The Stool Of Oyoko Per Oyokohene Nana Ko Jo Agyekum & Anor V. Obaa Panin Yaa Mainoo & Anor (1940) LJR-WACA
The Stool Of Oyoko Per Oyokohene Nana Ko Jo Agyekum & Anor V. Obaa Panin Yaa Mainoo & Anor (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for damages for trespass and declaration of ownership—interpretation of an executive decision—Appeal dismissed.
Held : The Chief Commissioner rightly interpreted the executive decision . of 1913 as one fixing the boundary between the lands of Acherensua and Kwesiasi and as the trespass occurred on the Acherensua side of that boundary the plaintiffs-respondents were entitled to succeed.
The facts are fully set out in the judgment.
R. E. Phipps (with him A. G. Heward-Mills) for Appellants. H. A. H. Benjamin for Respondents.
The following joint judgment was delivered.
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
The plaintiffs started proceedings in the Asantehene’s Court ” B,” Kumasi, Ashanti, claiming £25 general and £45 special damages for trespass on plaintiffs’ land in Ahafo by cutting down thirty palm trees and denuding part of the land of its timber and trees.
The plaintiffs’ case was that, after the ” Abinimuro ” had been defeated in battle, the Otumfuor Asantehene gave the first plaintiff’s stool a large piece of land of which the first plaintiff retained a portion and gave another portion to the Kwesiasi whose descendants are the defendants in these proceedings. The plaintiffs contended that the boundary of their land, which is hereinafter referred to as Acherensua land, marching with that of the Kwesiasi land is the Kosu River from the junction with the Tano River up to where it crosses the Subonpom-Boma Road. They say that the second plaintiff was appointed ” Caretaker ” of this land by the first plaintiff’s Stool and that there was a dispute between
Acherensua (second plaintiffs) and the Kwasiasi as to their respective boundaries which was settled by Sir Francis Fuller, then Chief Commissioner of Ashanti, who, after hearing the Chief of Acherensua and Kwasiasi and the Chief of Mabang, who claimed land in the neighbourhood but said he had no boundary with Acherensua, decided that the boundary between the Acherensua and the Kwasiasi should be that which the plaintiffs claim to be the boundary.
The defendants do not dispute that on the 9th December, 1913, Sir Francis Fuller gave an Executive Decision in a dispute relating to the land now in dispute and that this was duly recorded in the _Boundary gook in pursuance or section :f of “ttie
shortly entitled ” The Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance ” (Cap. 120). Their contention is that the boundary fixed by this decision was not that between the land of the Acherensua and the Kwasiasi but a divisional or political boundary between the Ahafos and the Odumasis.
The dispute between the parties therefore resolves itself into the question whether the Executive Decision decided the land boundaries of the parties or the divisional or political boundary between the Ahafos and Odumasis.
The validated Executive Decision and proceedings were produced in evidence in the Chief Commissioner’s Court and marked Exhibit ” D.” The material part of this Executive Decision is as follows :—
” DISPUTE ABOUT THE OWNERSHIP OF ACHERENSUA LAND
” Enquiry held at Kwesiase on the 8th December, 1913
” The Kwesiase claim to this large tract of country is based on vague tradition handed down from generation to generation as are likewise the counter-claims of Acherensua and Mabang—and therefore, none of these claims call for serious consideration.
” The most feasible as well as equitable boundary between the Odumasis on the one side and the Ahafos on the other is the Kosu River and this River shall be the boundary from its junction with the Tano River up to where it crosses the Subonpon-Boma Road—without prejudice, however, to any claim that may be advanced by Boma—a Warn village.
” Any Odumasi owners of plantations to the West of the Kosu will have to obtain permission from the Chief of Acherensua to continue cultivation—in the absence of which they will have to evacuate their plantations.
” A similar arrangement to hold good in regard to any Ahafo plantations East of the Kosu River.
” The same will apply to all Rubber collecting, Game and Snails—£5 for ferry and £5 for ferry dues to be paid by the Chief of Acherensua to Chief of Kwesiase.
