Courts – Supreme Court – Review
– Applicants having lost on
concurrent findings in High
Court, Court of Appeal and
Supreme Court – Principles for
determining application for
review of Supreme Court
decision.
Legal Practitioners – Counsel –
Forensic language and decorum –
Counsel to employ elegant and
sober language in submissions –
Judges’ errors to be pointed out
with judicial logic and sober
argument, not in language of
inordinate, impassioned anger or
unbridled passion and tantrum.
Law reform – Supreme Court -
Review - Need for less stringent
rules for review.
Courts – Supreme Court – Panel –
Need for all judges to sit on
all matters.
Customary law
– Land
- Declaration of title
–
Burden of proof for declaration
of title higher than possession
or trespass.
Customary law – Land –
Prescription – Whether exists in
customary law.
The
applicants who had lost in
succession in the High Court,
Court of Appeal and the Supreme
Court applied for review of the
decision of the Supreme Court
reported sub nom Odonkor v
Amartei [1992-93] GBR 59.
Held,
The application would be
dismissed for the following
reasons: (1) A review was not
generally an appropriate forum
for revisiting a judgment either
to elaborate on statements made
or to criticise. The only
permissible areas of discussion
related to exceptional
circumstances and interest
resulting in grave miscarriage
of justice and the need for the
reversal of the judgement in the
interest of justice. The court
would not review its decision
where it was sought to re-open
the case and prosecute an appeal
in the guise of a review or
repeat arguments already offered
at the hearing of the appeal or
raise fresh matters that could
have been raised in the appeal
or to interpret previous
decisions of the court with a
view to breaking new grounds.
Kumnipah v Ayirebi [1987-88]
1 GLR 265, SC, Swaniker v
Adotei Twi II [1966] GLR
151, Aschkar v Karam
[1972] 1 GLR 1, CA, A/S
Norway Cement Export Ltd v
Addison [1974] 2 GLR 177,
CA, Fosuhene v Pomaa
[1987-88] 2 GLR 105,
Nartey-Tokoli v Volta Almunium
Co Ltd [1989-90] 2 GLR 513,
Mechanical Lloyd Assembly
Plant Ltd v Nartey
[1987-88] 2 GLR 598, Nasali
v Addy [1987-88] 2
GLR 286, Rep v High Court; Ex
parte Togbe Gobo Darke 17
November 1992, SC applied.
Per
Wuaku JSC.
The grounds for review under the
constitution are wider in scope
than under the Practice
Direction in Kumnipah v
Ayirebi [1987-88] 1 GLR 265.
The Rules Committee ought to
prescribe rules of court that
may be less stringent than the
Practice Direction.
Per
Francois and Wiredu JJSC
contra:
A number of refinements explain
“exceptional circumstances”,
some of which are clearly
unacceptable and unwarranted
extensions to the rule, while
some blur the difference between
appeals and review even to the
extent of challenging the
viability of such a distinction.
Per
Francois JSC.
A review to address a patent
error is an application to the
court to correct its own error.
If an enhanced panel adds its
weight to the minority to
convert a previous minority
judgment to one of majority,
with judges not shifting their
stance on their view of the law,
for instance, the result becomes
unacceptable because the
exercise ceases to be one of a
court correcting its own error
but becomes an appeal with a
differently constituted panel
sitting in judgment over its
peers and postulating better
knowledge of the law. A review
decision that endorses an
original decision of the court
should carry considerable
weight. But one that perpetuates
a narrow division, with actors
swapping sides, lacks the
substance to compel a
classification as precedent.
Indeed it leaves the issue wide
open for a future authoritative
pronouncement. The analysis
anticipates two types of
mischief. Firstly, instead of
concluding cases speedily,
litigants are granted the
indulgence to continue to press
impossible claims in the hope
that an amenable Bench would
overturn a decision. Secondly,
it gives rise to speculation,
that Benches may be packed to
give a desired result.
Per
Wuaku JSC.
As far as possible all Supreme
Court justices must sit on all
matters before the court and
where the panel is equally
divided the case ought to be
considered lost.
(2) Per Francois,
Aikins JJSC. However
emotionally overheated one may
be, members of the legal
fraternity have a duty to
conform to the time-honoured
practice of comporting
themselves always with decorum
and dignity. This must be
reflected in the language they
employ which should be of
measured elegance and sobriety.
Judges do make mistakes; there
is no doctrine of judicial
infallibility but the errors of
judges must be pointed out with
judicial logic and sober
argument. Having failed in the
appeal
itself there
was no need for counsel to use
the review to vent their
feelings in an inordinate and
impassioned anger upon the
learned justices of the court
and counsel on the opposite
side. This practice of some
counsel to fly into unbridled
passion and tantrum at the least
provocation must be strongly
deprecated.
Per
Francois JSCobiter:
There seems to be creeping into
our land law a conception that
all land suits can be won on a
preponderance of evidence. This
perception fails to grasp the
peculiar nature of a declaratory
title to land. For, while
preponderance of evidence may
suffice in a suit for recovery
of possession or trespass
simpliciter, a higher burden
of proof is required to be
discharged for land title suits.
Per
Francois JSC.
A host of
cases establishes that
usucapio does not apply in
our land law.
Per
Hayfron-Benjamin JSC
contra: In Ga customary
law a person may acquire title
to land by prescription.
Ollenu’s learned treatise
Customary Land Law in Ghana
ignored the equally erudite
report of R H J Pogucki on
Land Tenure in Customary Law of
Non-Akan Areas. Pogucki’s
report, coming from a person who
had no ethnic bias but was
minded to produce a professional
report, must be given due
weight.
Cases referred to:
A/S Norway Cement Export Limited
v Addison
[1974] 2 GLR 177, CA.
Abinabina Stool v Nkasawura
Stool
(1956) 1 WALR 247.
Anane v Donkor; Kwarteng v
Donkor (Consolidated).
[1965] GLR 188, SC.
Ansah v Boakye
Written Civil Judgments July -
December 1963 p 5.
Aschkar v Karam
[1972] 1 GLR 1, CA.
Bedu v Agbi
[1972] 2 GLR 238, CA.
Duedu v Yiboe
[1961] GLR 346, [1961] 1 WLR
1040, 105 SJ 566, PC.
Fiscian v Nelson
(1946) 12 WACA 21.
Fofie v Kofi
Written Civil Judgements January
- June 1964 p 134.
Fosuhene v Pomaa
[1987-88] 2 GLR 105, SC.
Jones v Secretary of State
[1972] 1 All ER 145, [1972] AC
944, [1972] 2 WLR 210, 116 Sol
Jo 57, HL, 30 Digest (Reissue)
265.
Khoury v Lawson
23 June 1992, SC.
Kodilinye v Odu
(1935) 2 WACA 366.
Kotei v Asere Stool
[1961] GLR 492, PC.
