Appeal Court 24th Feb.1940. Appeal from decision of Chief Commissioner's Court.

Claim to establish right of ownership-Test as laid down in Kodwo Nkoom v. Kwamin Etsiaku (1922) F.C. followed and Appeal dismissed.

Held: The fact that the defendant has spent money on improvement of the land is not sufficient to cause the plaintiff to be estopped from setting up his claim to ownership, unless the expense has been incurred as a result of the belief that defendant was the owner. Such belief can only be inferred from all the circum­stances which are not sufficiently conclusive here and the defendant has consequently failed to establish it.

The facts are sufficiently set out in the judgment.

A. G. Heward-1vlills .for Appellant. T. Hutton-Mills for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J.

This is the second time that this case has come up on appeal before the West African Court of Appeal. On the previous occasion the facts were set out by the Court and so there is no need to recapitulate them now. Upon the hearing of the previous appeal the Court, after quoting from the judgment of Smyly, C.J. in the case of Kodwo Nkoom v. Kwamin Etsiaklt (1922) F.e. '22 p. 1 at p. 5, said ;-

•. We think that in the present case a. similar test should be applied and that, if the Defendant can show that during his 200 years' occupation he has been led to regard the land as his and has spent money in improving it or in defending his rights to it, then the Plaintiff should now be estopped from setting up his claim of ownership, but if the Defendant cannot show this then the Plaintiff is entitled to his declaration. But there is not sufficient data before us to enable US to apply the test since the point was not raised in the Courts below and the only evidence tendered by the Defendant bearing on the question was rejected in the Asantehene's Court •. A "."

and then remitted the case to the Court of the Chief Commissioner to allow each party to call evidence relevant to the test indicated and to give judgment accordingly. After taking the necessary evidence, the Assistant Chief Commissioner presiding over the Chief Commissioner's Court was " unable to find that the application of the Native Customary Law in this case would be contrary to the principles of equity in accordance with the test prescribed", and gave judgment for the Plaintiff with costs. Against that judgment the Defendant now appeals.

It will be recalled that the Plaintiff in this case, is not claiming to recover possession of or to oust the Defendant from, the land, but merely to assert his ultimate right of ownership, and further that it is not disputed that Defendant was originally put on the land by the Plaintiff. The native custom in such a case is clear and undoubted, namely that the ultimate ownership remains in the original owner for all time. The only question is whether in this case the Plaintiff should be estopped from asserting that ownership owing to the Defendant having been led during his 200 years' occupa­tion to regard the land as his and so to spend money in improving it and defending his rights to it. The evidence upon which the Defen­dant relied to establish such estoppel falls into two categories. First the Defendant alleges that he has incurred litigation expenses in four cases in defending his rights to the land. The Assistant Chief Commissioner gave careful" consideration to each of these four cases and was" unable to find that the Defendant has proved that any expense has been incurred in defence of his title to the land now in dispute." We have given full consideration to the arguments adduced by Appellant's Counsel in his attempt to displace this finding, but see no good reason to reverse the Assistant Chief Commissioner's finding of fact upon this point.

Secondly the Defendant alleges that he has spent money in improving the land, in that he has constructed a motor road to Buoyem. Upon this the Assistant Chief Commissioner found

" Such expenditure may legitimately be regarded as having been incurred in improving the value of the land, but since the road was constructed entirely for the benefit of the people occupying the land it cannot be claimed that it Was the landlord's responsibility, or that the Defendant incurred this expense as a result of his belief that he was the owner of the land."

As to this finding, whilst we agree with Appellant's Counsel that the reference to "landlord's responsibility" is out of place, since no question of landlord and tenant or landlord and caretaker arises, we also find ourselves after anxious thought, in agreement with the view that it cannot be said that the Defendant incurred this expense as a result of the belief that he was the owner of the land. Actual proof or disproof of the existence of such a belief would be almost an impossibility. All that can be done is to attempt to draw the correct inference from all the circumstances. Here apart from the question of ownership there was the other obvious incentive to build the road namely that it facilitates the marketing of the occupier's produce. Further the native custom as to the resting place of the ultimate ownership would be well known to the Defendant and his people, but they could not be expected to rely on the English doctrine of estoppel to defeat the undisputed owner­ship of the Plaintiff. According to Jlative ideas there would be no question of the ultimate ownership in the land having passed.

For these reasons the appeal is dismissed with costs assessed at £18 3s.