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Stool Lands - Boundaries - Stool
Lands Boundaries Settlement
(Repeal) Act, 2000 (Act 587) -
article 139(1)(c) of the 1992
Constitution -
Exact boundaries handed down
through oral tradition faded
- whether Chief
Justice in exercise of his
powers under article the 1992
Constitution, requested Justice
J. A. Osei “as an Additional
High Court judge to sit and
complete all cases and
proceedings pending eight months
after the coming into force” of
Act 587.
HEADNOTES
Some centuries back, the
predecessors of the peoples of
Akrokerri, Abadwum, Tarkwa and
Kwaman in present day Adansi
area in the Ashanti Region
settled next to one another on
lands that were vacant at the
time It is most likely that with
time the original settlers came
to know their respective
boundaries and respected them.
However, it appears that with
the passage of time, knowledge
of their exact boundaries handed
down through oral tradition
faded and current versions of
where their boundaries lie
tended to conflict. an order
transferring it to the Stool
Lands Boundary Settlement
Commission, hereafter to be
referred to as the Commission,
established under the Stool
Lands Boundaries Settlement
Decree, 1973 (NRCD 172). While
the Commissioner was still
hearing the case the Commission
was dissolved with the passage
of the Stool Lands Boundaries
Settlement (Repeal) Act, 2000
(Act 587) which came into force
on 20th October, 2000
the Chief Justice in exercise of
his powers under article
139(1)(c) of the 1992
Constitution, requested Justice
J. A. Osei “as an Additional
High Court judge to sit and
complete all cases and
proceedings pending eight months
after the coming into force” of
Act 587. Justice J. A. Osei,
sitting in his capacity as a
High Court judge, delivered
judgment in this case
HELD :-
As the notice of appeal was lodged
outside the statutory period we
are devoid of jurisdiction, we
therefore accordingly dismissed
this appeal for want of
jurisdiction.
STATUTES REFERRED TO IN JUDGMENT
Stool Lands Boundaries
Settlement Decree, 1973 (NRCD
172).
Stool Lands Boundaries
Settlement (Repeal) Act, 2000
(Act 587)
High Court (Civil
Procedure) (Amendment) Rules,
1977 (LI 1107)
Court of Appeal Rules,
1997 (C.I. 19) Rule 8(7) .,(4)
Stool Lands Boundaries
Settlement (Amendment) Law, 1986
(P.N.D.C.L. 147)
Public Elections
(Registration of Voters)
Regulations, 2012 (CI 72)
Interpretation Act, 2009
(Act 792). section 10(4)(d)
Limitation Act 1972 (NRCD
54)
CASES REFERRED TO IN JUDGMENT
Attorney-General v Faroe
Atlantic [2005-2006] SCGLR 271
R v Sonje and another
[2005] 4 All ER 321
Abu Ramadan & Nimako v EC
& A-G [2013-2014] 2 SCGLR 1654,
London & Clydeside Estates
Ltd v Aberdeen DC [1979] 3 All
ER 876.
TTM (By his litigation
friend TM) v London Borough of
Hackney and others [2011] EWCA
Civ 4 Case No; C1/2010/1658.
Republic v High Court,
Koforidua; Ex parte ERDC
[2003-2004] SCGLR 21.
Wang v IRC [1995] 1 All ER
367
Togbe Konda and another v
Togbe Dompreh V [1978] 354
Awudome (Tsito) Stool v
Peki Stool [2009] SCGLR 681
Adjeibi-kojo v Bonsie
(1957) 3 WALR 257
BOOKS REFERRED TO IN JUDGMENT
The History of the Gold
Coast and Asante by Rev. Carl
Christian Reindorf
DELIVERING THE LEADING
JUDGMENT
PWAMANG, JSC:-
COUNSEL.
OWUSU-BANA FOR 2ND, 3RD &
4TH CLAIMANTS/APPELLANTS/APPELLANTS
PAUL ADU GYAMFI FOR 1ST CLAIMANT/RESPONDENT/RESPONDENT
J U D G M E N T
PWAMANG, JSC:-
Some centuries back, the
predecessors of the peoples of
Akrokerri, Abadwum, Tarkwa and
Kwaman in present day Adansi
area in the Ashanti Region
settled next to one another on
lands that were vacant at the
time. It is most likely that
with time the original settlers
came to know their respective
boundaries and respected them.
