Appeal Court 15 May, 1933

Rival claims to compensation under the Public Lands Ordinance between a Stool and two of its subjects-Proof of long and uninterruped user of some Stool land by those subjects-Such user not sufficient by itself to oust the Stool's title.

The appellants, who are subjects of the Labadi Stool, proved that they and their ancestors had been in possession of the land acquired by Government for at least four generations, and that their ancestor who first took possession of the land tound it unoccupied. On these grounds they contended that the land in question had become their private property. They also sought to prove certain acts of ownership on the part of their ancestors and themselves, but failed.

The respondent, on the other hand, proved that the Labadi people had originally acquired a large area of land, including the land in question, by conquest, and that many subjects of the Labadi Stool had settled on the area so acquired. On these grounds he contended that the appellants were merely enjoying the use of Stool land in accordance with native custom, and that their long and uninterrupted user had not ousted the original title of the Stool.

Held, that long and uninterrupted user of land by subjects of Stool is Dot,

in itself, sufficient to oust the title of the Stool.

]. Henley Coussey for the appellants. A. Sawyerr for the Respondent.

The following judgments were delivered :-

KINGDON, C.]. NIGERIA.

This is an appeal from a judgment of the Chief Justice sitting in the Divisional Court at Accra deciding rival claims to the compensation paid by the Government upon the compulsory acquisition of two small plots of land situate near a village named Nkwantanang some ten or eleven miles from Accra on the Dodowah road. The amount paid is only about £18, the subject matter of these proceedings is therefore, on the face of it, of small importance" but great importance is attached to it by both parties because they think that upon the decision in this case rests the title to a very much larger area potentially a matter of dispute between them.

The notice of the intended acquisition by Government under the Public Lands Ordinance is dated the 16th April, 1929.

On the 13th May, 1929, the Manche of Labadi Stool, the respondent in this appeal, put in a claim in respect of the lands described in the notice. The claim alleges" that the Las are the absolute and bona fide owners of the land described in the said notice and are the only people entitled to. any compensation therefor.' ,

C. Boi Owusu G ana. v. Manche of Labadi.

 

 

279

 

.,

 

 

The Manche amplified this by a further claim dated the 6th June, 1929, in which it is alleged that the lands" belong to the La Division and form part of the La Stool lands. " It is submitted that" the La Division is the only body entitled to any compensation that may be awarded in respect of the said lands."

In the meantime, by their solicitor's letter dated the 21st ~~~gdon.

May, 1929, the two appellants, named respectively Christian Boi Owusu and A. A. Dsane, both of Labadi, put in a claim on behalf of themselves and other members of the Nikoichewe family of Labadi, alleging that" they are the owners of the land sought to be acquired" and adding their title to the land is based upon long user and uninterrupted possession of their family from time immemorial." In one of two subsequent letters each dated the 27th August, 1929 specifying the amounts claimed, the solicitor states " There is no plan of my clients' lands but they know the boundaries."

The Nikoichewe family mentioned is the same as the Kotei Amli family and for convenience is referred to by the latter name.

The learned Chief Justice, after an exhaustive hearing, found in favour of the Labadi Manche's claim and gave judgment accordingly. From that judgment the two appellants now appeal, contending that it was against the weight of evidence contrary to native law and custom and contrary to law, and submitting that certain evidence which they tendered was wrongly rejected by the Court below.

The appellants' case is that four generations ago their direct ancestor, one Kotei Amli, a hunter, went with another man named Odoi Ntow to Nkwantanang, that Kotei Amli occupied Nkwanta­nang whilst Odoi Ntow occupied adjacent lands, that at that time these land were unocrupied, were in fact no man's land and could be acquired by occupation by the first comer.

