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KWABENA AGYAPONG v. YAW MENSAH [05/12/2002] CA 61/98.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA - GHANA

_______________________________

CORAM:    ESSILFIE-BONDZIE, JA (PRESIDING)

ARYEETEY, JA.

OWUSU-ANSAH, JA.

CA 61/98

5TH DECEMBER 2002

KWABENA AGYAPONG                   :           PLAINTIFF/APPELLANT

VRS.

YAW MENSAH                                 :           DEFENDANT/RESPONDENT

_______________________________________________________________________________

 

JUDGMENT

ESSILFIE-BONDZIE, JA:

This is an appeal from the judgment of the  Circuit Court Kumasi dated 9th January 1997, Plaintiff/Appellant (who will hereinafter be referred to simply as the plaintiff) being aggrieved by the judgment delivered in favour of the Defendant/Respondent (who will also be referred to as the Defendant) filed on appeal against the same on the 14th January 1997.

To appreciate the plaintiff's case I will give a resume of the facts. The plaintiff instituted an action, a declaration of title to a plot of land numbered as Plot No. 1A Block J  Kentinkronu in Kumasi, perpetual injunction and 2 million cedis general damages for trespass.

It was the plaintiff's  case that he is  a holder of a deed of assignment executed in or about 1981 between Albert Prempeh Prince and himself in which Prince Albert assigned  his interest in plot No. 1A Block '1' to him. Prince Albert Prempeh had himself since 1976 been granted a lease of this very plot by the Akyempim Stool who is the caretaker  chief of lands in that area including Kentinkronu lands.

On the other land the defendant's case was that he is a member of the ABURAM FAMILY of Kentinkronu and a grand nephew of one Yaw Bonda deceased, Opanin Yaw Bonda in his life time acquired a large tract of land at Kentinkronu by way of purchase from one Oheneba Kwaku Duah, the then Akyempimhene.  He planted cola on it and since his death this land has devolved on his family which had exclusive right to farm on the land since then.  He described the large tract of  land so purchased by Yaw Bonda and gave the  boundary owners.

The defendant also counter-claimed for "a declaration that he is the owner of Plot No. 1A Block  Kentinkronu  Kumasi".

The circuit court dismissed the plaintiff's claim and entered judgment for the defendant on his counter claim.  As said, the plaintiff has appealed to this court on a number  of grounds.  But it is evident from plaintiff's written submission that only the first three of the grounds of appeal were argued.  The rest of the grounds were abandoned.

In this judgment I propose to deal mainly with grounds one of the grounds of appeal namely " The judgment is against the weight of evidence on record".

In paragraph 3, 4, 5 and 6 of the statement of claim the plaintiff pleaded as follows

" (3) Sometime in 1976, one Prince Albert Prempeh of Kumasi acquired a piece of  plot of land  for residential purposes numbered as plot 1A Block J situate at Kentinkronu from the Akyempim stool."

(4) A lease dated 19th of July, 1976 was executed between the aforesaid Akyempim Stool and the aforesaid Prince Albert Prempeh with the Asantehene as the confirming party for a lease hold of 99 years.

(5) With the consent of the  lands commission, the aforesaid Prince Albert Prempeh assigned all his  interests and rights in  aforesaid plot NO. 1A Block J Kentinkronu to the  plaintiff herein.

(6) A Deed of Assignment was executed in or about 13th of May 1981 by the said Prince Albert Prempeh in favour of the plaintiff".

Mr. Owusu Ansah who is a holder of a Power of Attorney from the  plaintiff gave evidence on behalf of the plaintiff.

He testified on oath that Prince Albert Prempeh his brother's grantor was the Akyempimhene and as the caretaker Chief of Kentinkronu lands, sold  the land in dispute to his brother for ¢4,000.00 in 1976 as drinks. Since the root of title of the plaintiff ought to be proved to entitle him to a declaration of title I will write down the evidence of the plaintiff's attorney regarding the acquisition of title to the land verbatim. He said "My brother bought the land in 1976 from Prince Albert Prempeh the caretaker chief of Kentinkronu lands where the land is.  The Plot is numbered No.1J Kentinkronu. It is on Akyempim stool lands.  Prince Albert Prempeh was Akyempimhene who was the Caretaker Chief  of the Land.  My brother paid drinks of ¢4,000.00" (The emphasis is mine).

An examination of the above testimony reveals that there is a material conflict between the plaintiff's evidence in respect of his root of title and the pleadings.