However, it appears that with
the passage of time, knowledge
of their exact boundaries handed
down through oral tradition
faded and current versions of
where their boundaries lie
tended to conflict. That is how
come from about 1950 these
peoples have been disagreeing
among themselves over their
exact boundaries leading to the
filing of a suit by the
Akrokerri Stool against the
Abadwum Stool in the Circuit
Court, Obuasi in 1982. After the
close of pleadings and summons
for directions it became clear
to the Circuit Court judge that
in substance the case was a
boundary dispute so he made an
order transferring it to the
Stool Lands Boundary Settlement
Commission, hereafter to be
referred to as the Commission,
established under the Stool
Lands Boundaries Settlement
Decree, 1973 (NRCD 172).
When proceedings commenced
before the Commission, Akrokerri
Stool became the 1st
claimant and Abadwum Stool
became 2nd claimant.
Subsequently, the Edubiase
Stool, under which Abadwum Stool
serves, joined as 3rd
claimant whilst Tarkwa and
Kwaman Stools were jointly
joined to the claim as 4th
claimant. In accordance with the
procedure of the Commission, the
parties filed their respective
claims and survey instructions.
3rd claimant however
relied on the survey
instructions of 2nd
claimant since their claims were
coterminous. Under directions of
the Stool Lands Boundary
Settlement Commissioner, to be
referred to as the Commissioner,
a survey of the lands was
conducted by Mr C. C Nuque,
licensed surveyor, and he
prepared a composite plan
showing the respective claims of
the parties. The taking of
evidence before the Commissioner
commenced on 21st
July, 1997 at the office of the
National House of Chiefs at
Kumasi.
While the Commissioner was
still hearing the case the
Commission was dissolved with
the passage of the Stool
Lands Boundaries Settlement
(Repeal) Act, 2000 (Act 587)
which came into force on 20th
October, 2000. Act 587
transferred all pending cases
and proceedings to the High
Court but it nevertheless
provided that matters in which
the taking of evidence had
commenced before the
Commissioner shall be continued
with by him and completed not
later eight months. The
Commissioner, Justice John
Augustus Osei, continued with
the hearing of the instant case
and closed the taking of
evidence on 18th
June, 2001, two days to the end
of the eight months grace
period. On that day the
Commissioner ordered the lawyers
of the parties to file their
addresses as soon as practicable
and adjourned the case sine die.
Thereafter, nothing was
done in the claim until 18th
June, 2002 when Justice J. A.
Osei, then former Commissioner,
was given appointment in the
Judicial Service as a Court of
Appeal judge. On 19th
June, 2002 the Chief Justice in
exercise of his powers under
article 139(1)(c) of the 1992
Constitution, requested Justice
J. A. Osei “as an Additional
High Court judge to sit and
complete all cases and
proceedings pending eight months
after the coming into force” of
Act 587. On 13th
December, 2002 Justice J. A.
Osei, sitting in his capacity as
a High Court judge, delivered
judgment in this case in favour
of the 1stclaimant/respondent/respondent,
to be referred to in this
judgment as the respondent. The
2nd, 3rd,
and 4th
claimants/appellants/appellants,
whom we shall call the
appellants, jointly appealed
against the judgment but were
unsuccessful at the Court of
Appeal, hence this appeal.
The appellants filed six
grounds of appeal in this court
but beside ground one which is a
point of law the rest can
conveniently be subsumed under
the omnibus ground. We shall
therefore consider the appeal on
two main grounds which are as
follows; i) the judgment of the
High Court is a nullity since it
was delivered after the lapse of
the eight months provided for in
section 3(2) of Act 587. ii) The
judgment of the Court of Appeal
is against the weight of the
evidence. We shall start with a
discussion of the first ground
but before proceeding, the
distinction ought to be noted
that the judgment was delivered
by the High Court and not the
Commission though the same
person functioned in the
different capacities.
In order that it is not
said that we misunderstood the
case of appellants on this
ground of appeal we shall quote
the main paragraphs of their
submissions on the point. They
stated as follows;
“(v) With the greatest
respect, the Court of Appeal did
not sufficiently consider and
appreciate our submission on S.
