CHIEF YAMOAH AKWESI II, STOOL HOLDER OF AYINASU

                                                                                  Plaintiff-Appellant­ Respondent-Appellant.

                                                                                   v.

                 CHIEF KWAME PONG PER KWEKU KRAH STOOL HOLDER OF ABRAKASO

                                                                                                Defendant-Respondent­Appellant-Respondent.

pg 117

Claim of Overlordship of lands at Bepoase-Three Disputes- Appeal from Armitage Settlement in 1902-Stool of Abrakaso not a party-Decision by Sir Francis Fuller in 191.5 fixing boundaries-  Parties (who are under Ejisu Stool) in 1930 accepted amicable settlement: land held in common by the Plaintiff and. Defendant and as to proceed~ one third for Ejusu, one third for Plaintiff, one third for Defendant---Ayinasu claim this jurisdiction. settlement binding on all parties-Abrakaso claim.~ (i) Fullerdecision governs and is not inconsistent with Armitage decision, (ii) Ejisu represented Abrakaso at that decision-Armitage and Fuller decisions validated by Cap. 120 in 1929-ln present dispute Native Court of Ejisu based their judgment on the Fuller decision and did not consider settlement of 1930­Asantehene's Court" A " reversed this on basis of 1930 agreement---Chief Commissioner's Court reversed this as counter to Fuller decision and restored Ejisu Court judgment and boundaries demarcated-Assured by Chief Cornmissioner's and Eiisu Courts that alleged arran,qement of 1930 could not over-ride Fuller's 'decision.

    Held: This view incorrec1i, that the boundaries of Bepoase land between the parties shall be thos9 declared by Chief Commissioner's Court, and that the finding of the Asantehene's Court "A" to efficient that land is held in common and proceeds divided vide 1930 settlement is upheld.

  There is no need to set out the facts.

    E. O. Asafu-Adjaye (with him H A H Benjamin) for Appellant.

    A. W. K. Thompson (with hill\ E. A. Bannerman) for Respondent.

   The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

     The plaintiff-appellant is the Stool Holder of Ayinasu (variously spelt N yiasu, Eyinasu, etc.) and the defendant­respondent is the Stool Holder of Abrakaso. The parties are admittedly under the Ejisu Stool.  pg118

The present proceedings commenced in the Native Court of Ejisu where the plaintiff-appellant swore the Great Oath on defendant-respondent claiming "overlordship of the lands at " Bepoase, and having no boundary lines with defendant, but with "Offinsuhene, Agonahene, Ejurahene, and Nkoranzahene." Defendant-respondent swore to the contrary and claimed that he had boundary with the plaintiff-appellant. The land is herein­after referred to as " Bepoase land."

At the beginning of this century the Agonas and Ayinasus disputed as to their boundaries. The two parties came before Captain Armitage and settled their dispute. The terms of settle­ment were embodied in Eixhibit "I" dated 28th June, 1902, which was signed by the Kings of Aguna and Ejisu, the Chiefs of Wimuasi, Kofiasi, Nyiasu and the linguist of the Stool of Ejisu in the presence of Captain Armitage who signed it for the Acting Chief Commissioner, JAshanti. The signatories to "I" agreed that the boundaries between Agona and Ayinasu were as stated therein. This document is hereinafter referred to as the Armitage Decision.

Although Bepoase land fell within the boundary recognised as that of A.yinasu an'd in fact, in part, at all events, forms part of the boundary with Agona the Stool of Abrakaso was not a party to the dispute and did not sign the Armitage Decision.

In 1915 Kweku Krah (Abrakaso) sued Kwamin Kuduo (Ayinasu) in the Chief Commissioner's Court of Ashanti claiming damages for trespass on the land lying between Ayinasu and Wimoasi which Abrakaso alleged was claimed by Ayinasu. The action was tried by Mr (afterwards Sir) Francis Fuller, Chief Commissioner, Ashanti. His notes of the proceedings are scanty. On the 27th May, 1915, he gave a Decision which reads:-

" The Bipoasi lands will remain under Kweku Kra (Abrakaso) and " the people thereon will pay tribute to Kweku Kra but all past tribute "paid to Kwamin Kuduo (Ayinasu) need not be returned to Kweku " Kra.".