Whereas in the statement of claim the plaintiff is claiming that Prince Albert Prempeh bought the land in dispute in 1976 from the Akyempim Stool, in his evidence the plaintiff is saying that Prince Albert Prempeh sold the land to his brother in his capacity as Akyempimhene.  Nowhere in his pleadings did the plaintiff aver that the Akyempim Stool sold the land in dispute to him.

The indenture (Exhibits B) merely showed that the plaintiff acquired the land from Prince Albert Prempeh in 1979. There was no evidence to establish how Prince Albert Prempeh acquired the land in dispute. As it is patently clear from the pleadings that Prince Albert Prempeh was not the Akyempimhene and merely leased the land in dispute from the Akyempim Stool, why did the plaintiff fail to call any member of the Akyempim Stool or join the stool to substantiate his claim that Prince Albert Prempeh his grantor indeed acquired the plot from the Akyempim Stool.  Again as the plaintiff claimed in his evidence that Prince Albert Prempeh sold the land to him in his  capacity as chief of the Akyempim Stool, he should have called  Prince Albert Prempeh or his representative to corroborate his testimony, especially as there was no evidence that he is dead.  The plaintiff's only witness according to the record of  proceedings was one Mr. Gershon Gomado an official of Lands Department.  He said from the records available at his office the land subject matter in dispute is the subject of assignment between Prince Albert Prempeh and plaintiff in 1981.  That Prince Albert himself had leased the land from the Akyempim Stool in 1976.  He said lands at Kentinkronu have got 3 caretakers chiefs Nsenie, Akyempim and 3rd chief of which he could not mention.

Under cross-examination Mr. Gershon Gomado (Pw1) said  inter alia as follows:—

"Q.   You said there are 3 caretakers for Kentinkronu Stool Land.

A. That is correct.

Q. Can you tell which chiefs takes care of which lands

A. This can be determined by the Kumasi Traditional Council.  They can tell which one are the  true owners.  We only  get to know under which chief a plot of land falls through the  allocation paper.

Q. Do you have an allocation paper in respect of this  land.

A. Yes I do.

Q. You cannot tell from the allocation paper that the person who signs it, is the real owner of the land.

A.  That is correct.  It is the Kumasi Traditional Council's duty".

The above testimony unquestionably discloses that the lands commission secretariat does not determine ownership of lands and the mere tendering of Exhibits B does not  confer title on the plaintiff.  As said since the plaintiff traced his  root of title to the Akyempim stool he should have called the latter as a witness to prove it. This is important especially as his pleadings conflicted with the  evidence he adduced in Court. The plaintiff failed to prove his root of title and I so hold.

The defendant's case was that he is a member of the Asuram family of Kentinkronu and a grand nephew of one Opanin Yaw Bonda now deceased.  The land in dispute forms part of a large tract of land acquired by his grand uncle Yaw Bonda.  That Opanin Yaw Bonda in his lifetime acquired the land at Kentinkronu by way of customary purchase from one Oheneba Kwaku Dua, the then Akyempimhene.  He planted cola on it and since his death this land had devolved on his family which has exclusive right to farm on the land since then.

The defendant called the Kentinkronu Odikro as his witness as Dw1.  He testified as follows "I am also the Odikro of Kentinkronu.  I know the subject matter in dispute. It is part of the stool land of Biramu Division.  The Biramu Division has a tract of land in that area. The subject matter in dispute forms part of it." Under Cross-examination he admitted that  as Odikro of Kentinkronu he is  on the land  of the Akyempim Stool and Biramu lands are also owned by the Akyempimhene.

It is clear from the evidence of Dw1, the Odikro of Kentinkronu that the subject matter in dispute does not fall under his  caretaker ship as Odikro of Kentinkronu, but  belongs to the Biramu Division, which  belongs to the  defendant's family. Dw1 went further in his evidence to say that his stool shared boundary with the large tract of land which belonged to the defendant's family.

The defendant also called one Akwasi Poku (Dw2) who said he is the head of the defendant's  family Dw2 gave the following evidence "I know the subject matter in dispute.  I know one Nana Yaw Bonda (deceased) as my grand father.  I know he acquired a landed property, a house at Kentinkronu and a tract of land on which he planted Cola at Kentinkronu. This land on which he planted Cola is what this family farms on. It has now become necessary to allocate some for  building purposes.  I know he acquired this land by buying same from Oheneba Kwaku Dua the then Akyempimhene".