3(2) of ACT 587. We never argued
that Act 587 nullified the
authorization by His Lordship
the Chief Justice to the
Commissioner to sit and complete
all cases and proceedings
pending. Our plaint is with
the non-compliance with the
mandatory provision…..We
submit that the words ‘shall be
continued before the
Commissioner and be concluded
by him within a period not
exceeding eight months of the
coming into force of this Act’
need no interpretation than its
ordinary meaning.
(vi) The Gazette
notification of the Act is 20th
October, 2000. This is the date
the Act is or must be deemed to
come into force. We respectfully
submit that the non-compliance
with the mandatory provision of
Section 3(2) of ACT 587 makes
the proceedings and the judgment
delivered on 13th December,
2002 (18 clear months after
the coming into force of the
ACT) NULL and VOID. The instant
case is on all fours with the
case of TOGBE KONDA v TOGBE
DOMPRE [1978] GLR 354, Holding
1. In that case the Court of
Appeal held as follows; ‘that
proceedings pending for judgment
at that date of commencement of
the Decree were caught by
section 4 thereof which
terminated the jurisdiction on
or after that date and any such
proceedings would be in
violation of the mandatory
provision of section 4 of NRCD
172 and are void on that
account’ (at page 357-8).
(vii) In the instant case
before your Lordships, with the
repeal of (NRCD 172) as amended,
all cases and proceedings
pending before the Commissioner
immediately before the coming
into force of Act 587 were to be
transferred to the High Court.
We believe the transfer was
done. The proceedings continued,
but were to be concluded
within a period not exceeding
eight months from the coming
into force of the Act. The
transfer and continuation of
proceedings to conclusion, which
to our mind and understanding
includes delivery of judgment
should not go beyond eight (8)
months…”
To begin with, we have
taken a look at appellants’
grounds of appeal in the Court
of Appeal and do not find any
ground raising error or
misdirection of law and
certainly no reference was made
to Section 3(2) of Act 587. It
is in the written submissions of
appellant at the Court of Appeal
that there is a mention of Rule
2A of the High Court (Civil
Procedure) (Amendment) Rules,
1977 (LI 1107) on time limit
for delivery of judgments by
High Court judges but without
any legal arguments. It was in
their Reply to respondent’s
written submissions that
appellant for the first time
alluded to the point about a
mandatory period of eight months
in Act 587 for concluding
pending proceedings. In those
circumstances the lower court
was entitled under Rule 8(7) of
the Court of Appeal Rules,
1997 (C.I. 19) to have
ignored the references in
appellant’s submissions to
errors of law but they
nevertheless addressed the point
on LI 1107 thoroughly and, in
our view, competently. There was
no distinct ground stated and
argued before the Court of
Appeal based on Section 3(2) of
Act 587 as appellants have done
in this court so it is wrong and
unfair on the part of the same
lawyer to accuse the Court of
Appeal of failing to appreciate
a case he himself failed to
present in accordance with the
rules of court. Rule 8(4) of
C.I. 19 provides that a ground
of appeal alleging error or
misdirection of law must state
clearly the particulars of the
error or misdirection.
From the above discussion
it becomes clear that the ground
of appeal that the trial court’s
judgment is a nullity because it
was delivered without complying
with Section 3(2) of Act 587 is
being properly raised for the
first time in the Supreme Court
as a court of final appeal. The
general rule is that a party is
not permitted to make a new case
on appeal which case he did not
place before the court below for
its consideration. The exception
to this rule is with respect to
challenges to jurisdiction and
points of law that are
fundamental and can be
determined on the basis of the
record before the court without
the need for further evidence.
See; Attorney-General v Faroe
Atlantic [2005-2006] SCGLR 271.
The legal point raised by the
appellants in this new ground of
appeal goes to the very
foundation of the judgment and
since it can be determined on
the basis of the record before
us, we shall consider it.
Unfortunately, lawyer for the
respondent did not respond to
the arguments of appellants on
this ground except to rely on
the judgment of the Court of
Appeal which admittedly did not
address the issue apparently
because it was not properly
raised before them.
Now, returning to the
substance of the arguments of
the appellants, we shall for the
ease of reference set out in the
judgment the provisions of Act
587 which has only three
sections. They are as follows;
“AN ACT to transfer to the High
Court the determination of stool
lands boundaries disputes; to
repeal the Stool Lands
Boundaries Settlement Decree,
1973 (N.R.C.D. 172) as amended
and to provide for related
matters.