That since this original occupation by Kotei Amli, the village of Nkwantanang and the lands surrounding it, including the two areas now in dispute, have been in the continuous occupation of the appellants' family the members of which have used the land in accordance with the native method of farming, i.e. extensive and not intensive cultivation, the system being to cultivate a patch here and another there and to shift continually from place to place. Evidence of actual use of the two plots acquired can be given, but it is submitted that this is unnecessary if use for the purposes of farming in the manner described can be shown to have been made of an area including the plots acquired. I t is alleged that several other villages were subsequently founded within this area as offshoots of the parent village of Nkwantanang. It is admitted that the appellants live at Labadi and are subjects of the Labadi Stool, but it is contended that this does not preclude them from owning as their private family property land outside the Labadi Stool lands. To support their claim, therefore, they rely upon

 

 

'2 \..

280

C. Boi Owusu & ano.

v.

Manche of Labadi

Kingdon, C.].

 

 

C. Boi OWUSU & ano. v. Manche of Labadi.

present occupation following uninterrupted user for over four generations. As evidencing acts of ownership they rely especially upon two matters, viz. first that they have for many years exacted tolls from others using land in the vicinity of Nkwantanang, and secondly that in the year 1877 the then head of the family, Ashi Kwao, granted to the Basel Mission a plot of land in or near Nkwantanang for the purpose of building a chapel and catechist's house.

The respondent's story is that before Kotei Amli went to Nkwantanang the people of Labadi had acquired a large area, including all the lands claimed by claimants-appellants, by conquest when they drove away the Nungwas who were the former occupants of the area. That any of the people of Labadi could go without payment to the Stool and farm on vacant land within this area, that many did so and a number of villages sprung up of which Nkwantanang is one and is surrounded by others simHarly founded, that by such occupation and farming the people of Labadi do not acquire a title adverse to the Stool; they are merely subjects of the Stool enjoying the use of Stool land in accordance with native custom; that actua]]y the village of Nkwantanang was founded not by Kotei Amli but by the Oshila family and that Kotei Amli's connection with it came about by his marrying a woman of that family named Achoye and going to live there with her. It is not denied that he became head of the family or that the present appellants are his direct descendants. I t is denied that they are entitled to receive the compensation paid, but admitted that they are entitled to receive a share of it upon its distribution in accordance with native law and custom by the Manche who, it is contended, is the proper authority to receive it on behalf of the Labadi people.

Upon these rival contentions it seems to me that the right decision of the case turns upon two points, viz. :-

(1) Are the appellants constructively in occupation of the lands acquired ?

(2) If they are, is that occupation adverse to the Labadi Stool, or is it the occupation by Labadi people of Labadi Stool lands in accordance with custom?

The Chief Justice in the Court below did not deal with the case quite on these lines and did not record a definite finding upon the first of these two questions, though it seems probable from his summing up at the end of his judgment that his answer to it would be in the negative. But it seems to me that a finding upon it is necessary for the decision of the case and in any event must go far to dear the air. Occupation is the foundation of the appellants claim, and if the answer to the question is in the negative, their whole case falls to the ground. But I think the answer given must be in the affirmative. The native system of farming by shifting cultivation is we]] known and was amply proved in this case. It is not disputed that the Nkwantanang people have cultivated patches

•

 

 

e. Boi Owusu & ano. v. Manche of Labadi

at their will over an area embracing the plots acquired, though no definite limits were set to such area. I think, therefore, that they must be said to be constructively in occupation of the whole area upon which native custom recognises they are entitled to farm, and over which they have been farming for four generations.

The second question, then needs to be answered, and the answer of the Court below is clear, viz :-that if there is occupation it is not adverse to the Labadi Stool but is the occupation by Labadi people of Labadi Stool land.

With this finding I am in entire agreement, and I may say at once that· I concur with all the findings of fact of the Court below upon the point. The most fundamental is the acceptance of the respondent's story of the acquisition of the lands in question by conquest so that they became Labadi Stool lands. I twas clearly proved that Labadi lands extend well beyond Nkwantanang. For instance Frafraha is further north than Nkwantanang, and the first claimant's own evidence is " Frafraha is a Labadi village

.... Nkwantanang is in the middle of all these Labadi villages.' ,

The overwhelming weight of evidence supports the finding of the Court below" that at the time that Kotei Amli settled at Nkwantanang the land in the neighbourhood which the claimants described as waste land at that lime was the property of the Stool of Labadi."