Dw2 tendered Exhibit '1' as evidence of the transaction between Nana Yaw Bonda and the then Akyempimhene Oheneba Kwaku Dua.  From  the document, the land purchased by Yaw Bonda shares boundaries with the properties of the Odikro of Kentinkronu and one Yaa Gyaose all chiefs.  Exhibit 1 which was  tendered as the defendant's root of title show that Oheneba Kwaku Duah sold the land to Yaw Bonda for £40 in the presence of persons including his own mother, the Odikro of Asokere Mampong the linguist to the Asokere Mampong Stool and Nana Asantehene's standard bearer.  The document which is evidence of a customary sale was prepared in 1907.

On the face of Exhibit 1 it is not clear in what capacity Oheneba Kwaku Duah purported to sell the land. The document does not say whether he was the Akyempimhene at the time  or he was only a subject.  In his testimony on oath said  that the land was sold to his  ancestor Yaw Bonda by Oheneba Kwaku Duah the then Akyempimhene. This piece of evidence as the record shows, was not specifically denied when the plaintiff's counsel cross examined Dw2. What plaintiff's counsel asked under cross-examination was:

"Q. It is never true that the late Akyempimhene sold the land including the subject matter in dispute to late Bonda.

A. It is true that he did sell it.

Q. And it is also not true that the land was sold to your grand father in the presence of witness.

A. It is very true".

From the above cross examination of Dw2, the head of the defendant's family, it is clear that the plaintiff was denying  the fact of  sale and not whether the vendor was the Akyempimhene.

Be that as it may even, if Oheneba Kwaku Dua sold the land to Yaw Bonda in his personal capacity what interest did Yaw Bonda acquire?. If it is assumed that Oheneba, Kwaku Dua was only a subject at the time of the sale, then what he transferred to Yaa Bonda was his interest in the land which at that time was only usufructuary.  The allodial title remained vested in the caretaker stool and that is the Akyempim stool.  So in that case Yaw Bonda and for that matter his family holds the usufructuary interest while the allodial interest resides in the Akyempim Stool.

The acquisition of the usufructuary rights of the family of the defendant is also deducible from the evidence of Dw1 Nana Owusu Afriyie, the Odikro of Kentinkronu who said that the land  in dispute forms part of the  Burima Division of Kentinkronu. As already pointed out the Kentinkronu Odikro shares boundary with the land sold to Yaw Bonda which is the disputed land. The  evidence of Dw1, the Odikro of Kentinkronu on this issue was accepted by the trial judge.

As it was stated by the learned trial judge that, the Law is settled that the Stool holds the absolute title in the land as trustee and on behalf of its subject.  But each individual or family is regarded as the owner of so much of the land as it is able by its industry or by the industry of its ancestors to reduce into possession and control.

It cannot, save with the express consent of the family or individual be disposed  of by the Stool.  The individual or family may assign or dispose of his interest in the land to another subject of the Stool.  There is practically no limitation over his right to alienate that usufructuary title.  So long as he recognised the absolute title of the Stool, that usufructuary title could only be determined on an express abandonment or failure of heirs see THOMPSON VS. MENSAH (1957) 3 W.A.C.R 240. Neither can the Stool divest the usufructuary of his title by alienating it to another without the consent and concurrence of the usufructuary see OHIMEN-ADJEI (1957) 2 W.A.L.R 275.

In this case there is no evidence on record that the defendant's family abandoned the land acquired by Yaw Bonda. The defendant's family still recognizes the Akyempim Stool as the allodial owner. This is borne out by the evidence under cross-examination of Dw2.

"Q. The Site plan covering the entire land at Kentinkronu including the land in dispute was drawn at the instance of the Akyempimhene.

A.  That is correct. But every family has its lands when the family sells it, the Odikro signs and Akyempimhene also signs the allocation:

It is my judgment that the alleged lease hold agreement executed between the Akyempim Stool and Prince Albert Prempeh in 1976 which formed the basis of the assignment of the land in dispute to the plaintiff in this case was void as having  been done without the consent of the defendant's family.

In the light of this and the matters I have discussed above I hold that the judgment of the trial court is amply supported by the  evidence on record.

The decision the learned trial judge arrived at is correct and should not be disturbed. In my opinion the appeal cannot succeed on any of the grounds of appeal and I would dismiss the appeal.

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL

ARYEETEY, JA: 

I agree.

B. T. ARYEETEY

JUSTICE OF APPEAL

OWUSU-ANSAH, JA:

I also agree.

P. K. OWUSU-ANSAH

JUSTICE OF APPEAL

COUNSEL

*Vdm*

 

 

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