This
appeal raises a question as to
the title to certain lands in
the Gold Coast. Colony. The
lands are not tribal or family
lands, and it is common ground
that the title to them must be
determined substantially in
accordance with English law.
The action was in form an action
b~' the respondent, Rebecca
Davis, claiming as owner of the
land an account against the
appellant as caretaker thereof
of the tributes, tolls and rents
collected by him since the year
1911, and an order for payment
of the amounts found due. 'The
appellant defended on the ground
that the respondent was not the
owner of the land, but that the
ownership thereof was vested in
one Sara Quagrainie, the devisee
thereof under the will of her
father, Charles Barnes Acquah,
deceased, for whom and for whose
devisees the appellant was
caretaker. It is common ground
that the question of title is
properly raised and may be
determined in such an action.
The action was commenced on the
13th December, 1923. 'The name
of one J. E. Sampson, a brother
of the respondent, appears on
the writ, which purports to be
in the name of the respondent, .
per J. E. Sampson." Mr.
Sampson is dead. He appears to
have had no personal claim to
the land. The respondent was the
real plaintiff.
The Native Tribunal before whom
the action first came on for
trial decided the question of
title in favour of the
respondent. On appeal to the
Cape Coast Provincial
Commissioner this order
was reversed and the action was
dismissed and the appeal allowed
with costs. 'The
respondent appealed to the
Supreme Court of the Gold Coast
Colony, who on the 9th July,
1927, allowed the appeal with
costs and restored the order of
the Native Tribunal. The present
appeal is brought by leave
granted on the 17th December,
1!J2;.
The parties concerned are all
natives of the Colony.
It will be convenient for the
sake of clearness to state first
the facts supporting the title
of the said Sara Quagrainie, on
whose behalf the appellant is
prosecuting the appeal, and then
to consider the claim set up by
the respondent~.
The lands in question are called
Agissu, and are part of a larger
area called Ekwam bassie,
situate in the Saltpond
District. Ekwambassie includes
also three other parcels of
land, the names of which need
not be mentioned, but may be
referred to as " the three other
parcels." These three other
parcels were formerly the
property of Charles Barnes
Acquah.
The
nature of his title is
immaterial to the present
question.
Prior to the 16th February,
1881, tbe Agissu lands were the
property of one Abina Owoodoowa
(hereinafter referred to as
Abina).
She appears to have been
indebted to one F. A. Parker,
who recovered judgment against
her in an action in the Supreme
Court of the Colony.
On the 16tb February, 1881, the
following certificate was issued
under the hand of the .Judge or
Commissioner, viz.:-
CERTIFICATE OF PURCHASE OF LAND.
THE
SUPREME COURT OF THE GOLD COAST
COLONY.
PROVINCE
A.D. 1881.
Suit No.
Between
FRANCIS A. PARKER ...
Plaintiff
and
ABINA OWOODOOWAH.
Defendant.
THIS IS TO CERTIFY that FRANCIS
A. PARKER . has been declared
the Purchaser of the right,
title and interest of Abina
Owoodoowah in the messuages,
lands and tenements hereinafter
that is to say all that land
situated at Aguisoo called
Aguisoo on the North is lied a
river called Kina on the East
the same river Kina on the West
is bounded with three Coconuts
trees, 1 Boxwood tree in· the
End which said messuages lands
and tenements were sold in
execution of a decree in the
above suit b~' order of this
Court dated 24th day of January
1881.
Dated at Saltpond the 16th day
of February 1881.
(Signed) JOHN SMITH, )
(Signature of Judge or
Commissioner).
Abraham Essell
11.
Rebecca Davis.
On the 19th February, 1881,
Parker executed a conveyance of
the Agissu land to Charles
Barnes Acquah, his heirs,
executors and assigns. The
explanation appears to be that
the debt, the subject of the
action, though nominally owing
to Parker, was really a debt due
to Acquah, Parker being a mere
nominee or trustee for him. This
appears from a document signed
by Abina and printed at page G4
of the record.
The title of Acquah to the
Agissu lands was impeached by or
on behalf of Abina in an action
tried on the 17th August, 1882,
before the then acting Chief
Justice, who decided in favour
of Acquah, though he, for
reasons not now apparent,
considered the transaction by
which l)~rker obtained the land
from Abina to be of a very
doubtful character.
There is no direct evidence of
any further claim of Abina
against Acquah in respect of the
owne;ship of the Agissu lands.