1. Jurisdiction of High
Court in stool land boundaries
disputes
From the date of the coming into
force of this Act, the High
Court shall have original
jurisdiction to hear and
determine any dispute arising
from, in respect of or related
to a stool land boundary.
2. Repeal of N.R.C.D.
172
The Stool Lands Boundaries
Settlement Decree, 1973
(N.R.C.D. 172) as amended by the
Stool Lands Boundaries
Settlement (Amendment) Law, 1986
(P.N.D.C.L. 147) is hereby
repealed.
3. Saving and
transitional provisions
(1) Subject to subsection (2)
the cases and proceedings
pending before the Commissioner
immediately before the coming
into force of this Act are by
this Act transferred to the High
Court.
(2) A case before the
Commissioner in which evidence
has been taken shall be
continued before the
Commissioner and be concluded by
the Commissioner within a period
not exceeding eight months from
the date of the coming into
force of this Act.
(3) An appeal pending from a
decision of the Commissioner is
by this Act transferred to the
Court of Appeal.
(4) On the coming into force of
this Act,
(a) the Commissioner may,
subject to article 144 and
section 8 (7) of the
Transitional Provisions of the
Constitution, be appointed to
hold office in the Judiciary;
(b) any other person employed
for the Commission immediately
before the coming into force of
this Act who qualifies and is
suitable may on the advice of
the Judicial Council and in
consultation with the Public
Services Commission, be
appointed by the Chief Justice
to an office in the Judicial
Service.
(5) The assets, rights and
liabilities of the Commissioner
under the repealed enactment and
in existence immediately before
the coming into force of this
Act are hereby transferred to
the Judicial Service.
On the face of Act 587,
Parliament has not stated the
consequences for non-compliance
with the time limit in section
3(2). Nonetheless, the
appellants contend that the
section does not need any
interpretation apart from its
natural meaning which, according
to them, is that non-compliance
naturally leads to a nullity
since the word “shall” was used.
This line of reasoning by
appellants that the use of the
mandatory word "shall" without
more automatically results in
nullification of the judgment
does not impress us. We shall,
with humility, borrow the words
of Lord Steyn in the case of
R v Sonje and another [2005] 4
All ER 321, to explain the
need for the interpretation of
statutes such as Act 587 by the
courts. In that case Lord Steyn
said as follows at page 329 of
the Report;
“A recurrent theme in the
drafting of statutes is that
Parliament casts its commands in
imperative form without
expressly spelling out the
consequences of a failure to
comply. It has been the source
of a great deal of litigation.
In the course of the last 130
years a distinction evolved
between mandatory and directory
requirements. The view was taken
that where the requirement is
mandatory, a failure to comply
with it invalidates the act in
question. Where it is merely
directory, a failure to comply
does not invalidate what
follows.”
Thus, where, as in this
case, parliament sets out in a
statute conditions for the
exercise of legal authority but
does not spell out the legal
consequences of non-compliance
on the rights of persons
affected by the exercise of the
authority, it is for the courts
to decide in a particular case
taking into consideration the
concrete facts what the legal
consequences of non-compliance
shall be. The courts do this by
construing the provision in
question in the context of the
purpose of the enactment as a
whole so as to give effect to
the intention of the legislature
or the rule maker as the case
may be.
In Ghana the preferred
approach to the construction of
statutes is the purposive
interpretation approach. In the
case of Abu Ramadan & Nimako
v EC & A-G [2013-2014] 2 SCGLR
1654, Wood C.J, in support
of this approach stated as
follows at page 1674;
"To arrive at a proper
construction of regulation
1(3)(d) and (e) of the Public
Elections (Registration of
Voters) Regulations, 2012 (CI
72), firmly established
principles of statutory
interpretation require that CI
72 be read as a whole, not
piecemeal, and purposely
construed and the impugned
legislation interpreted in the
context of the other parts of CI
72."
See also; section
10(4)(d) of the Interpretation
Act, 2009 (Act 792).
Among common law judges
the distinction between
mandatory and directory
provisions as a framework for
legal analysis of the
consequences of non-compliance
with statutory provisions has
been replaced since the dictum
of Lord Hailsham of St
Marylebone, LC in the case of
London & Clydeside Estates Ltd v
Aberdeen DC [1979] 3 All ER 876.