Kuma v Kuma
(1938) 5 WACA 4, PC.
Kumnipa v Ayirebi
[1987-88] 1 GLR 265, SC.
Kwame v Fio
[1961] GLR 124, SC.
Malm v Lutterodt
[1963] 1 GLR 1, SC.
Mechanical Lloyd Assembly Plant
v Nartey
[1987-88] 2 GLR 598, SC.
Mieh v Asubonteng
[1963] 2 GLR 37, SC.
Miller v Kwayisi
(1930) 1 WACA 7.
Mosi v Bagyina
[1963] 1 GLR 337, SC.
Nartey-Tokoli v Volta Aluninium
Co Limited
[1989-90] 2 GLR 513, SC.
Nasali v Addy
[1987-88] 2 GLR 286, SC.
Odoi v Hammond
[1971] 1 GLR 375, CA.
Practice Direction
[1987-88] 2 GLR 274.
Rafat v Ellis
(1954) 14 WACA 430.
Rep v High Court, ex parte Togbe
Gobo Darke
17 November 1992, Supreme Court,
Ricketts v Addo; Ricketts v
Borbor
(Consolidated) [1975] 2
GLR 158, CA.
Serwah v Kesse
[1960] GLR 227, SC.
Sobanjo v Adesina Oke
(1954) 14 WACA 593.
Suleman v Johnson
(1951) 13 WACA 213.
Summey v Yohonu
[1962] 1 GLR 160, SC.
Swaniker v Adotei Twi II
[1966] GLR 151, SC.
APPLICATION for review of the
judgement of the Supreme Court.
E D Kom,
with him D A Aponsah,
for the applicants.
James Ahenkorah
for the respondent.
FRANCOIS JSC.
The opinion I express on this
application is in two parts.
First, on the merits and second,
the manner in which the
application has been brought.
It is rare in
the history of litigation in
this country to find a case
travelling through three
hierarchies of judicial
authority with all nine Superior
Court judges who have dealt with
it demonstrating singular
unanimity in pronouncing for the
same party. In an imperfect
world, the possibility that all
the nine eminent jurists could
be wrong cannot be ruled out,
even though it may appear an
extremely unlikely event. Moreso
when the matters challenged are
matters of elementary law, not
only residing comfortably in the
bosom of judges, but are the
outpouring of words of wisdom
daily spouted from their lips.
An opportunity, however, is
given once more to redefine the
boundaries of the review
jurisdiction of the Supreme
Court, which should be seized.
One could simply reiterate
definitions set out in
Kumnipa v Ayirebi [1987-88]
1 GLR 265 permitting a
review only on the existence of
exceptional circumstances
necessitating a second look in
the interest of justice or
repeat the direction stated in
Practice Direction
[1987-88] 2 GLR 274.
But since the Kumnipa
case, a number of refinements
have appeared to explain
“exceptional circumstances”,
some of which are clearly
unacceptable and unwarranted
extensions to the rule, while
some blur the difference between
appeals and review even to the
extent of challenging the
viability of such a distinction.
A review is
not generally an appropriate
forum for revisiting a judgment
either to elaborate on
statements made or to criticise
others. The only permissible
area of discussion relates to
the ascertainment of
“exceptional circumstances”
compelling a reversal of the
judgment in the interest of
justice.
The provision in the
constitution allowing for an
enlarged Bench in reviews does
not transform the court into an
appellate Bench. A review to
address a patent or evident
error, is an application to the
court to correct its own error.
Obviously then if an enhanced
panel adds its weight to the
minority to convert a previous
minority judgment to one of
majority, with judges not
shifting their stance on their
view of the law, for instance,
the result becomes unacceptable
because the exercise ceases to
be one of a court correcting its
own error, but becomes an appeal
with a differently constituted
panel sitting in judgment over
its peers and postulating better
knowledge of the law.
In my view, a review decision
that endorses an original
decision of the court should
carry considerable weight. But
one that perpetuates a narrow
division, with actors swapping
sides, lacks the substance to
compel a classification as a
precedent. Indeed it leaves the
issue wide open for a future
authoritative pronouncement.
This analysis anticipates two
possible types of mischief.
Firstly, instead of concluding
cases speedily, litigants are
granted the indulgence to
continue to press impossible
claims in the hope that an
amenable Bench would overturn a
decision; see Jones v
Secretary of State [1972] 1
All ER 145.
Secondly, it
gives rise to speculation, that
Benches may be packed to give a
desired result. All attempts to
nurture the review jurisdiction
to be productive of true justice
and not its subversion, would
then come to nought.
Turning to
the instant application, the
essential matters raised for
determination relate to the
quality of proof, prescriptive
and possessory title and
estoppel.
Each of the
above issues was exhaustively
considered by the respective
tiers of adjudication. We have
been compelled to look at them
again. Arguments have been
churned, rehashed and
regurgitated. The whole process
has become one of appeal and not
a review. If even one is
disinclined to endorse fully the
foundations of other judges on
the issues raised, they fail
either singly or cumulatively to
create exceptional
circumstances. Perhaps I may be
permitted to expand on this.
There seems to be creeping into
our land law, a conception that
all land suits can be won on a
preponderance of evidence. The
Evidence Decree 1975 (NRCD 323)
is urged as the point of
justification. This perception
fails to grasp the peculiar
nature of a declaratory title to
land. For while preponderance of
evidence may suffice in a suit
for recovery of possession or
trespass simpliciter, a
higher burden of proof is
required to be discharged for
land title suits.
For instance, failure to prove a
single boundary of one’s land
may be disastrous in a claim to
title; see Bedu v Agbi
[1972] 2 GLR 238, CA, Sobanjo
v Adesina Oke (1954) 14 WACA
593, Anane v Donkor,
Kwarteng v Donkor
(Consolidated) [1965] GLR
188, SC.
Again proof of root of title is
essential for a declaration even
though on the level of evidence
adduced the plaintiff’s evidence
may appear more preponderant.
See Abinabina Stool v
Nkasawura Stool (1956) 1
WALR 247 at 253, Odoi v
Hammond [1971] 1 GLR 375 at
382, Fofie v Kofi Written
Civil Judgements, January - June
1964 page 134.
There is also the importance in
declaratory suits of proving
satisfactorily the precise area
of the grant, the preponderance
of evidence notwithstanding; see
Kwame v Fio [1961] GLR
124 and Ansah v
Boakyem Written Civil
Judgments, July - December 1963
p 5 at 14 where Akufo-Addo JSC
stated:
“…one of the
essential requisites to be
proved in an allegation of a
grant of land is the precise
area of land alleged to have
been granted.”
Sight must not be lost of the
fact that failure of a
plaintiff’s claim for title can
yield nothing higher than
judgment for defendant. If the
defendant seeks to establish his
own title he must counterclaim
or sue on the judgment obtained.