On the other hand, on two
occasions in his lifetime, viz.,
in 1895 and in 1D09, Acquah
successfully maintained actions
for trespass upon the said
lands. Acquah died on the 18th
May, 1909, having by his will
dated the Gth March, 1907,
devised the Agissu lands and the
three other parcels of land to
his wife, Elizabeth Acquah, for
her life, and after her death to
his daughter, Sarah Quagrainie,
absolutely. By a deed of gift
dated the 8th March, 1907, he
gave the same lands to his wife,
but as this deed contains no
words of inheritance, she
presumably took thereundp,r a
life estate only. Thi~ last fact
is not disputed.
The present appellant was
app~inted by Acquah, caretaker
01 the Agissu lands, and this
appointment was· continued after
his death by Elizabeth, his
widow, and after her death by
Sarah Quagrainie. The caretaker
of· land, according to the law
or custom of the Colony, appears
to be not a mere rent collector,
but to be entitled to the
possession or receipt of the
rents and profits of the land in
his own right as against third
persons, though of course, he
has to account to the real
owner.
The appellant as such caretaker
regularly collected tribute from
farmers on the land, both before
and after the death of Acquah.
He has successfully m,aintained
actions for trespass on several
occasions, in one of which a
rival caretaker appointed on
behalf of the respondent was a
defendant. In this action he
obtained a judgment, dated the
27th February, 1914, declaring
that he was entitled to hold,
possess and occupy the Agissu
lands as caretaker against the
respondent. Subsequently by
another order in the same
action, dated the 10th June,
1914, it was declared that,
according to the true
eonstruction of the order of the
27th February, 1914, the
appellant had no authority to
evict any person living or being
on the lands other than persons
living or being on such portion
of the lands as he was entitled
to occupy
Privy Council. 15th Nov.,
1929.
Abraham Essell
v.
Rebecca Davis.
Lord Warrington.
7
1
Privy Council. 15th Nov.,
1929.
Abraham Essell
v.
Rebecca Davis.
Lord Warrington.
Abraham
Es.~ell v. Rebecca Dm,is.
himself. This order appears only
to affect his right as against
certain occupiers to actual
possession, but not his right to
receive tribute. In giving
judgment ,on the 27th February,
1914, t]w Court expressly
declined to make any declaration
as to the right or title of the
present respondent to the Agissu
lands.
So far, from the date of the
t.ransactions in 1881 down to
the present time, the actions of
the parties and the results of
the somewhat extensive
litigation were consistent with
the ownership by Acquah and his
successors' of the Agissu lands.
In 1911, however, during the
trial of an action in which
Elizabeth Acquah was plaintiff
and Rebecca Davis was defendant,
an incident happened which has
proved the occasion for tIre
present trouble. The writ in
that action has not been
produced, but it appears from
the judgment of the Full Court
in the present action that the
action was one in which
Elizabeth Acquah claimed as
against the respondent a
declaration that ~he was
entitled to the three other
parcels of land, as, indeed,
under the will and the
subsequent deed she was, but as
tenant for life only. Whether
this claim extended to t.he
Agissu lands is not proved, but
their Lordships think that it
may be inferred that it did from
what took place at the trial.
The case was heard before
Earnshaw J. on the 28th April,
1911. :Mr. Bucknor was counsel
for the plaintiff, who, it must
be remembered, was only tenant
for life of the Agissu lands. 'fhe
defendants as to the three other
parcels of land relied on a deed
of gift, dated the 20th J une,
18~J8, by Acquah to the
respondent. It would seem that
this was accepted as sufficient
evidence of her title to the
three other parcels of land, and
the judgment declared that she
was so entitled. There appears
in the record in that action the
following passage as quoted by
Hall J. in his judgment in the
present case.
"Mr. llucknor for plaintiff.
" Mr. Brown and Sampson for
defendant.
" Mr. Bucknor for plaintiff said
that on going throug.h documents
he had found a certificate of
purchase showing that Rebecca
Davis had purchased and was the
owner of Agissu land. The
plaintiff Kojo Mbroh possesses
through Rebecca Davis. Mr.
Bucknor therefore asked to
withdraw the claim. Mr. Drown
consented.
"Claim struck ont with costs for
defendants to include yesterday
and to-day.
"Certificate of purchase with
receipt attached was produced on
notice by the plaintiff and was
delivered to tht' defendant
Davis as being hers by the Conrt."
This judgment was afterwards
at.tacked by Sera Quagrainie,
Elizabeth Acquah having died,
but only so far as it related to
the three other parcels of land,
and on the ground that the deed
of gift of 1898 was a fraud on
creditors.
.4br'aham Essell v. Rebecca
Davis.
The documents produced were a
Certificate of Purchase given in
an action in which Acquah was
plaintiff and Abina was
defendant, and a receipt
endorsed thereon.