After inspecting the land, Sir Francis Fuller gave a further decision on the 18th September, 1915, which reads:- " Land inspected "'The boundary between the parties on the road between the " Kintampo main road and Hipoasi shall be the Dabain Stream until it " runs into the Afram. " Costs given against Kweku Krah  £4."

 The plaintiff-appellant claims that the Armitage Decision recognised that Bepoase land forms part of Ayinasu lands. In the Ejisu Court he said he knew nothing about the dispute that resulted in the Fuller Decision or that such a decision was ever given. His case. was that disputes arose between Ayinasu and Abrakaso and these were settled by the Ejisuhene. The third dispute occurred about 1930 when the late Boaten was on the Stool.

Ejisuhene promised to make amicable settlement between the two as they were brothers. The terms of this alleged settlement were stated by .Akyeame-hene Kobina Yeboah, Head Linguist of Ejisu, in his evidence in chief before the Native Court of Ejisu, to be as follows: -

 The following day, peace was restored between the plaintiff and "defendant and it was arrangpd that from that day, whatever comes . from Bepoase should be shared into three parts, one-third for Ejisu "Stool, one-third for plaintiff and one-third' for defendant. Both " parties agreed to such arrangement, made by Nana Boaten on the "land. Nana Boaten stamped this with a bottle of gin (Paintu) for "the respect given him by the parties. He paid the costs of the " Paintu himself. A year after this arrangement, the ex-Abrakasohene "Kwakn Krah brought the sum of £30 which was divided into three i, parts, which Ejisu Stool took its portion.,The second year also, he " brought £30 and that was ,also shared between Ejisu Stool, plaintiff "and defendant. The third year, there arose a dispute between "Anyinasuhene and his people in which Boachie abdicated from "Anyinasu Stool. During the interregnum of Anyinasu Stool, "Kwal!:u Krah brought the sum of £30 which no part was given to " Anyinasu Stool, in absence of an occupant. This is all I know".

The plaintiff-appellant's case is that this settlement is binding on all parties. Defendant-respondent's case is that the Fuller Deeision governs and that it is not inconsistent with the Armitage Decision. His contention is, in effect, that the Abrakasohene was away at the time the dispute between .Agona and .Ayinasu commenced and that the Ejisuhene represented his Stool when he signed the .Armitage Decision. He appears to contend that Ayinasu defended the proceedings brought by Agona on behalf of the Ayinasu and Abrakaso ..

The Court of first instance, the Native Court of Ejisu, based their judgment for the defendant on the Fuller Decision and failed to consider the plainti:fJ-appellant's contention that the dispute between the parties was finally settled by Ejisuhene Boaten.

The Asantehene's Native Court" A " reversed .this judgment on the ground that it was satisfied that the parties are brothers and hold the disputed land in common. That the Native Court of Ejisu" should have upon the evidence of the Akyeame-hene of " Ejisu, which evidence has been corroborated by the Ankobiahene " of Ejisu, decided that the disputed land is held in common by " the parties and that the proceeds should therefore be divided "between them as was arranged between them by the late " Ejisuhene Kwaku Boaten."

It is significant that the Ankobiahene stated in his evidence before that Court that the present representative of the respondent (Kweku Krah) was on the Abrakaso Stool at the time the agree­ment relied on was made and it was he who took the one-third share due to his Stool, and that Kweku Krah did not give or call any evidence in rebuttal of the very cogent evidence of the Ankobiahene. pg 119

Mr Bewes, who presided over the Chief Commissioner's Court on the 8th January, 1940, decided that the judgment of the" A " Court could not be sustained as it went counter to the Fuller Decision. He accordingly set aside the judgment of the Asantehene's'" A " Court and restored the Ejisu Court judgment. After this judgment Sir Francis Fuller's boundary was demarcated on the land with the result, Mr Bewes states, that neither party was satisfied as that boundary did not go far enough. The r.espondent before the' Chief Commissioner's Court of Ashanti (i.e., the appellant in this Court) applied to the Chief Commissioner of Ashanti to review his judgment and lay down the complete boundary of Bepoase land as between the parties. This the Chief Commissioner of Ashanti's Court (but neither of the Native Courts) had power to do by virtue of section 3 (3) of the Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance (Cap. 120) which was enacted in 1929. Mr Bewes accordingly decided to re-open the case, have a survey made of all the boundaries the parties claimed, and hear any fresh evidence which the parties wished to call and review his judgment as necessary. This he did and in his judgment of the 26th August, 1940, he said:-