See Duedu v Yiboe [1961]
GLR 346.
In sum, there
are essential criteria to be
established that transcend mere
preponderance of proof in a
claim of title to land. I
disclaim the honour of
authorship ascribed to me
elsewhere in pointing to this
quality of proof. Though
flattering, it unfortunately
betrays ignorance of land law,
which the cases teach and which
one hopes students of land law
will imbibe and assimilate.
An erroneous concept also seems
to be peddled that the heavy
burden of proof laid down in
Kodilinye v Odu (1935) 2
WACA 366 has been
displaced by Summey v Yohonu
[1962] 1 GLR 160 and
Serwah v Kesse [1960] GLR
227 where reference was made to
the civil burden of
preponderance in
contradistinction to the
criminal onus of “beyond
reasonable doubt”; neither does
the perceptive reasoning of
Amissah JA in Ricketts v
Addo; Ricketts v Borbor
(Consolidated) [1975] 2
GLR 158, setting limits
to the Kodilinye
principle, appear to be well
understood.
These judgments, on a true
reading, merely attempted to
show the extent of the principle
in Kodilinye v Odu.
Fortunately, the leading
judgment in the original appeal
reported in [1992-93] GBR 59
sums up the point adequately in
the statement of
Hayfron-Benjamin JSC at p 72
thus:
“Appellants
had no case and the issue of its
weakness therefore did not
arise.”
I have dwelt at length on the
area of proof, to reject the
view that the measure of proof
in title cases can be based
simply on the preponderance of
evidence.
Turning to prescriptive title,
Kuma v Kuma (1938) 5 WACA
4 and Mieh v Asubonteng
[1963] 2 GLR 37 and a host of
cases, state clearly that
usucapio does not apply to
our land law.
Indeed in Kuma v Kuma the
essential holding was “that long
undisturbed possession of land
either by a trespasser or by a
person with a limited interest
cannot ripen into title to
land”.
But on the defendants own
admission, the plaintiff had
been in possession for over two
and half centuries. Homage or
tribute had ceased to be
exacted. Indeed on the evidence,
the plaintiff’s grant could be
likened to a gift or usufruct
without any commutable burdens
or obligations - the binding
strings of a qualified or
non-absolute grant. In those
circumstances the plaintiff
could utilise the land as he
wished. It had become an
irrevocable possession.
But looking at the other side of
the coin, the beneficiary had
treated the land as his own,
making sales, grants and
settlements without let or
hindrance for over two and half
centuries. There had
consequently been the conferment
of an expanded interest,
analogous to an absolute gift,
which the passage of time had
perpetually sealed; see Kotei
v Asere Stool [1961] GLR
492, Malm v Lutterodt
[1963] 1 GLR 1.
If it is
urged that the applicants still
retain title, it would mean they
had sat by for 250 years while
the respondents developed the
land, without a whimper of
protest. They would have lost
rights, both legal and moral,
for a reinstatement of anything
they previously possessed.
The classic example of what
happens in such a scenario is
the case of Fiscian v Nelson
(1946) 12 WACA 21. There the
court said that although
prescriptive title was unknown
to our customary law, an owner
would not be allowed to claim
land where he had stood by for a
long time while someone else
occupied the land and incurred
pecuniary commitments under the
impression that he was entitled
to the land. See also Miller
v Kwayisi (1930) 1 WACA 7,
Suleman v Johnson
(1951) 13 WACA 213 and
Rafat v Ellis (1954) 14 WACA
430.
In sum, the respondent proved
his title which was not met by
the defence. It was not proof on
the balance of probabilities or
preponderance of evidence but by
the overwhelming discharge of
the onus probandi of the
elements necessary for a
declaration. Most importantly
the exertions of the respondent
in discharging this onus did not
derive their essential force of
validity from any weakness of
the defence.
The second
matter this opinion addresses is
fundamental to the continued
health of our judicial system.
It relates to the insolent
broadside counsel has fired at
judges, whose judicial effort
and pronouncements in this case
have been placed under a
microscope. Unfortunately, the
peculiar lenses of this
instrument have disclosed
alleged forensic aberrations
which have brought on the heads
of the judges the scathing venom
of the applicants’ counsel.
Counsel
complains that the judges did
not have a “full grasp” of
decisions and “put into the
mouths of others what was never
written” or intended to
“obfuscate” what was said; that
judges “intentionally
misappreciated evidence” to
derive from them “wrong
conclusions”; that the judges
meandered and lost sight of
their legal
bearings; their judgments were
not anchored “on sound legal
doctrine, presumptions and
principles” but on “bare
extra-legal sentiments,
non-legal views or beliefs” with
an indulgence in outbursts which
created an “inconsistency of
justice that could but command
the confidence of the ordinarily
reasonable people on the Chorkor
trotro boneshsakers”. The
final effusion condemned judges
for committing “a grave, if not
a disgusting, miscarriage of
justice, notwithstanding their
double or treble concurrent
holdings”.
That counsel is capable of
formulating his contentions in
far less objectionable language
can be seen from his final
summation:
“In this case
there have been far too many
fundamental and basic errors of
law and misdirections that a
grave miscarriage of justice has
been occasioned - which require
correction ex debito
justitiae.”
However
emotionally overheated one may
become, members of the legal
fraternity have a duty to
conform to the time-honoured
practice of comporting
themselves always with decorum
and dignity. This must be
reflected in the language they
employ which should be of
measured elegance and sobriety.
Judges do not
claim they make no mistakes;
there is no doctrine of judicial
infallibility, but our errors
must be pointed out with
judicial logic and sober
argument. In conclusion, I can
only say that the applicants
have not demonstrated any
exceptional circumstances to
entitle them to a reversal of
the previous decision of this
court. I would dismiss the
application.
WUAKU JSC.
I agree. On 9/3/1987 Ebenezer
Tetteh Amartei, Head and lawful
representative of Nii Armah
Sogblah Family of Osu, brought
an action against Nii Ayaa
Odonkor and two other defendants
claiming five million cedis as
general damages severally for
trespass committed upon a tract
of land with the village Haatso
thereon. The disputed land was
delineated on a plan attached to
the writ of summon. The
plaintiff claimed in addition an
injunction etc. The writ of
summons was accompanied with a
four-paragraph statement of
claim detailing the acts of the
trespass complained of. Before
the hearing could be started the
plaintiff died and was
substituted by Benedict
Botchway.
There was the general denial of
the plaintiff’s claim by the
defendants but I think that the
bedrock upon which the
defendants based their defence
was the allegation that (a) the
disputed land was a grant by the
defendants’ ancestor to the
plaintiff’s ancestor (b) an
admission by the plaintiff’s
ancestor of the said grant in a
suit intituled Kwasi Bosompem
v Martey, which came before
Sir W Brandford Griffith Kt CJ
in 1904.
