Nchirahene Kojo Ado V. Buoyemhene Kwadwo Wusu (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Title to Land—Native Law and Custom not to over-ride Equity—The test applicable.

Held: Following the Boketsi case (Renner Reports 239-243) Quassi Bayaidee v. Quarmina Mensah (Renner Reports 45) and Kodwo Nkomo’ v. Kwamin Etsiaku (1922) F.C. ’22, 1 (p. 5) that if the defendant can show that over a lengthy period of occupation he has been led to regard the land as his own and has spent moneypn its improvements the plaintiff is now estopped from setting up his claiM of ownership, but if defendant cannot show this the plaintiff is entitled to a declaration of title.

Appeal allowed, and case remitted to Court of Chief Commissioner for evidence relevant to this test to be taken.

There is no need to set out the facts. A. G. Heward-Mills for Appellant. T. Hutton-Mills for Respondent.

The following joint judgment was delivered :—

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

This case began in the Asantehene’s Divisional Court ” B ” held at Kumasi with the following issue :—

” The plaintiff swore the Great Oath that a parcel of ” land known and called Taa Kokoti ‘ belongs to ” him and that he occupied it before the defendant ” overtook him there and the defendant also ” responded that the said land belongs to him and ” with it he serves Nana Hemaa.”

Before that tribunal the plaintiff’s case was that it was his ancestor who permitted the defendant’s ancestor to go and settle on the land in dispute (which is also called Buoyem).

The defendant’s case was that it was the Asantehene Nana Poku Ware who gave his ancestor the land.

It is not disputed that defendant has been in undisturbed occupation of the land for nearly 200 years without payment of any tribute to plaintiff, but the plaintiff alleges that what was made to mark the incident of the grant of the land to defendant’s ancestor was that there should be no adultery fee between plaintiff and his people on one side and defendant and his people on the other. Both parties relied upon the evidence of one Kwaku Attah, Nchirahene which is summarised by the tribunal as followsIC* Ado

” That the plaintiff’s ancestor owned the land originally ” and that the defendant’s ancestor overtook the ” plaintiff’s ancestor living on the said land and ” that because the plaintiff went away and did not ” return to re-occupy the land the defendant has ” been known and acknowledged as the owner, ” receiving from outside people farming the said ” land or hunting thereon all customary dues; but ” that if the plaintiff were living on it even to-day, ” such customary dues would have been given him ” instead of the defendant.”

The tribunal regarded this evidence as entirely against the defendant, disbelieved the defendant’s version that his ancestor was given the land by Nana Poku Ware, and gave judgment for the plaintiff with costs.

The defendant appealed to the Asantehene’s Court ” A,” which heard both parties, but did not take any fresh evidence. The defendant-Appellant however tendered before this tribunal two certified copies of an alleged demarcation of boundary between him and Tuobodombene said to have been laid between them by Commissioner T. E. Fell on 22nd November, 1905 and 27th July, 1908, respectively. The respondent objected to these papers being accepted in evidence in that he was not a party to the suit which necessitated the alleged boundary being drawn up. The objection was upheld and the documents rejected.

The Court decided the appeal in the following terms :—

” This Court, having read the appeal record and also ” the appellant’s grounds of appeal and having ” examined both parties on certain knotty points ” about the disputed land, is satisfied that the ” judgment of the Court below is in order and while ” it does not propose to disturb it, it feels that it ” will not be equitable to eject the appellant from ” the disputed land or to deprive him of a share of ” the proceeds thereof, in view of the fact that the ” appellant and his stool subjects or followers have ” been living on the land since the past (200) two ” hundred years, i.e. since the days of the ” Asantehene Nana Poku Ware. The Court ” therefore makes the following equitable arrange” ments between the parties :—

” (a) The appellant and his followers should ” continue to live on the disputed land free ” from all tributes,

” (b) Tributes payable by strangers farming on the ” land should be divided into tripartite : one” third to go to the Golden Stool as prescribed

by custom; one-third to go to the appellant ” and the remaining one-third to go to the ” respondent as land owner.

” (e) Mining rights and treasure trove should be ” similarly divided.

” The appellant must however pay the taxed costs of the ” respondent in this and the Court below for bring” ing unnecessary litigation.”

As to this it is to be observed that the tribunal went far outside the scope of the suit before it, which was solely to determine whether or not the plaintiff was, as against the defendant, to be declared the owner of the land in dispute. Apparently the ” A ” tribunal answered this question, as did the ” B ” tribunal in the affirmative.

