Appeal Court. 18 Dec.,
1937.
Appeal from Provincial
Commissioner's Court exercising
Appellate Jurisdiction.
Claim for ownership of
land-Undisturbed possession for
a term of years cannot in Native
Law and Custom oust an original
title.
Held: Appeal allowed and
judgment of Native Tribunal
restored.
There is no need to set out the
facts.
K.
A. Bossman
for Appellant.
A. M. Akiwunmi
for Respondent.
The following joint judgment was
delivered :-
KINGDON, C.]., NIGERIA, PETRIDES,
c.J., GOLD COAST, AND YATES, J.
In this case the plaintiff sued
defendant in the Tribunal of the
Omanhene of New Juaben, the writ
being in the following terms :-
.• For that plaintiff on the 6th
day of October, 1936, at Asokore
in the New Juaben District and
within the jurisdiction of this
Tribunal did swear the lawful
and iecognised oath of Omanhene
New Juaben alleging that the
cocoa farm situate lying and
being at Mpeiho New Juaben
District is Plaintiff's bona
fide property and you defendant
responded the oath that the said
farm is defendant's bona fide
property:'
The Tribunal entered judgment
for plaintiff with costs. The
defendant appealed to the Court
of the Provincial Commissioner,
Eastern Province, who allowed
the appeal and set aside the
judgment of the Native Tribunal.
From that decision the plaintiff
h~ appealed to this Court. It is
first to be observed that this
is a dispute as to ownership
only. Possession is not asked
for or given. It may be that
defendant is in possession and
entitled so to remain, or it may
be that each party is entitled
by native custom to a share of
the cocoa crop reaped from the
land. These are questions not in
issue and 'lot decided in the
suit.
The trial Court found, on
evidence which justified the
finding, that the land in
dispute was declared to be
plaintiff's in a case between
the respective parties' privies
some 16 years ago, when a
boundary was fixed, and that is
the basis of their judgment in
plaintiff's favour. This
finding of fact should not have
been, and actually was not,
upset by the Provincial
Commissioner's Court. But that.
Court held that "the principle
of undisturbed possession must
apply," and since the defendant
had been in undisturbed
possession for about 16 years,
declared in defendant's favour.
This point was not considered in
the Native Tribunal for the
obvious reason that it is not
within the scope of Native ideas
that a man should lose his land
by long adverse possession .. As
Watson, J., put it in the case
of
Agyeman
v.
Yarmoah
(1913) D. & F. 1911-16, p. 56, "
It has been held by the Courts
of this Colony that mere use and
occupation for some time cannot
oust an original title, in other
words, there is no such thing in
native customary law as a
prescriptive title.