In the
instant case, judgment was given
against the defendants in the
court of first instance and also
on appeal to the Court of
Appeal, and the Supreme Court on
26/5/1992. The application
before us is for the review of
the aforesaid Supreme Court
judgment.
To begin
with, it must be noted that the
Court of Appeal and the Supreme
Court were unanimous in their
judgment. I consider the
statement of case filed by the
applicants on 8/6/1992 as
sufficient for our
consideration. Apart from the
exhibits attached, I consider
the second statement of case
filed on 11/1/1992 unnecessarily
verbose and as an appeal to our
emotions rather than to our
reason.
I am of the
opinion that all the issues that
are being raised in the
statement of case were raised
and argued at the hearing of the
appeal and were all fully
considered in the judgment of
this court dated 26/5/1992 in
which I concurred.
However, I am of the opinion
that the proceedings in
Bosompem v Martey (1904)
are important in the
determination of this
application and I am prepared to
give them a further
consideration.
The proceedings were tendered by
the defendants through the
plaintiff during
cross-examination. The plaintiff
denied a suggestion that the
1904 proceedings were in respect
of Haatso, and said that it was
a boundary dispute. The
plaintiff denied that Tettey
Kwao gave the boundary
description of Haatso in that
case. He admitted that Tetteh
Kwao said they paid tolls in
1904 but said that they had not
paid any tolls since 1904.
The second
defendant gave evidence for the
defendants and called no
witnesses. He said in his
evidence-in-chief that Ashong
Jemawong gave the land to Otuma
Kwaku and boundaries were shown
to him. He continued:
“My family litigated over the
land at Haatso. This was in 1904
and the case was Bosompem v
Martey. The judgment in that
case is exhibit 1.”
Under cross-examination he
stated that all that he knew
about Haatso is based largely on
the 1904 proceedings. He
admitted that that case was a
boundary dispute between the
people of Blekusu and the people
of Accra. He did not know the
extent of the land given to
Haatso people. He did not know
when the last toll was paid and
to whom it was paid nor the
amount paid or the denomination
in which it was paid.
I have dwelt
on exhibit 1 at length because
the defendants have pleaded it
as estoppel by record and raised
it as an issue for trial. The
exhibit is not the judgment in
the matter that went before the
court in 1904. The claim is not
included in the exhibit. Indeed
the exhibit shows that it is a
continuation of proceedings from
another record book and that the
plaintiff in that case had
already given evidence and was
being recalled to continue to
give evidence. It contains other
proceedings.
In my opinion
estoppel by record will not
apply because it is not the same
dispute being litigated twice
over by the same parties. Tettey
Kwao was a stranger to the 1904
suit. The second defendant had
said that Haatso, Agbogba and
all the small villages were
paying tolls for the use of the
land. One Kofi Mensah who gave
evidence immediately after
Tettey Kwao said that Ashong had
a fetish at Onyinasi and that
yearly collections were made
towards the performance of
ceremonies for the fetish. The
plaintiff in the present case
said that the tolls were paid to
the fetish priest one Mensa
Apple after the death of Ashong.
The fetish was used in olden
days to invoke rainfall in the
dry season. This was admitted by
the second defendant.
What I gather
from the applicants’ argument is
that there was a tenancy
agreement between the parties’
ancestors; that was why the
plaintiff’s ancestors paid
tolls. Therefore the plaintiff
is estopped by that tenancy
agreement.
The mere
payment of rent or tolls as in
this case, though may raise a
presumption of tenancy, by
itself does not operate as
estoppel, but only as an
admission which may be
explained. Kofi Mensah’s
evidence in 1904 had explained
why tolls were collected from
all the villages around Haatso.
The instant application was
brought pursuant to Practice
Direction [1987-88] 2 GLR 244
following the decision in
Kumnipah II v Ayirebi
[1987-88] 1 GLR 265 which
provided that the only ground
for review is that the
circumstances are exceptional
and that in the interest of
justice there should be a
review. Following that decision
many applications have been
brought on this sole ground and
various opinions have been
expressed as to what constitutes
circumstances that are
exceptional and that in the
interest of justice there should
be a review.
One has to read Mr S Y
Bimpong-Buta’s article: “The
Supreme Court and the Power of
Review” in the (1989-90) 17
RGL 192 to appreciate the
dilemma which litigants are
bound to face in bringing
applications for review.
Litigants
under article 133 of the 1992
Constitution now have the right
to bring applications for a
review of any decision made or
given by the Supreme Court. In
my opinion the grounds for
applying for a review under the
constitution are wider in scope
than under the Practice
Direction. I would respectfully
suggest that the Rules Committee
set up under article 157
prescribes, as required under
article 133(1), rules of court
that may be less stringent than
the Practice Direction for
applications for review.
By article
138(2) the Supreme Court shall
be duly constituted for its work
by not less than five Supreme
Court justices and by article
133(2) the review justices shall
not be less that seven. I would
again, in all humility, suggest
that as far as possible all the
Supreme Court justices sit on
all matters coming before the
court at all times, and where an
even number of justices sit and
there is an equal division of
opinion, then the matter before
it must be deemed to be lost or
dismissed.
Now to come
back to the application before
us, in my opinion no special
circumstances have been shown
except criticisms of the Supreme
Court judgment with a strong
emotional plea that the court
reverses its judgment and that
judgment be entered for the
applicants.
I think this is a proper case
where the maxim: interest rei
publicae ut sit finis litium
(it concerns the state that
law-suits be not protracted) and
the rule nemo debet bis
vexari pro eadem causa (that
the individual should not be
troubled twice with the same
case) should apply. I would
dismiss the application with
costs.
AMUA-SEKYI JSC.
Inspite of the prolixity of the
written submission filed on
behalf of the applicants, I do
not think that they have
succeeded in making out a case
for a review. Such cases as
Swaniker v Adotei Twi II
[1966] GLR 151, Aschkar v
Karam [1972] 1 GLR 1 and
A/S Norway Cement Export Ltd v
Addison [1974] 2 GLR 177,
show that the power to
review is a very limited one and
that it is not enough to say
that in counsel’s opinion the
judgment was wrong. I agree that
the application be dismissed.
AIKINS JSC.
I agree that the application
should be dismissed. The 66 page
statement of case filed by
Messrs E D Kom and D A Nii
Aponsah, both counsel for the
defendants-applicants, contains
arguments which may aptly be
described as an attempt to
reargue their case. Counsel are
complaining of fundamental and
basic errors which, according to
them, have occasioned grave
miscarriage of justice, but
which, in my view, are not
different in content from the
arguments urged on behalf of the
defendants-appellants in their
original appeal before this
court.
In my
judgment the applicants have not
adverted to any significant,
special or exceptional
circumstances that can move this
court to exercise its review
jurisdiction in their favour. It
must be emphasised that the
circumstances should be shown to
have occasioned or resulted in
grave miscarriage of justice.
