agents or servants of the plaintiffs on the land in dispute.
8. Plaintiffs therefore claim for themselves and as representatives of the Agomenu-Adelakpui families of Wlite and Moyi –
(1) a Declaration of title or ownership of Gogenu land, the land in dispute;
(2) £500 damages from the defendants jointly and severally for trespass committed by the defendants by entering upon, occupying and using the said land in dispute, and fishing in the creeks thereon and for interfering with the peaceful possession and occupation of the plaintiffs and
(3) an order for Perpetual injunction restraining all the defendants jointly and severally their agents, servants or labourers from interfering with the said land in dispute and the creeks thereon.
9. The land in dispute is accurately described as: All that piece or parcel of land commonly known and called ‘Gogenu Land’ situates and being in the Ada and Anlo (Awuna) States and bounded as follows:- On the East by Worwoe River Terve Town and Agordoe Town; on the West by Boatri Village; on the North by Wuta family land; on the South by Gbenyigbenyi and Baho Creeks with all the economic trees and creeks thereon namely, (1) Aforhia Creeks (2) Strotor Creeks; etc.”
and the defence as follows:-
“1. The first defendant, Chief Lugu Ahiaku, is a native of Adutor in the Agave District under the Paramountcy of Ada and is the head and representative of the Anyigbe Tribe of Agava in natural succession to his father Kwasi Ahiaku of Adutor.
2. The other defendants herein are also natives of Agave and are agents, labourers and tenants of the first defendant living on the land known as the ‘Gowenu Land’ the property of the Anyigbe Tribe.
3. The land the subject matter of this suit is situate lying and being at Agave and formed boundary with the Avenoa by the Tordjen River and not in the Anlo (Awuna) State.
4. The plaintiffs and defendants herein are privies and respectively in a matter entitled ‘Ahiaku v. Djivoh and Others, Divisional Court, 1906.’
5. The defendants do not admit the allegations contained in paragraphs 4, 5 and 7 of plaintiffs’ Statement of Claim.
6. The defendants have been and are still in undisturbed possession of the land now in dispute within the period of prescription.
7. Save as expressly admitted, all the allegations in the Statement of Claim are denied as fully as if the same were specifically set out herein and traversed seriatim and say that the plaintiffs are not entitled to any of the several reliefs claimed against the defendants.”
At the outset of the hearing before Strother-Stewart, J., a number of documents were put in by consent. The first and most important of these is a Government Survey Map (Exhibit “A”) on which the land in dispute is said in the record to be marked with a blue line round it. This is not quite accurate. The blue line shows the whole land claimed by the plaintiffs-appellants. The Todje River runs through it from north to south dividing it into two parts, of which the western is by far the larger. There is no dispute about the eastern portion, that is admittedly the plaintiffs-appellants’ and their principal town or village named Moyi is situated in this portion in the north eastern area of the land claimed; no is there any suggestion that the defendants-respondents have trespassed on land east of the Todje. The dispute is as to the whole land west of the Todje River enclosed by the blue line and it is a very large area. In addition the following documents were put in—
By the plaintiffs:-
Certified copy of the proceedings of the Provincial Commissioner’s Court held at Keta, on or about the 9th September 1907, in the ease of Ahiaku Djiioh, Asiagbe, Sakpaku and Dei. (Exhibit “B”).
Certified copy of proceedings in the ease of Chief Sakpaku v. Doc Worwui Ndokutse Adzoko Seva Gla, heard on the 28th March, 1904, by the District Commissioner at Keta. (Exhibit “C”)
Certified copy of proceedings in the case of Kwashie Ahiaku v. Givor, heard at Quittah on the 6th January, 1906, by the District Commissioner (Exhibit “D”).
By the defendants: –
Certified copy of a judgment of Divisional Court delivered at Ada on the 20th August, 1906, by His Honour Frans Smith, Acting Chief Justice, in the cases of Ahiaku v. Djivoh, and Ayigbey. (Exhibit “E”).
By the plaintiffs:
Certified copy of order setting aside judgment set out in Exhibit “E”, made by His Honour Sir W. Brandford Griffith, Chief Justice, at Accra, on the 4th February, 1907. (Exhibit “F”).
Certified copy of proceedings in Divisional Court at Keta, before His Honour Sir W. Brandford Griffith, Chief Justice, on the 5th and 9th November, 1908, on appeal from the judgment set out in Exhibit “B”. (Exhibit “G”).
After an exhaustive hearing the learned trial Judge gave judgment as follows after explaining the issues:-
It was clear from the evidence that the great majority of those living on the western side of the River Todji were Aggravie men, and that they had lived there for many generations, and that almost all, if not all; of the villages there today, were founded by Aggravie men. They owned no allegiance to plaintiffs; have consistently refused to pay tolls to plaintiffs, or their ancestors, and as far back as 1904 were vigorously prosecuting the ancestors of plaintiffs, or their people for trespass, if they came across the River Todji on to their land. Since the last case in 1907, up to 1940,— when a case came before the Magistrate’s Court at Keta, which led to the institution of the present case,— plaintiffs have made no active claim to the land on the west side of the River Todji, or tried to enforce payment of tolls.