In that case Lord Hailsham of
Marylebone LC said as follows at
page 883 of the report;
‘…though language like
“mandatory”, “directory”,
“void”, “voidable”, “nullity”,
and so forth may be helpful in
argument, it may be misleading
in effect if relied on to show
that the courts, in deciding the
consequences of a defect in the
exercise of power, are
necessarily bound to fit the
facts of a particular case and
the developing chain of events
into rigid legal categories or
to stretch or cramp them on a
bed of Procrustes invented by
lawyers for the purpose of
convenient exposition.’
In the House of Lords case
of R v Soneji and another
(supra), Lord Steyn, after
reviewing the case law of
England and Wales, Canada and
Australia on the subject,
stressed this prevailing posture
of the law in the following
words at page 333 of the report;
“Having reviewed the issue
in some detail I am in
respectful agreement with the
Australian High Court that a
rigid mandatory and directory
distinction, and its many
artificial refinements, have
outlived their usefulness.
Instead, as held in A-G’s Ref
(No 3 of 1999), the emphasis
ought to be on the consequences
of non-compliance, and posing
the question whether Parliament
can fairly be taken to have
intended total invalidity. That
is how I would approach what is
ultimately a question of
statutory
construction”
(emphasis supplied).
See also TTM (By his
litigation friend TM) v London
Borough of Hackney and others
[2011] EWCA Civ 4 Case No;
C1/2010/1658.
So the issue that
confronts us in this case is one
of statutory construction to
determine whether parliament
could be said to have intended
that if the Commissioner failed
to conclude any part-heard case
within the eight months stated
in Act 587, admittedly in
imperative language, then the
whole proceedings are vitiated
and legally disappeared such
that they were not capable of
being continued and concluded by
the High Court. But before a
court would hold that
non-compliance with imperative
provision of an enactment shall
result in a nullity, the purpose
of the legislature in making the
provision has to be considered
against the consequences of a
declaration of nullity. See
Republic v High Court,
Koforidua; Ex parte ERDC
[2003-2004] SCGLR 21.
It has to be noted that
section 3(1) of Act 587
transferred all “cases and
proceedings” pending before the
Commission to the High Court to
be continued with by the High
Court as the appellants
themselves have conceded in
their statement of case quoted
above. Section 3(2) made an
exception to the general
transfer by way of transitional
arrangements in respect of the
category of cases where the
taking of evidence had commenced
such that the Commission would
act in place of the High Court
for eight months. Therefore,
after the eight months any
outstanding proceedings stand
transferred to the High Court in
accordance with section 3(1) of
Act 587.The obvious purpose of
Section 3(2) was to smoothen the
transfer to the High Court of
cases in which hearing had
commenced. Its purpose could not
have been to prohibit the High
Court from continuing with such
proceedings; yet that is the
import of the argument of
appellants. To accept the
construction placed on Section
3(2) by the appellants would
have the result that where the
Commission failed to conclude a
part-heard case then the
proceedings were automatically
vitiated such that either a
fresh case would have to be
filed or a trial de novo
resorted to as a matter of
course. Such a construction
would be inimical to the clear
intention of parliament to
provide for the High Court to
continue with pending cases and
proceedings before the
Commission.
We refer to the Privy
Council case of Wang v IRC
[1995] 1 All ER 367 for its
persuasive value. This was a
Hong Kong case that went on
appeal to the Privy Council. At
first instance the High Court
held that the deputy
commissioner for inland revenue
lacked jurisdiction to make two
determinations of tax liability
since he had not done so within
a reasonable time required by
the imperative language of the
Inland Revenue Ordinance of Hong
Kong. The Court of Appeal
reversed the decision and an
appeal to the Privy Council was
dismissed. After reviewing the
case law on the subject, Lord
Slynn of Hadley who delivered
the judgment of the Privy
Council stated as follows at
page 377 of the Report;
'In the present case the
legislature did intend that the
commissioner should make his
determination within a
reasonable time…If the
commissioner failed to act
within a reasonable time he
could be compelled to act by an
order of mandamus. It does not
follow that his jurisdiction to
make a determination disappears
the moment a reasonable time has
lapsed….Their Lordships do not
consider that that is the effect
of a failure to comply with the
obligation to act within a
reasonable time in the present
legislation. Such a result would
not only deprive the government
of revenue, it would also be
unfair to other taxpayers who
need to shoulder the burden of
government expenditure; the
alternative result that (that
the commissioner continues to
have jurisdiction) does not
necessarily involve any real
prejudice for the taxpayer in
question by reason of the
delay.”