Counsel are
just seeking another opportunity
to reopen the same grounds they
urged before this court, and
this should not be countenanced.
The application is therefore
incompetent, and must be
dismissed.
I think it would not be out of
the way if I gave expression to
my view of an unfortunate
situation that is currently
rearing itself up in the courts
of this country, especially in
the Superior Courts, and which
must not be allowed to hold
sway. Counsel for the
respondent, Mr James Ahenkorah,
in his “Answer to Applicants’
Fuller Statement of Case”
has drawn this court’s attention
to an attitude portrayed by the
content of the 66-page
“Fuller Statement of Case”
filed by counsel for the
defendants, Messrs E D Kom and D
A Nii Aponsah, and which must be
condemned because of the most
uncomplimentary language in
which the statement is couched.
Having failed
in the appeal itself there is no
need for counsel to use the
review procedure to vent their
feelings in an inordinate and
impassioned anger upon the
learned justices of this court
and counsel on the opposite
side. This practice of some
counsel, in cases before the
courts, allowing themselves to
fly into unbridled passion and
tantrum at the least provocation
must, in my humble view, be
strongly deprecated.
What really
surprises me is the fact that
the co-author of this particular
document is Mr E D Kom, whom I
have known to be of sober
reflection, a lawyer of fecund
imagination and brilliant
personality and one who, to my
knowledge, is rarely tempted to
fly into unnecessary rage.
Perhaps he may wish to advise
himself. Counsel in review
applications are advised to
concentrate upon scooping out
exceptional circumstances which
should convince this court that
the judgment of the court should
be reversed in the interest of
justice, and should not energise
themselves in a merciless and
unwarranted attack on the
justices who formed the panel of
the appellate court and counsel
on the other side.
As I have
already pointed out there is no
substance in the application; it
deserves to be dismissed and is
hereby dismissed.
WIREDU JSC.
This is an application inviting
us to review our decision given
on 12 January 1992.
By that
decision this court affirmed a
unanimous decision of the Court
of Appeal dated 25/5/91 in
favour of the
plaintiff-respondent to this
application (who shall hereafter
be referred to simply as “the
plaintiff”) which latter court
had also affirmed a decision of
an Accra High Court dated
11/10/90 in favour of the
plaintiff for title to a piece
of land commonly known and
described as Haatso near Accra.
The facts of
the case show that the
plaintiff’s family members, who
are subjects of Osu, have for
over a period of 200 years been
in exclusive occupation of
Haatso in their own right as Osu
subjects and exercised rights
and acts of ownership on the
land without reference to the
defendants-applicants (who will
also hereafter be referred to
simply as ‘the defendants’) or
any other person or authority.
The evidence shows that the
plaintiff’s family in fact
founded the Haatso village as
the original settler.
The plaintiff’s complaint is
that recently the defendants
have been interfering with the
Haatso land by asserting an
adverse claim to same and
authorising and granting lands
to strangers thus disturbing the
quiet and peaceful possession
and enjoyment of the land by the
family. The defendants claim
that the plaintiff’s family is
their licensee. They base their
claim on a so-called admission
of their title by an ancestor of
the plaintiff, one Tetteh Kwao,
in a suit described in the
proceedings as the Bosompem
case.
The defendants are Gas who
belong to the Gbese quarter or
community. No evidence was
provided by the defendants to
show that any of their ancestors
ever settled on any part of the
land known as Haatso. On the
contrary the overwhelming
evidence produced and accepted
at the trial, both documentary
and oral, establish title to the
Haatso land as belonging to Osu
through the original occupation
of the disputed land by the
plaintiff’s family who are Osu
people.
The defendants, on the
evidence, were not shown to know
anything about the disputed
land. On their own showing they
have no knowledge and were shown
not to have had any dealing with
it
until the
trespass that provoked the
instant litigation. They have no
knowledge and have had nothing
to do with it ever since the
plaintiff’s family occupied
same.
After hearing
evidence from the parties and
their witnesses and considering
also the documents including
judgments and proceedings
tendered in evidence, the trial
judge, in what strikes me as a
well-considered judgment found
for the plaintiff. An appeal
from that judgment by the
defendants failed.
A further appeal to this court
also failed and it is the
decision of this court
dismissing their appeal which
has provoked the present
application for review.
Such is the
history of this case which has
gone through all the tiers of
the court of this country with
the defendants losing in all the
courts presided over by nine
superior court judges. This very
fact ought to have given a clear
warning to learned counsel for
the applicants of the uphill
task ahead of him, for him to
hesitate awhile to examine the
case exhaustively before
embarking upon such an exercise
that not only demands serious
research but also calls for a
real appreciation and
understanding of the review he
was seeking. Such
self-examination would thus have
avoided the use of any language
which appeared to be making a
mockery of the decision of the
highest court of the land. It
would also have avoided the
danger of pouring unjustified
scorn and ridicule on the solemn
pronouncements of this court.
With the
above as an introduction, I
shall now attempt a review of
the case law on the
jurisdictional powers of review
of the court and examine the
facts of the present case to see
how far the defendants’ case is
made out.
This court
has on a number of occasions
stressed that the power of
review is exercisable only under
two conditions.
In Fosuhene v Pomaa
[1987-88] 2 GLR 105 Sowah CJ
stated the grounds for a review
as follows: (a) exceptional
circumstances and (b) the
interest of justice. Continuing,
His Lordship commented at p 111:
“The
supporting affidavit never
specified the exceptional
circumstances nor even what the
interest of justice required.
The affidavit which should have
contained facts was mainly
employed for legal argument, the
effect of which is to
demonstrate the erroneous view
which had been taken by the
court. The argument did not
indicate the circumstances in
which the interest of justice
was misapplied; it merely went
on to show that the applicant
had lost…”
In the case of A/S Norway
Cement Export Limited v Addison
[1974] 2 GLR 177, the first
holding in the headnote states:
“There was a
clear distinction between a
review and an appeal. In the
case of a review the same court
would be asked to have a second
look at its own judgment and
correct, if need be, its own
record, but in an appeal a
higher court was often asked to
correct
the error,
real or imagined of a lower
court. Although both could
achieve the same result they
were conceptually different.”
See also Swaniker v Adotei
Twi II [1966] GLR 151. In
Nasali v Addy [1987-88] 2
GLR 286 the Supreme Court, in
dismissing an application for a
review of an earlier split
decision of the court, held that
an applicant who sought, under
the guise of a review, to reopen
an appeal which had been
dismissed would not be
encouraged and that the review
jurisdiction was exercisable in
exceptional circumstances where
the demands of justice made the
exercise extremely necessary to
avoid irreparable damage to the
applicant.