The certificate is in the
following terms, viz.:-
"THIS IS TO CERTIFY that REBECCA
DAVIS has been declared the
PURCHASER for the sum of TEN
POUNDS TEN SHILLINGS of the
right, title and interest of
ADJNA OWOODOOAH in the messuages
lands and tenements hereinafter
mentioned, that is to say:
" All that piece or parcel of
land situate at Agissoo bounded
on the North by river Kina on
the South by Charles B. Acquah's
land and on the East by Abams
land and river Oki and on the
West by Ocr a and Kobina
Buatin's land.
" Which said messuages land and
tenements were sold in
·execution of a decree in the
above suit by order of this
Court, dated the 3]st day of
October, 1892.
" Dated at Cape Coast the 11th
day of January, 1893.
"HAY]<jS REDWAR,
" (Signature of Judge) Acting."
And it purports to be signed by
the Acting Judge. The endorsed
receipts is as follows:-
" £]0 10s. Od.
" Received from Mrs. REBECCA
DAVIS the sum of Ten Pounds Ten
i:->hiIlings being a piece of
land which she bought in the
satisfaction of the Writ of Fi
Fa issued on the above case.
" Ekualllabasi,
"30th November, 1892.
"(Rigned) C. S. VERTAGE,
" Sheriff Messenger."
The Court in the order now
appealed from have accepted the
view that the lands mentioned in
this certificate were identical
with those mentioned in the
certificate and transfer of
1881, and that, notwithstanding
the last-mentioned certificate
and transfer, the transaction of
1893 effectually vested the
lands in the respondent.
'rhe Provincial Commissioner
avoided the difficulty by
holding that there was no
sufficient evidence of the
identity of the lands described
in the two certificates
respectively. On this point
their Lordships are of opinion
that there are no sufficien l
materials on which to arrive at
a definite conclusion, but the~
arc willing for the purposes of
this judgment to assume that
both certificates related to the
same lands.
The title of Acquah and his
successors under the
transactions of 1881 appears to
be a perfect title not only on
paper, but one that is
confjistent with the subsequent
conr}uct of Acquah and
Privy Council. 15th Nov., 1929.
Abraham Essell
v.
Rebecca Davis.
Lord Warrington.
9
10
Privy
Council. 15th Nov., 1929.
Abraham
Essell
v.
Rebecca Davis.
Lord Warrington.
Abraham Essell v. Rebecca Davis.
others, and it surely would
require a clear case to defeat
this by a subsequent transaction,
not being, of course, a conveyance
by Aequah or someone claiming
under him.
Now. t.his certificate does not
purport to relate to _the sale and
purchase of any right" title or
interest of Acquah in the lands,
and it woulcl indeed be absurd to
sell an interest of the plaintiff
in execut.ion of a judgment
against the defendant. Nor can
their Lordships accept the view
that Acquah can be estopped from
saying that Abina had no interest
to sell. He is not the vendor. It
is quit.e possible, especially
seeing that in 1882 Abina had
disputed the validity of the sale
in 1881, that she, although there
is no direct evidence to that
effect, was again asserting some
claim, and that he himself became
the purchaser, through the
respondent who was his niece as
nominee, of that claim, whatever
it might be, especially as any
money paid to the Sheriff would go
towards discharge of the judgment
debt under the Fi. Fa. Some colour
is given to this possible solution
by the fact that the certificate
and receipt were retained by
Acquah and wereioundj
apparently hy accident, among his
papers two years after his death.
Moreover. the respondent, though
still alive, was not called to
give any account of the alleged
sale in 1893, or to say that she
paid the purchase money, an
omission all the more striking
seeing that her evidence in
support of her claim to the
property given in 1914 was then
described in the judgment of the
Court as being most
unsatisfactory. The receipt is
signed by the Sheriff's messenger
and not by Acquah, and does not
amount to an aclmission by the
latter of any payment hy the
respondent. No evidence was
adduced tu show that., by some
means in the interval between 1881
and 1893, the land had reverted to
Abina ur that the transactiun of
1881 was not a genuine
transaction. Any admis::;ion by
Counsel in the action of 1911
would not bind Sarah Quagrainie,
who was not his client.
Under these circumstances their
Lordships are driven to the
conclusion that the title prior in
point of date must prevail, and
that accordingly the judgment
appealed from should be set aside
and the judgment of tIle
Provincial Commis::;ioner
restored, and that the respondent
should be ordered to pay the costs
in the Courts below. As to the
costs of this appeal: When the
case was called on the appellant
was not represented by Counsel,
for no Counsel had then been
instructed, and but for their
Lordships indulgence in delaying
the hearing to permit of Counsel
-being instructed the appeal would
have been dismissed with costs.
Afterward::; Counsel was
instructed and the case procec(led,
but their Lordships think that,
under the (~ircumstanceti above
mentioned, the appeal ::;hould he
allowed without costs.
They will humbly a<lvise His
Majesty accordingly.
-1 |