There is little, if anything, to choose between the traditional histories set up by plaintiffs and defendants. Both sides claim descent from a common ancestor called Awedali. He is said to have been an Aggravie man, and a member of the Anyigbe tribe, to which defendants belong. This is also asserted by Agba, who gave evidence for plaintiffs and appears to be a sort of Quisling working on behalf of plaintiffs.
The cases between ancestors of both plaintiffs and defendants which occurred between 1904 and 1907 are very confusing so far as the localities in which the alleged trespasses are alleged to have taken place are concerned. I do not think they can be considered res judicata far as the present case is concerned. By no stretch of imagination can it be said that the land described in them covers anything like the amount of land claimed in the present case.
In some of the case it is very difficult to identify the land concerned in them at all. A document was put in by defendants, dated the 8th day of August, 1914, which was marked Exhibit ‘T’, and which was proved by the evidence of one David James Garbar, who had drawn it up and who had witnessed the marks of those purporting to execute it.
It will be noted that the date of this document belongs to a period when no litigation was taking place between the parties to the present litigation or their ancestors. I believed the evidence of the said David James Garbar concerning this document. It shows that most, if not all, of the chief men residing on the land, West of the River Todji, now claimed by plaintiffs, were owing allegiance to the Anyigbe tribe, and their Chief Ahiaku. I was much more impressed by the witnesses who gave evidence for the defendants than by those who gave evidence for the plaintiffs.
I am satisfied that the defendants, and their ancestors have been in continuous and effective possession of the land west of the River Todji , for a prolonged period, without paying rent or tribute, and that the present is a case which comes within the principle enunciated in the Bokitsi case (1902) Sarbah’s Funti Law Reports, 154, 160.
Plaintiffs, in order to succeed, must succeed on the strength of their own title, and not on any weakness in the title of those in possession.
“Plaintiffs have failed to convince me that they are entitled to the portion of the land west of the River Todji which they now claim. I think the land and creeks east of the River Todji within the blue line marked on Exhibit ‘A’ belong to plaintiffs. Defendants, however, make no claim to this land, and no trespass on it by them has been proved, or alleged. I accordingly give judgment for defendants in so far as the land west of the River Todji is concerned. As to the land east of the River Todji, as no trespass has been proved to this portion by defendants, and as no claim is now, or appears to have ever been made, to this portion by defendants, I think plaintiff must pay the whole of the costs of defendants in the present case, as defendants have succeeded on the substantial issue.
”I give judgment for defendants accordingly with costs to be taxed”.
We are of opinion that this judgment and the trial generally were unsatisfactory for several reasons.
In the first place as to the plaintiffs-appellants’ claim they could not possibly have succeeded in the Court below on paragraph I without producing a plan showing accurately the boundaries of the land claimed. This is a point to which we are continually drawing attention in this Court, namely that it is quite impossible for a Court to give a declaration of title to an area of land unless the plaintiff can show the Court the exact area of the land claimed, and usually a plan is necessary for the purpose.
The test is could a surveyor show with accuracy the area on a plan from the description given? In the present case obviously he could not.
And as to paragraph II of the claim the plaintiffs-appellants’ counsel admits that the claim for £500 damages is grossly exaggerated, and that he cannot contest the right of the defendants-respondents to occupy and use certain parts of the area (though the plaintiffs-appellants claim ownership); and further that there was no evidence upon which any Court could award damages for trespass by fishing. What the plaintiffs-appellants are really claiming is nominal damages in respect of an alleged trespass committed by the defendants-respondents by the act of removing some beams produced from trees felled by the plaintiffs-appellants from land in the occupation of the plaintiffs-appellants. This act, unimportant in itself, derives significances from the fact that it is locally recognized that the felling of the trees or the claim to the resulting beams constitutes a claim to ownership of the land, as distinct from the mere right to occupy. Hence the importance to the plaintiffs-appellants of establishing that the act constituted a trespass, and obtaining the award of damages, even if only nominal, in respect thereof.
The same point applies to paragraph III of the claim, all the plaintiffs-appellants really want is a perpetual injunction restraining the defendants-respondents from repeating their alleged act of trespass in regard to the beams or the trees from which they are produced.