In Nartey-Tokoli v Volta
Aluninium Co Limited
[1989-90] 2 GLR 513 this court,
by a unanimous decision
dismissed an application for
review of its earlier decision
reported in [1989-90] 2 GLR 341.
Francois JSC held at page 516
that:
“Exceptional circumstances have
not been defined and although
the parameters are loosely
indicated, and the categories
have neither been listed nor
closed, they are not wide enough
to admit inappropriate and
undeserving cases.”
Mechanical Lloyd Assembly Plant
v Nartey
[1987-88] 2 GLR 598 is authority
for the proposition that
submissions in support of an
application for review based
substantially on the same
grounds as those advanced during
the appeal in the case resulting
in the decision from which the
review was sought ought not be
entertained and that the review
jurisdiction was to be exercised
at the discretion of the court.
In the
Mechanical LloydsAssembly Plant
case supra Taylor JSC
set down the following as
instances which, in his view,
may justify a claim to
exceptional circumstance: (1)
Matters discovered after
judgment. According to His
Lordship these must be relevant,
exceptional and capable of
tending to show that if they had
been discovered earlier, they
would have influenced the
decision; (2) Cases falling
within the principle enunciated
in Mosi v Bagyina [1963]
1 GLR 337, SC; (3)
Judgments which can legitimately
be said to have been given
per incuriam.
On this latter proposition by
Taylor JSC, I am doubtful
whether the second leg is a
legitimate extension of the law
with regard to the parties’
right to review.
A careful
examination of the law, as
analysed above, on the subject
reveals a cardinal principle of
preserving the effect of the
solemn judgment thus pronounced
save in exceptional
circumstances resulting in grave
injustice. This principle
recognises the finality of the
judgment thus declared.
With the above exercise as
guiding principles I shall now
proceed to examine how far the
present application succeeds on
the facts of this case.
First the
present application is not an
easy one. The applicant has lost
in all the three courts
including the highest court of
the land. It is this latter
court which is now reconstituted
to have a second look at the
present application. It cannot
sit on appeal to rehear the case
afresh in order to correct
errors of law, real or
imaginary. It is disabled to
allow the applicant to repeat
arguments already submitted and
fully dealt with.
The question to answer is: what
are the exceptional
circumstances revealed or
disclosed by the defendants’
complaint to justify a second
look at the decision of this
court from which the present
application has been brought?
The affidavit in support of the
application filed on 8/6/92 does
not depose to facts which show
any exceptional circumstance.
The statement of case has also
failed to show that the decision
of this court has led to a
miscarriage of justice.
Surely, a number of points of
law have been raised in the
statement of case. First, about
the customary law and the common
law relationship between tenant
and landlord and the provisions
of the Evidence Decree 1975
(NRCD 323). The latter was
raised in the appeal and all the
other grounds were argued,
considered and fully dealt with
in the decision from which the
present application has
emanated. These points of law
which have been raised seem to
reopen the case afresh with
serious arguments as if this
court is sitting on appeal. They
are not based on any new facts
discovered. They are also based
on the assumption that the
plaintiff’s family were found on
the evidence to be the
defendants’ tenants.
Every act of the plaintiff’s
family, as established on the
evidence, shows exclusive right
to occupation and possession in
their own rights as subjects of
the Osu in whom title was found
to vest. The dealings of the
plaintiff’s family with the
disputed land, on the
established facts are
inconsistent with the terms
under which the defendants’
claim to have admitted them on
to the disputed land as their
licensees. The defendants were
unable to show that any of their
ancestors ever settled on Haatso
lands. Events and facts within
living memory justified the
plaintiff’s claim.
It is my considered view that
the applicants have not been
able to establish that there
exists any exceptional
circumstance which has resulted
in a miscarriage of justice to
justify my interfering with the
decision of this court by way of
review. The application
therefore fails.
BAMFORD-ADDO JSC.
This is an application by the
defendants-appellants-applicants
asking for a review of the
judgment of this court delivered
on 26 May 1992. The application
was accompanied by no less than
19 grounds and a statement of
case complaining about errors of
law claimed to amount to
exceptional circumstances. The
plaintiff-respondent opposes
this application on the ground
that there are no exceptional
circumstances calling for a
review and that the application
is a naked appeal against this
court’s said judgment.
An
application for review will only
succeed where, as held in a
number of cases, it can be shown
that there are “exceptional
circumstances” resulting in a
grave miscarriage of justice and
requiring a review in the
interest of justice. The review
power of the Supreme Court was
given in article 116(3) of the
1979 Constitution and re-echoed
in article 133 of the 1992
Constitution thus:
“The Supreme Court may review
any decision made or given by it
on such grounds and subject to
such conditions as may be
prescribed by the rules of
court.”
This court has provided the
guide for the exercise of the
review power in the Practice
Direction [1987-88] GLR 274 as
follows:
“In order to
clear any misunderstanding and
prevent the process of review
being abused and turned into
another form of appeal, the
judges decided at a meeting with
the Chief Justice that the
following directions should be
given....
(d) The only ground for review
is that the circumstances are
exceptional and that in the
interest of justice there should
be a review...”
A number of decided cases have
specified possible grounds for
review, what are or are not
exceptional circumstances, and
held that the review
jurisdiction would be exercised
at the discretion of this court,
in special cases upon proof of
the existence of “exceptional
circumstances” resulting in a
grave miscarriage of justice.
The court
would not review its decision
where the review is sought: (a)
to reopen an appeal under the
guise of a review, (b) to repeat
arguments already offered at the
earlier hearing of the appeal,
(c) to raise matters which could
have been raised earlier in the
appeal due to inadvertence, (d)
nor for the purpose of
interpreting the courts previous
decision with a view to breaking
new grounds in the law. These
circumstances which are not
exhaustive, have been held not
to be “exceptional
circumstances” calling for a
review.
The Supreme
Court in Fosuhene v Pomaa
[1987-88] 2 GLR 105 held that it
had jurisdiction to correct its
own errors by way of review but
that “there must be compelling
reasons, and exceptional
circumstances dictated by the
interests of justice”.
In Nasali
v Addy [1987-88] 2 GLR 286
the applicant contended that the
majority ignored relevant
authorities and thus occasioned
a gross miscarriage of justice.
It was held in the head note,
dismissing the application that:
“the Supreme
Court had power to correct its
own errors by way of review.
However an application merely
seeking to reopen the appeal
under the guise of a review
could not be encouraged. The
jurisdiction was exercisable in
exceptional circumstances where
the demands of justice made the
exercise extremely necessary to
avoid irremediable harm to an
applicant. All persons who had
lost a case were likely to
complain of miscarriage of
justice but, in the absence of
exceptional circumstances, such
complaints were a poor
foundation for the exercise of
the review power for it was only
in exceptional circumstances
that the interest rei
publicae ut sit finis litem
principle yielded to the greater
interest of justice.”