To vitiate proceedings
before the Commissioner that
were concluded and only pending
for judgment would mean that the
resources of the state, as well
as the parties, expended in
hearing the case before the
coming into force of Act 587 and
up to eight months thereafter
would have been wasted. The
appellants have not suggested
any policy justification
apparent from Act 587 for such
waste of public resources.
Furthermore, the appellants have
not pointed to any unfair
prejudice they suffered on
account of the continuation of
the case by the High Court after
the eight months period provided
in Act 587. The grounds upon
which the appellants impeached
the judgment of the trial judge
before the Court of Appeal only
challenged the trial judge’s
evaluation of the evidence and
did not include any compliant
against the continuation of the
case by the High Court. The
non-compliance with statutory
time frames were thrown in later
and even then no overreaching
unfair prejudice or injustice
resulting from the continuation
of the case have been alleged or
established.
We have read the case of
Togbe Konda and another v
Togbe Dompreh V [1978] 354
cited by appellants in support
of their submissions but it does
not advance their case. The
statutory provisions construed
in that case are totally
different from section 3(2) of
Act 587. In that case the court
construed section 4(1) and (2)
of NRCD172 which provided as
follows;
"4. (1) The Commissioner shall
have exclusive jurisdiction to
determine the boundaries of
stool lands and to hear and
determine questions or disputes
relating thereto.
(2) Where on or after the
commencement of this Decree any
proceedings are pending or are
brought in any Court and in
either case it appears to the
Court that the situation of any
stool land boundary is the real
issue in dispute before the
Court, the Court shall decline
jurisdiction over the
determination of that issue; but
where it appears to the Court
that the situation of the said
boundary is only incidental to
the determination of the real
issue, the Court shall order a
stay of those proceedings until
the boundary shall have been
finally determined as provided
in this Decree and may also make
such incidental or consequential
orders as the Court may deem
just."
NRCD 172 did not contain
transitional provisions for
courts to complete part-heard
cases but Act 587 did, so the
factual outlines of the two
statutes are completely
different. In the circumstances,
we do not consider the reasoning
of the Court of Appeal in that
case relevant or persuasive
here.
This court had occasion in
the case of Awudome (Tsito)
Stool v Peki Stool [2009] SCGLR
681 to consider section 3(2)
of Act 587. In that case the
appellant complained about the
procedure adopted by the High
Court when it continued with
proceedings that the
Commissioner was unable to
complete within the eight months
stated in the provision. The
plaint of the appellants in this
case is different.
In sum, we conclude that
upon a true and proper
construction of section 3(2) of
Act 587, the judgment delivered
in this case after the lapse of
the eight months period stated
in the Act is not a nullity. The
proceedings before the
Commissioner survived the
statutory time limit and were
properly placed before the High
Court judge and the judgment he
delivered was a valid judgment.
In view of the reasons explained
above, we dismiss ground one of
the appeal.
On the ground of appeal
that the judgment is against the
weight of the evidence, we wish
from the onset to note that we
are here dealing with an appeal
against concurrent findings and
a long line of authorities, too
many to list here, have
established that we are required
to be slow in overturning
concurrent findings. A second
appellate court, such as we in
this case, would set aside
concurrent findings where there
is no evidence on the record
that support the findings or
where the findings are perverse
as being inconsistent with
documentary or admitted evidence
on the record. Furthermore,
where concurrent findings are
based on a wrong proposition of
law, the second appellate court
may set them aside.
We have perused the record
as we are required to do, an
appeal being a rehearing, and
have observed that the courts
below, and especially the Court
of Appeal, based their judgments
on pieces of evidence that were
adduced at the trial and
concluded that the respondent
proved a better claim to the
disputed area which shows that
their boundary is the correct
one. However, the appellants
challenge those findings and
conclusions and in their
statement of case in this court
they have pointed to evidence
led at the trial which, they
contend, ought to have persuaded
the courts below to find in
their favour.