I t seems to me that this finding decides the whole case, it means that from the outset the occupation by Kotei Amli was not adverse to the Labadi Stool and there is nothing to suggest that its nature has changed since. I t is this fact which distinguishes the present case from that of Manche Anege Akue v. Manche Kojo Ababio IV, P.e. 1874-1928, 71.

Whilst I agree with the Chief Justice's arguments and conclusions upon the question of whether or not the appellants have acquired a title which the Courts will recognise and uphold on equitable principles, I regard it as unnecessary to go in detail into that aspect of the case since the appellants' counsel h;JS expressly dissociated himself from any claim upon equitable grounds and is content to rest his case upon legal rights assuming a different finding upon the facts.

Numerous authorities consisting of previous decisions of the Courts of this Colony have been cited by him in support of his contentions. But the facts are found by the Court below in the present case are not analogous to the facts in those cases and the decisions in them are not applicable. They need not therefore be considered individually. Mention should, however, be made of the two points upon which the appellants mainly rely as evidence of adverse occupation, viz. :-the alleged collection of tolls and the grant to the Basel Mission.

 

 

281

C. Boi Owusu & ano.

v.

Manche of Labadi

Kingdon, C.].

 

 

1­'-

 

-----------------------~--~'""' ..••• """ •••• ====~-----

--

 

 

282

C. Boi Owusu & ano.

v.

Manche of Labadi

Kingdon, C.].

 

 

C. Boi OwUSU & ano. v. M anche of Labadi.

The learned Chief Justice considered the question of tolls at some length after having had the advantage of seeing the witnesses and so being able to judge of their credibility.

His conclusion is given in these words :-1 am satisfied" in consideration of all the evidence that it is only within the last year or two since this claim was made that an attempt has been made to collect tolls." 1 accept this finding of the Court below, and accordingly hold that the alleged collection of tolls lends no support to the claimants-appellants' contention that it evidences acts of ownership.

1 also attach no importance to the grant to the Basel Mission.

The document put in evidence is obviously one prepared by the Mission, the members of which, it must be remembered, were foreigners seeking to obtain as good a title as they could from the persons they found on the spot. It sets out that "We the under~igned King and Chiefs of Nkwantanang have granted the piece of land south of our town .... to the Basel Mission ..... " It is si~ned by Ashi, Nikoifio and Kefas Kote. No doubt, if he understood the document at all, Ashi Kwao was flattered at being described as " King" and would readily sign any document put before him by the Mission. To my mind the document is no more evidence of ownership than it is evidence that Ashi K wao was a King, which he obviously was not.

As to the fourth ground of appeal, viz. :-that evidence was wrongly rejected by the Court below, the appellants sought to lead evidence to show that some quarter in Labadi owns land not stool land; but the Court refused to allow them to do so on the ground that it was not material as it would not prove that the claiments did the same. It is submitted that the evidence was admissihle under the provisions of subsection '(4) of section 6 of the Public Lands Ordinance which reads " The evidence as to ownership of lands may be such as in proceedings before the assessors to the native chiefs would be admissible and relevant evidence as to such ownership." Whilst it is possible that an assessor to native chiefs might have admitted the evidence tendered, that would not necessarily make it relevant, and 1 think it was for the Court to decide as to its relevancy. It is further urged that in cases relating to pedigree, inheritance, boundaries of lands, etc., much greater latitude is permissible than is allowed by English Law, See Bura and Amonoo t^'• AmPina, Sarbah's Fanti Customary Law at page 214.

But the latitude allowed must be in the discretion of the Court, and when the Court saw the prospect of being plunged into the examination of possibly controversial questions of title to other land 1 think it rightly rejected the evidence. This ground,

therefore, fails.                  '

1 am of opinion that the Court below was right in finding in favour of the La Manche's claim and that the judgment should be upheld.