Also in Mechanical Lloyd
Assembly Plant v Nartey
[1987-88] 2 GLR 598, the Supreme
Court, in a majority decision
dismissing the application for a
review held that the applicants’
grounds and arguments were the
same as those advanced in the
appeal and that it did not
amount to exceptional
circumstances resulting in grave
miscarriage of justice.
According to Adade JSC in that
case at page 603:
“But the mere
fact that the judgment can be
criticised is no ground for
asking that it should be
reviewed. The review
jurisdiction is a special
jurisdiction, to be exercised in
exceptional circumstances. It is
not an appellate jurisdiction.
It is a kind of jurisdiction
held in reserve, to be prayed in
aid in the exceptional situation
where a fundamental and basic
error may have been
inadvertently committed by the
court, which error must have
occasioned a gross miscarriage
of justice. The review
jurisdiction is not intended as
a try-on by a party after losing
an appeal; nor is it an
automatic next step from an
appeal; neither is it meant to
be resorted to as an emotional
reaction to an unfavourable
judgment.”
This passage seems to me to have
particular relevance to the
present case. I have carefully
examined the grounds and
arguments in support of the
application for a review and in
my opinion they are only further
arguments in support of grounds
already canvassed and lost in
this court on appeal. The
applicants are not entitled to
a further appeal. A review is
different from an appeal and an
allegation of error of law in
the judgment cannot amount to
“exceptional circumstance”.
As Taylor JSC said in
Mechanical Lloyd Assembly Plant
Ltd v Nartey, cited supra:
“Any error of law which is not
of exceptional character and
which does not result in a
miscarriage of justice would not
operate to vacate a judgment of
this Supreme Court.”
I said in the case of Khoury
v Lawson 23 June 1992, SC
that proof of existence of
exceptional circumstance is a
precondition to the assumption
of the review jurisdiction.
I am already
of the view that the applicants
have failed to establish this
precondition. The arguments
proffered are only a repetition
and elaboration of former
arguments and criticisms of the
judgment on appeal in an attempt
to get it reversed by all means.
Applicants challenge almost all
the concurrent findings of three
Superior Courts that dealt with
this case. Counsel has described
them as “fundamental and basic
errors” and “that such grave if
not
disgusting
miscarriage of justice has been
occasioned by previous courts
notwithstanding their double or
treble concurrent findings”.
Concurrent findings of three
Superior Courts, though not
sacrosanct, are entitled to be
viewed with great respect until
a court of review finds them
erroneous. This, the applicants
have, in my view, failed to
establish, since unfortunately
no sufficient grounds exist for
such a review.
There being no “exceptional
circumstances” which have
occasioned any grave miscarriage
of justice, the application is
unmeritorious and is
consequently dismissed.
HAYFRON-BENJAMIN JSC.
I also agree that the
application for review fails.
The applicants are seeking to
reagitate all the grounds upon
which they rested their main
appeal. They have sought by
vitriolic and in some places
patently offensive language to
demonstrate that there are
“fundamental and basic errors
resulting in a grave miscarriage
of justice”.
The
applicants contend that their
arguments advanced in support of
their application reveal an
exceptional circumstance which
“justifies the exercise of [our]
discretion in [their] favour as
the applicants herein”.
The applicants finally contend
that as they:
“… in good faith, believe that a
fundamental and basic error of
law still persists, what else
are we to do or should we do as
humble servants of the law,
except we have recourse to the
last remedy available to us
under the rules of the court.”
It is
therefore clear from the
preamble to the statement of
case that on the pretext that
“fundamental and basic errors of
law still persist” they are
exercising their undoubted
constitutional right to approach
this court for a review of its
judgment.
The grounds upon which this
court will entertain such
applications have been spelt out
in many decisions, some of which
have been discussed in the
opinions of my learned and
respected colleagues.
I have said in Rep v High
Court; Ex parte Togbe Gobo Darke
17 November 1992, Supreme Court,
that when this court is
approached in the exercise of
its jurisdiction to review, the
applicant must show that there
has been inadvertent
misapplication or misstatement
of the law or omission to apply
the law. In the present
application no such ground has
been demonstrated. They have
only sought to furnish this
court with more references to
legal authorities and assume
that the sheer weight of
authorities is sufficient to
induce this court to review its
previous decision.
In their concluding statement
they refer to a woolly
mathematical riddle and say:
“The illustration (the woolly
mathematical riddle) dutifully
argues, with respect, that the
mere multiplication of a
manifest slip does not make it
right, just as ordinary
commonsense warns us daily that
2 or 3 wrongs don’t make one
right. It would be rash,
therefore, Sirs to make a
capital or with great respect, a
fetish of the practice that
requires to be closely watched
that concurrent findings could
not be lightly disturbed. It is
respectfully urged that before
such a cliché or strait-jacket
(sic) could be enforced,
the learning brought to X-ray
the previous decisions must be
wholly putrid, superficial,
naive or otherwise legally and
factually unsupportable in all
its facets.”
I have
referred to this concluding
passage from their statement of
case to illustrate first the
baseness of the language
employed in their submissions
and to demonstrate that the
applicants have misconceived the
true legal requirements for an
application for review. Suffice
to say that by this statement
the applicants have condemned
themselves.
A review is
not concerned with concurrent
findings made in the hierarchy
of our courts. It is clear
therefore that they have
presented their application as
if on a further appeal. Such a
course is not warranted by the
process of review in this court.
They have in their own words
presented “wholly putrid,
superficial, naive or otherwise
legally and factually
unsupportable [arguments].”
I would have
been content to rest my opinion
on the foregoing. But there are
certain important matters on
which I feel the record must be
set straight.
Applicants contend that for the
first time this court has
imported into our jurisprudence
the doctrine of prescriptive
title. Their contention is that
the case of Mieh v Asubonteng
[1963] 2 GLR 37 is authority
for the proposition that “there
is of course no such title known
to the law of Ghana”.
In my respectful opinion they
have quoted the passage out of
context. Holding (3) in Mieh
v Asubonteng supra,
is the proper state of the law.
It reads:
“The principle of acquiring
title to land by prescription,
or usucapio as it is
termed in Roman law, is not
known to customary law;
though a claimant to title to
land may rely on his long
undisturbed possession to the
land in question as further
evidence of proof of his title.”
(Emphasis mine.)
The emphasised part of that
holding is self-explanatory. But
even if the first part of that
holding is the correct
proposition of the law of Ghana,
the historical origins of this
principle based, as they are, on
the works of Sarbah,
Casely-Hayford and Danquah
incline me to the view that it
is too sweeping a legal
proposition. The applicants ask:
“Do not the
courts always apply even Akan
norms to Ga Mashie and other Gas
without such discrimination?”