The appellants have
referred to letters exchanged
between them and the respondent
in the 1950s and 1970s in which
each claimed against the other
ownership of the land in the
disputed area and argued that
the respondent's failure to sue
in court until 1982 makes its
action statute barred. In first
place, we endorse the dismissal
of this argument by the Court of
Appeal on the ground that the
statute of limitations was not
pleaded as part of the case of
appellants. Secondly, a simple
answer to this argument is that,
from the record the exchange of
those letters, wherein the
parties made claims and
counterclaims against one
another, ceased in 1974 so it is
from that year that time would
begin to run. By the provisions
of section 10 of the
Limitation Act 1972 (NRCD 54),
the period after which a party
cannot bring an action to
recover land is twelve years
after the cause of action had
accrued. From 1974 to 1982 is
eight years so the Limitations
Act, even if pleaded, would not
have been applicable in this
case.
Appellants next referred
to a mud house built in the
disputed area by the Chief of
Abadwum, Nana Amoabeng upon a
grant by 4th appellants and
contend that the ruins of that
house which were shown to the
surveyor during the survey ought
to have been accepted as part of
activities on the land by them.
On the other hand, the
respondent testified that they
stopped the construction of that
house and sent men to demolish
it and other houses built by
persons claiming through
appellants, because they tried
to build without seeking their
consent. So the case of the
respondent is that the ruins of
the house are as a result of the
demolition but appellants say
the house was left unroofed and
the elements of the weather
caused the deterioration. The
question begging for an answer
is why Nana Amoabeng went to
obtain the land from 4th
Appellant to build a house but
never completed and occupied it
for about 40 years. The courts
below obviously preferred the
version of the respondent and
did not consider this an act of
effective possession by
appellants and it is our view
that they were right.
Additionally, the
appellants urged the evidence of
Pastor Kwamina on us and argued
that his evidence ought to have
been accepted as evidence of
unchallenged possession of the
disputed land by appellants
since they granted him the land
for his church and he had been
on it for about 40 years. Under
cross examination the pastor
admitted that when he started to
build his house he was summoned
by the respondent and he
explained that he was building a
church. If respondent did not
lay claim to the land what would
have been the purpose of
summoning Pastor Kwamina? The
case of the respondents is that
they allowed him to stay on the
land because he said he was
building a church. This does
not pass as an act of
unchallenged possession by the
appellants.
The appellants also placed
considerable reliance on the
folkloric account of the
discovery of palm wine as
recorded by Rev. Carl Christian
Reindorf in his book;“The
History of the Gold Coast and
Asante”, re-published in
1966 by the Ghana Universities
Press. The book refers to an
incident of long ago when the
then Abadwumhene, Akora Frimpong
invited the Akrokerrihene at the
time called Anti Kyei to drink
palm wine with him on a farm of
his hunter on his land and Anti
Kyei died as a result of
drinking too much of the liquor.
The place where Anti Kyei died
is called Asonoso or Esonoso and
is within the disputed area.
Appellants contended that Akora
Frimpong’s hunter’s farm is
where Anti Kyei died so Asonoso
is on Abadwum Stool land. But
respondent’s evidence was that
Anti Kyei being a chief could
not have drank the palm wine in
the bush, and that he travelled
to Abadwum and drank the palm
wine there but it was when he
was returning and was on
Akrokerri land that he suffered
the adverse effects of the palm
wine and the death occurred on
Akrokerri Stool land so Asonoso
is on their land.
This is a classical case
of different versions of
traditional history which tended
to conflict. Rev. C.C. Reindorf
did not state in his book that
he had cross-checked the
folklore and ascertained to any
extent the particular stool land
on which Anti Kyei died. The
approach of the law in choosing
between such conflicting
traditional history is clear.
The conflict has to be resolved
by reference to recent acts of
ownership and possession within
living memory. See;
Adjeibi-kojo v Bonsie (1957) 3
WALR 257. This was the
approach adopted by the High
Court and the Court of Appeal
and we cannot fault them.
For our part, we have
examined closely the evidence of
activities of possession on the
land as shown by the parties to
the surveyor, which he has
indicated in the composite plan,
and we are satisfied on a
balance of probabilities that
the respondent proved a better
claim to the land within the
disputed boundaries than the
appellants. That in effect means
that the boundary as shown by
the respondent was proved on a
balance of probabilities as
against the appellants’.
Consequently, we see no
reason to disturb the concurrent
findings of the courts below. We
find no merits in the appeal and
it is accordingly dismissed.
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
S.
A. B. AKUFFO (MS)
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
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