" It is undisputed that the Abrakasu people have been in occupation " of some of this land for a long time and they have Sir F. Fuller's " decision in their favour, and I feel my judgment should be influenced " by the facts of their occupation and by this decision of Sir F. Fuller. "I shall therefore lay down boundaries between the two parties in " conform as nearly as possible with the two requirements".

The boundaries laid down gave the defendant-respondent a large portion of the land that he claimed to be Bepoase land and Mr Bewes accordingly set aside the judgment of the " A " Court and ordered the plaintiff-appellant to pay two-thirds of defendant respondent's costs.

It is common ground that the Armitage and the Fuller Decisions were duly validated in accordance with the provisions of Chapter 120, s. 3 (1). That section provides that validated executive decisions are invested with full and definite legal force and effect for all purposes whatsoever as against all persons whom­soever the rights of the Crown alone being reserved.

Chapter 120 was enacted on the 30th April, 1929, so that on that date both of these validated decisions were given the effect of the words just quoted. Assuming that the joint effect of these validated decisions was to award part of the lands that the defendant-respondent claimed to be Bepoase lands to him it seems to be necessary to consider what is the effect of the arrangement made by Ejisuhene Bouten as to the division of the revenue into three parts, an arrangement to which it is alleged that all parties agreed. pg 120

   There has been no finding of fact by either the Ejisu Court or Mr Bewes as to this alleged agreement because both assume'd that such an arrangement could not over-ride the validated decision of Sir F. Fuller. Such assumption is, in our view, incorrect since there was nothing to prevent the parties coming to an amicable and binding agreement to settle the dispute which had arisen between them at that time. That such a dispute should have ariRen is not surprising because on the face of them the Armitage and the Fuller Decisions are irreconcilable, since the effect of the Armitage Decision is to give Bepoase land to Ayinasu, whilst the first decision of Sir F. Fuller declares that they shall remain under Abraka. Further the two Fuller Decisions are a little difficult to understand and reconcile with each other, though when they are carefully examined and understood there is nothing inconsistent between them. The first is declaratory of the owner­ship of all Bepoase land, the second lays down the boundary of part only of that land with Ayinasu lands, it being only that part of the boundary which was at that time in dispute.

The only finding of fact as to this agreement was made by the Asantehene's "A" Court, which confirmed it. We accept this finding of fad and consider that effect must be given to the agreement. At the same time effect must be given to the decision of the Chief Commissioner of Ashanti's Court fixing the boundarie8 of the whole of Bepoase land.

In the result the order of this Court is that the boundaries of Bepoase land as between the parties shall be those declared to be the boundaries between the parties by the Chief Commissioner of Ashanti's Court, and the finding of the Asantehene's Court " A" that Bepoase land is held in common by the parties and that the prDeeeds of the land shall be divided as was arranged between them by the late Ejisuhene Kwaku Boaten is upheld. And for the purpose of avoiding any further dispute, it is ordered that Mr Bewes presiding in the Chief Commissioner of Ashanti's Court shall cause to be marked upon a plan with accuracy and, if necessary, after a further survey, the boundaries fixed by him and shall thereafter sign such plan.

So far as they are in any way inconsistent with this order the judgments of the' lower Courts are set aside. As to costs it is ordered that in all three Courts below each party shall bear his own costs and that any sum paid by one to the other by way of costs shall be refunded. As the appellant has been partially successful in this Court he is awarded half the costs of his appeal to this Court, which half we assess at £39 15s 9d. The costs of carrying out the order of this Court in regard to the making and signing· of a plan, including any costs of .further survey, shall be borne by the parties equally, and the parties are hereby ordered to pay into the Chief Commissioner of Ashanti's Court such sum as the Chief Commissioner of Ashanti may require in respect of such costs.  pg121