This may well
be so. But it will be wrong for
a court to apply Akan norms to a
case involving non-Akans merely
for the sake of uniformity in
the development of the law. In a
multi-ethnic nation such as
ours, it is the duty of a court
when presented with evidence
or other
relevant material which proves
or demonstrates beyond any doubt
that a particular ethnic group
has any customary law or
practice which differs from
known Akan laws or norms to
articulate such custom and give
effect to it.
The Mieh case was decided
in 1963 and Ollenu JSC presided
over the court. The applicants
contend that the learned
President of that court, himself
of Ga extraction, had negatived
the concept of prescription in
his learned treatise of land
law.
I find that Ollenu’s learned
treatise ignored the equally
erudite report of R H J Pogucki
on Land Tenure in Customary
Law of Non-Akan Areas. This
report was in existence in 1954
- well before the commencement
of Ollenu’s lectures, which were
compiled into his learned
treatise on land law in Ghana.
Pogucki’s report, coming from a
person who had no ethnic bias
but was minded to produce a
professional report must be
given due weight. In my
respectful opinion, in Ga
customary law a person may
acquire title to land by
prescription.
The principle enunciated in the
Mieh case must of
necessity apply only to the Akan
ethnic groups; not to so hold
would stultify the development
of the law with respect to other
emerging ethnic groups.
Next, the applicants
inferentially urge upon this
court, as it were, to review
Jackson J’s judgment in the
Legon Acquisition case. They
contend that Jackson J’s
findings were in contradiction
of his judgment in the
Kokomlemle Consolidated
Cases. Of course it will be
most improper to review such a
long-standing decision.
The complaint of the applicant
is:
“Surely
Jackson J couldn’t have made the
above findings and then forgot
himself only five months later
in another Enquiry involving the
northerly part of the selfsame
Ga land to give the impression
attributed to him that “the Osu
people came to settle at Haatso
and Papao.”
The applicants are wrong.
Exhibit D is the judgment of
Jackson J in the Legon
Acquisition case. There were
two claims in both of which the
Gbese stool, to which the
applicants belong, featured
prominently. If the applicants
had cared to examine exhibit D,
they would have discovered that
Jackson J was very much aware of
his decision in the
Kokomlemle Consolidated Cases.
The notable references from the
judgment of Jackson J which
demonstrate that the learned
judge had the Kokomlemle
Consolidated Cases at the
back of his mind may be cited in
this opinion. In the first
instance Jackson J wrote as
follows:
“Thus whilst
that letter dated the 30th
November 1901, by its
admissions, does afford some
evidence of the eastern limits
of the land up to which the Osus
were permitted to occupy, it
affords no evidence as to what
was recognised then as being the
boundary between the Akans and
the Labadis and that same lack
of such evidence was apparent to
me in the Kokomlemle cases,
in respect of which I gave
judgment on the 31st May last.
In that judgment I said as
follows:
‘Quite clearly the needs of that
family on its first arrival
would be very small and the
direction in which they would be
permitted to farm would be
indicated in a very rough and
ready manner for them. From the
seashore a general direction to
the north would be indicated and
quite possibly towards Legon was
the direction then indicated.
Legon is situate to the north of
this land between Achimota and
Dodowa.
As the families grew, and
families instead of a family
became the order of the day, the
needs of the community
increased, so would
unappropriated land further
inland and going towards Legon
be gradually occupied by the
increasing members… So much
unappropriated land as the Osus
occupied by the tacit permission
of the Gas - so that land tended
to be regarded as the property
of the Osu Stool. Quite clearly
at any time, had they so desired
the Gas could have said to the
Osus ‘You can farm no further
than this’ and that in effect,
is what has happened in recent
years’…” (Emphasis mine.)
Then again Jackson J wrote in
the same judgment as follows:
“I again
refer to my judgment in the
Kokomlemle cases and where I
analysed the customary law at
length. I have found no
occasion to modify in anyway the
findings at which I then
arrived. There I held that
“sustained occupation coupled
with the erection of buildings
in furtherance of such
occupation of farming creates a
hereditable interest in land or
even continuous farming alone
provided it be sufficiently
localised”. That land not built
upon but farmed by the successor
in title of the founder of such
farm also in similar
circumstances became clothed
with the character of ‘family
lands’ whilst so farmed. And
that ‘land unoccupied by
buildings or farms may be
allotted by the Head or
Caretaker of the Stool to other
members of the Stool either by
way of gift or licence.”
(Emphasis mine.)
Thus the charge that Jackson J
“forgot himself only five months
later” is unfounded. In my
respectful opinion nothing that
Jackson J said in the Legon
Acquisition case was either
inconsistent with or
contradictory of his decision in
the Kokomlemle Consolidated
Cases.
The
applicants admit that they are
Gbese people and also Korle
Webii or Onamroko people. In
their statement of case they
state as follows:
“Since by
convention it was the Korle
Webii or Onamrokor people, of
whom Ashong Jemawong the leader
was head, who were accustomed to
look after Ga lands as
Caretakers on behalf of
themselves and the Gbese and Ga
Stools, the Tettey Kwao family
from Osu had the need to seek
Ashong Jemawong’s permission
both in his capacity as Korle
Priest and as one whose family
operated as hunters and scouts
on those lands on behalf of the
vigilant Ga Paramount and Gbese
Divisional Stools.
In the light
of the foregoing lucid findings
that the land was shared between
Gas and Las before the Osus’
arrival, and that Osu occupied
already-owned Ga land, to hold
that Jackson J held that the
Osus arrived and as of right
planted themselves at Papao and
Haatso lands already owned by
the Gas, would be, to put into
the mouth of Jackson J with
respect, words that he never
wrote down nor intended Sirs,
having due regard to the above
productions of relevant parts of
his Kokomlemle judgment.”
Jackson J, in
the Legon Acquisition had no
difficulty resolving this claim
when he wrote:
“I cannot
find any evidence which I can
accept of any act of any members
of the Onamroko family which
could be described unequivocally
as being the exercise of a right
as owners of the land, and
certainly there is no evidence
that at the taking of the lands
in December 1947 they were in
possession of such lands as
being the owners and it is clear
that whatever rights or
interests in land which they may
have possessed in the past and
which were right as the first
settlers in waste and unoccupied
land, have been lost to other
parties either by express grant
or long acquiescence in the use
and occupation of the land; and
I do dismiss the claims made by
the Gbese Stool and the Onamroko
family.”
The correctness of Jackson J’s
assessment of the evidence
before him is confirmed in the
cross-examination of Evans Okai
Anteh, the 2nd applicant herein
when he stated as follows:-
“Q. Have you heard that the Ga
and Labadi people settled the
Osu people between them from the
coast upwards the Akwapem Hills?
A. Yes.
In my respectful view there is
no merit in this application. I
will therefore dismiss it and
confirm my original opinion.
Application dismissed.
S Kwami Tetteh, Legal
Practitoner. |