The defendant then appealed to the Court of the Chief Commissioner of Ashanti. The appeal was heard by Mr. Bewes, Acting Assistant Chief Commissioner, appointed to preside over the Chief Commissioner’s Court. After hearing the parties, he dismissed the appeal, treating that part of the judgment of the Asantehene’s Court ” A ” which deals with the sharing of the produce from the land as merely an expression of what that Court considered would be an equitable arrangement between the parties and not as an order of Court. In giving his judgment the Acting Assistant Chief Commissioner said :—

” Now the action before the Native Court was to decide ” who was the owner of the land. Following ” Watson, J., in Agyeman v. Yarmoah (1913) D. and ” F. 11-16, 56 who made a pronouncement that ‘ it ” has been held by the Courts of the Colony that ” mere use and occupation for some time cannot

oust an original title, in other words there is no ” such think in native customary law as a ” prescriptive right,’ I have come to the conclusion ” that the judgment of the Native Court was ” correct when it decided that the Nchirahene was ” the owner. They were also correct in deciding ” that it would be inequitable to oust the defendant ” from the land, that it does not seem that the ” plaintiff was asking for this. His action appears ” to be only to establish his title to the land with a ” view to obtaining later a share of any valuable ” minerals.

” To this extent therefore I uphold the judgment of the ” Court below.”

From that judgment the defendant now appeals to this Court and the appeal comes before us with the decision of three inferior Courts unanimously in favour of the respondent. We are naturally extremely reluctant to go counter to this unanimity, and in fact we do not propose to reverse any of the findings of the lower Courts, but we do consider it incumbent upon us to consider the case from rather a different angle, namely, how the rights of the parties are affected by the doctrines of equity which are well recognised by the Courts of the Colony as applying in such cases as this.

All three Courts below have rejected the defendant’s story that his ancestors were put on the land by Asantehene Nana Poku Ware, and though we have been invited by appellant’s counsel to reverse this finding of fact, we are certainly not prepared to do so. But defendant’s counsel has then submitted—and the point is taken for the first time in this Court, so that it has not been considered by the lower Courts—that even if defendant’s ancestor originally went into occupation of the land by permission of plaintiff’s ancestor as alleged by plaintiff, the plaintiff is now estopped from coming to the Courts to ask for a declaration of title by his conduct in standing by for nearly 200 years and allowing the defendant to treat the land as his and incur expense in regard to it.

The three Courts below have found that it was the plaintiff’s ancestor who put defendant’s ancestor on the land and that in accordance with native law and custom the plaintiff remains the owner. We accept the finding and entirely agree that in accordance with strict native law and custom the plaintiff remains the owner. But there is a long series of decisions in which it has been laid “dawn that the Courts will not allow the strict native law and custom to be invoked in such cases as this when the effect is, in equity, unjust. The principle may be said to have been first enunciated in an obiter dictum in what is known as the Bokitsi case. In that case Mr. Justice Morgan said :—

” Assuming, however, that they had proved that at some ” former period it had been so attached, but that ” the /amfuris had, without any definite permission ” being granted to them, occupied it without paying ” tribute, and under such circumstances (as in the

present case) as would cause them to believe them” selves to be the owners of the land, and to incur ” pecuniary responsibilities in consequence of that ” belief, we think it right to state that in our ” opinion it would be contrary to the principles of ” equity to allow the native law to apply in its ” entirety such law being, as we understand it, that ” the original owner of land who has not specifically ” divested himself of his ownership can, after any ” length of time and under any circumstances,

” obtain recovery of his land from persons setting up ” an adverse title, whatever may be the detriment ” caused to such persons by the fact that the original ” owner chose to sleep on his rights.” (Bokitsi case ” (1902) Sarbah’s F. L. R. 159 at p. 160; Renner ” 239).

This dictum has been frequently approved and acted upon, and one other only of the cases need be referred to. In the case of Kodwo Nkoom v. Kwamin Etsiaku (1922) F.C. ’22, 1 at page 5 Smyly, C.J., said :—

” This ground is based on two reported cases, Concession ” No. 38 (Bokitsi No. 1) (Renner Reports 239-243), ” and Quassi Bayaidee v. Quarmina Mensah (Renner ” Reports, 45). Both these cases decide that the ” native law and custom that the original owner can ” go to sleep on his rights, and subsequently recover ” his land from persons setting up an adverse title ” whatever may be the detriment caused to such ” persons was contrary to the principles of equity. ” The test as to whether the native law and custom ” should be followed or not would appear to be, ” whether the adverse possession was of such a kind ” as to lead the persons so holding adversely to ” believe they were the owners, and as such to have ” incurred pecuniary responsibilities.”

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.”

The appeal is accordingly allowed and the judgments of the three lower Courts, including the orders as to costs are set aside and the case is remitted to the Court of the Chief Commissioner to allow each party to call before it such evidence as he may wish which is relevant to the test indicated. The Chief Commissioner’s Court having heard such evidence should then give judgment in accordance with the principles herein set out, and should make such order as it thinks proper in regard to the costs already incurred in the three lower Courts and to be incurred before it.

The appellants is awarded costs in this Court assessed at £22 Is. Ild.