Then turning to the judgment, we find that there are several matters in which the learned trial Judge has, in our opinion, either failed to give sufficient weight to evidence or has recorded findings which are demonstrably incorrect. The most important matter is in regard to Exhibits “B”, “C”, “D” and “G”. The learned trial Judge found these very confusing as to localities and held that they could not operate as res judicata in the present case. We agree with him that since the area in dispute in those cases are inadequately denned the plaintiffs-appellants’ plea of res judicata must fail. But having so decided the Judge seems to have dismissed them from his mind and to have attached to them no importance on their possible bearing on the main issue, that of ownership. We, on the other hand. attach great importance to them and we are fortified in this view by the importance attached to evidence of a similar nature. by the Privy Council in the case of Kuma v. Kumo (5 W.A.C.A. p. 4). Although the localities with which these earlier cases are concerned may be confusing, the outcome of the cases themselves is clear. They resulted in the success of the plaintiffs-appellants or rather of their privies, and there is no doubt that the decisions covered part of the land now in dispute. If is especially significant that in his defence the defendants-respondents’ counsel pleaded the case of Ahiaku v. Djivoh and others, obviously being under the impression that the decision of that case in his clients’ favour in the Divisional Court was final, whereas that decision was set aside and the case ultimately decided in favour of the plaintiffs-appellants privies.
Then when the learned trial Judge saying: “Both sides claim descent from a common ancestor called Awedali he is admittedly wrong. One of the vital issues between the parties was— Who were the first settlers on the land in dispute, the plaintiffs’ ancestors Agowenu and Adelakpui or the defendants’ ancestor Awedali? The failure to appreciate this issue may well have coloured the whole finding upon the facts.
Turning now to another point. Ground 2 of the Grounds of Appeal reads:-
“That the Court’s decision is based on material inadmissible evidence wrongly received, i.e. Exhibit ‘J’”.
In our opinion this submission is correct and we hold that Exhibit “J” was wrongly admitted in evidence. The foundation necessary to make it admissible was not laid. It appears to be executed by sixteen people some of whom bear the same or similar names to parties or witnesses in the case, but this is not sufficient, it was necessary in order to make the document admissible to lead evidence to show the identity or relationship. The learned trial Judge was obviously considerably influenced by this document, for he says:
“It shows that most, if not all, of the chief men residing on the land west of the River Todji, now claimed by plaintiffs, were owing allegiance to the Anyigbe tribe, and their Chief Ahiaku”.
We are unable to agree with him that the document does, in fact, show this. Earlier in his judgment the sentence appears:
“It was clear from the evidence that the great majority of those living on the western side of the River Todji were Agravie men, and that they had lived there for many generations, and that almost all, if not all, of the villages there today, were founded by Agravie men”.
Although there is evidence that some of those living to the west of the Todji were Agravie men and that some of the villages there were founded by Agravie men, we find nothing in the evidence to justify the words “the great majority” or “almost all, if not all”. In any case, if the finding were justified, it is not inconsistent with the plaintiffs-appellants’ claim to title.
A little further on in the judgment is the passage “As far back as 1904 (they, i.e. Agravie men) were vigorously prosecuting the ancestors of plaintiffs, or their people for trespass, if they came across the River Todji on to their land”. Actually between 1904 and 1907 inclusive the vigorous prosecution consisted of bringing two cases both of which failed, whereas the present first plaintiff’s predecessor successfully sued one of the present defendants’ predecessors. The judgment goes on: “Since the last case in 1907, up to 1940, when a case came before the Magistrate’s Court at Keta, which led to the institution of the present case, plaintiffs have made no active claim to the land on the west side of the River Todji, or tried to enforce payment of tolls”. The point as to non-enforcement of payment of tolls is a good one, but that as to making no active claim is not. The plaintiffs-appellants had got, or thought that they had got, all they wanted in the way of confirmation of their rights in the Courts by the 1904-7 Litigation. Why put forward other claims unless and until their rights were actively challenged, as they allege they have now been by the removal of beams?
For all the reasons given we consider that the trial was so unsatisfactory that the judgment cannot be allowed to stand.
The appeal is, accordingly, allowed, the judgment of the Court below including the order as to costs, is set aside, and it is ordered that if any sum has been paid by way of costs in pursuance of that judgment, it shall be refunded. The case is remitted to the Court below to be re-heard by a different Judge. At the re-hearing hearing the plaintiffs must be required to produce (at their own expense, in the first instance) a plan showing accurately the area to which they are claiming a declaration, and so to amend paragraphs II and III of their claim as to conform with the relief for which they are actually asking (unless, of course, they decide to abandon the claims under paragraphs II and III).
The appellants are awarded costs in this Court assessed at £62 3s 5d. As to costs in the Court below, since the plaintiffs came into Court not properly prepared to prove the main part of their case they are not to be awarded costs of the proceedings at the first trial in any event; but it will be within the discretion of the Judge at the new trial to award the defendants costs of the first trial in the lower Court if he thinks proper and in any case the costs in respect of the future proceedings in the lower Court will be in his discretion.
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