Ayitey Cobblah & Anor V. Tettey Gbeke & Ors (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for declaration of title to land—Onus of proof.
The plaintiff when claiming a declaration of title must succeed on the strength of his case.
Appeal from the Supreme Court of the Gold Coast.
Lamptey for Appellant (plaintiff below).
Dove and Oiler:nu for Respondents (defendants below).
The following judgment was delivered:
Harragin, C.J. In this action the plaintiff, as Head of the Korle We Family of Accra ” and representing such family, claims as against the defendants severally and jointly for a declaration of title that the property hereinafter described is the property of the Korle We Family of Accra who hold it for themselves, the Ga Mantse and the Gbese Mantse “.
The land is clearly described in the writ and the plan has been put into evidence. The plaintiff further claims damages for trespass and for a perpetual injunction against the defendants.
In the course of the case, at the request of Counsel for the plaintiff, the writ of summons was amended by deleting the words ” belongs to the Korle We Family of Accra ” and substituting therefor the words ” is the property of the Korle We Family of Accra who hold it also for themselves, the Ga Mantse and the Gbese Mantse ” and to amend the Statement of Claim (a) by substituting in paragraph 1 for ” who hold it for the Ga people ” the words ” who hold it for themselves, the Ga Mantse and the Gbese Mantse ” and (b) by substituting for paragraph (a) the following: ” (a) a declaration that the said lands are the property of the Korle We Family of Accra who hold it for themselves, the Ga Mantse and the Gbese Mantse “.
This amendment is not without interest in view of the somewhat peculiar manner in which the plaintiff himself alleges that he came into possession of the property and also indicates his uncertainty as to the terms and the conditions under which the property came into his possession.
Pleadings were ordered which need not be set out at length save to point out that the defendants in their second paragraph put the plaintiff to strict proof of their title, in addition to claiming title themselves, by virtue of a gift to them 110 years ago by the Ga Mantse Nil Tackle Komey and the then Korle Priest Numa Ayitey Buafuor for services rendered.
In order to understand the evidence, it must be realised that the Korle Webii belong to the Gbese Division of the Ga State and their interests are in other respects identified with the Ga State.
The Korle Webii hold a peculiar position amongst the Accra (Ga) people because they are the traditional owners of the Korle Fetish, one of the most
important Accra deities. The Wulomo is the head airiest) of the Korle Webii.
The next point to keep clearly before one is that, although at first sight the plaintiff might appear –by his writ to be repretenting the Ga Mantse and the Gbese Mantse, this is far from the fact, as it was openly stated and appears in
judgment that as soon as this case is finished, it is more than probable (assuming that the plaintiffs are successful) that the Ga Mantse and the Gbese Mantse will issue a writ against them with regard to these same lands. It would, therefore, appear that there are three claimants for the land in question, the defendants, the Ga Mantse and the Gbese Mantse and the plaintiffs all of whom claim title to the land, though the last named allege that they hold the land ” for themselves, the Ga Mantse and the Gbese Mantse ” atnd that was the tangled skein the trial Judge sought to unravel in a case that lasted over two months during which time an enormdus amount of evidence was led on each side as to tradition, dealings with the land, occupation, etc.
The traditional story of the plaintiffs is fantastic, romantic and entertaining and is to the effect that a woman belonging to the Korle Webii family somewhere in the latter part of the seventeenth century found herself on the land where Accra now stands. Whilst walking near to the lagoon she found some sacred pots whereupon she became possessed by the Korle spirit who told her and by her mouth, the Korle people, that her family group should henceforth worship the Korle spirit and should hold all the lands to the east and north of the lagoon for the deity; the land at present in dispute being included in this area.
This may, at first sight, appear a very simple method of acquiring a large area of land and one which in later years was to become of great value. There is, however, no doubt that the people to a great extent accepted the position of the plaintiffs and their ancestors have made a number of grants in respect to the land in dispute and other lands. On some occasions the Ga Mantse and the Gbese Mantse were joined as co-grantors and on other occasions the grants were made by the plaintiffs alone.
Had the matter ended there the plaintiffs might well have been in a strong position, but in 1898, for some reason best known to themselves, the Korle Wulomo executed a declaration purporting to grant a certain area of land, immediately north of the land now in dispute, to the Onomunorkor people another name for the Korle Webii of which- the Korle Wulomo was a Chief. This declaration was made before the Ga Mantse and the Gbese Mantse who witnessed the document. In short, this means that in 1898 although the plaintiffs claim to be owners of a huge area in and around Accra, the Wulomo and his elders suddenly decided to give to their people, i.e. themselves, a comparatively small portion of the area which they now claim and it should further be noted that this area is a complete transfer in fee simple with no suggestion that it is being held for themselves, the Ga Mantse and the Gbese Mantse. We may state at once that if the plaintiffs’ claim in this action is correct, the declaration of 1898 is quite incomprehensible.
The next difficulty with which the plaintiff is faced is that during the case for the defence it transpired that first in the case of Tetteh Quaye Molai v. Abler Kotey & Others in 1938 when giving evidence with regard to part of the land now in dispute, the Acting Korle Wulomo states as follows:-
” The Korle Webii are caretakers over it (Akwandor land) for the Ga Mantsemei (Chiefs) “
and later the same admission was made by Tetteh Quaye Molai in the case of Ashrifte v. Golightly.
It is a recognised principle in land cases and it does not admit of argument that the plaintiff, when claiming a declaration of title, must succeed on the strength of his case and at the conclusion of this case, now on appeal, the learned
trial Judge was not satisfied that the plaintiff had proved his case. The plaintiff now suggests in argument that he would be able to explain away these quite damning admissions by his predecessors in office. This may or may not be correct but the fact remains that if the plaintiffs are in fact the caretakers no matter what definition is placed upon that word, they certainly cannot claim to hold the land in what would amount to fee simple.
It is argued that they hold the lands in trust for the Ga people—a trust created by the spirit which entered into the woman ancestress of the plaintiffs. Even were it possible to reduce this legend to something more practical and capable of definition, how do plaintiffs account for the fact that they suddenly found it necessary in 1898 by Deed to transfer to themselves the large area of land mentioned above ? There can be no doubt but that the title of the plaintiffs (if any) is wrapped in mystery and we are of the opinion that the learned trial Judge was perfectly correct to non-suit the plaintiffs rather than dismiss the case, thus giving them an opportunity of clarifying their position if it is possible.
We have given full consideration to the many arguments put forward by Counsel for the appellants when arguing his many grounds of appeal but we are of the opinion that it is unnecessary to go any further into the matter as already we have indicated a sufficient number of reasons why the learned trial Judge rightly hesitated before he granted the Certificate of Title to the plaintiffs over the area of land which they now claim.
The appeal is dismissed with costs assessed at £75 15s. 6d.
Appeal dismissed.