” Fishing rights on the Kosu to be mutual.
In the present proceedings the Chief Commissioner’s Court in its judgment examined the contentions of the parties and considered the political organisations of certain Ashanti States and their mutations and came to the conclusion that the only possible interpretation that could be put on Sir Francis Fuller’s Decision was that it laid down the boundary of the lands of Acherensua and Kwasiasi and not the divisional or political boundaries between the Ahafos and the Odumasis. In the course of that judgment the Acting Assistant Chief Commissioner, who constituted the Court, said :-
” Let us examine Ex ‘ D,’ the validated executive decision. It is headed Kwasiasi-Acherensua Lands—not Ahafo-Odumase lands. The decision commences,—’ The Kwasiasi claim to this large tract of country is based on vague tradition handed down from generation to generation as are likewise the counter-claim of Acherensua and Mabang—and therefore none of these claims call for serious consideration ‘.
” Now if the Chief Commissioner was as alleged by the defendants, merely holding an enquiry for the purpose of making a boundary between the two Divisions it appears to me strange that he should mention the claims of these individual villages and that there should be no mention of the Head Chiefs of the Divisions. The only interpretation that I consider can be put on paragraph 2 of the decision is that Odumases refers to the people of Kwasiase and the Ahafos to the people of Acherensua.
Again if this boundary was only a divisional boundary and not a land one why in paragraph 3 does the Commissioner say that Odumase owners of plantations to the west of Kosu will have to obtain the permission of the Chief of Acherensua to continue cultivation—in the absence of which they will have to evacuate their plantations.
” Surely if the contention of the defendants is to hold good it should have been the Omanhene of Ahafo’s permission which should have been sought.
” I can come to no other conclusion that so far as Acherensua and Kwesiasi is concerned this dispute is governed by the executive decision.
We are in entire agreement with the conclusion arrived at by the Chief Gommissioner’s Court and the reasons therefor ; and we may point out that above the heading ” Kwasiasi—Acherensua Lands ” quoted by the Acting Assistant Chief Commissioner there are the other very significant words ” Dispute about the ownership of Acherensua Land.” It is abundantly clear that the exhibit is exactly what it purports to be, namely, a decision in a dispute about the ownership of Acherensua Land, which is precisely the dispute in the present proceedings.
The boundary fixed by Sir Francis Fuller having been duly recorded in the Boundary Book is therefore, by reason of Cap. 120, Section 3, the boundary between the lands of Acherensua and Kwesiasi, subject to any claim that Boma village may have.
It is clear that the Asantehene’s Courts ” A ” and ” B ” did
not appreciate that, if it appeared that the validated derision of
Sir Francis Fuller determined the boundary between the lands of
the Acherensua and Kwesiasi in the sense that the plaintiffs claimed
that it did, then that boundary was fixed by law and the qtuestion
in effect, res judicata, so that if the trespass complained of
:.-curred on the Acherensua side of that boundary, as it clearly did,
then the first plaintiff who was suing as the overlord of the Acherensua and the second plaintiff as his ” Caretaker ” were entitled to succeed. This aspect was not considered by those Tribunals and their judgments cannot therefore stand.
In the course of the proceedings before the Chief Commissioner’s Court leave was granted by that Court to amend the writ by adding, after the word ” trees,” the following :-
and a declaration of ownership in favour of Plaintiffs of all that piece and parcel of land situate, lying and being at Ahafo in the Goaso District and bounded by the Kosu River as laid down by Sir Francis Fuller in the executive decision in the year 1913 “.
lids &WIT eared eihreC6uit Ausvawvregvari.teJ
leave to amend the writ. We cannot agree with this contention. The real dispute between the parties was as to what was the boundary between the Acherensua and Kwesiasi. This was made clear early in the proceedings in the Asantehene’s Court ” B ” when nu. xlefrtrui2nt caiel ” the Court will know if the land in dispute is plaintiff’s property or mine.” We are therefore satisfied that it was the Court’s duty to allow this technical amendment so that the actual dispute between the parties could be competently determined in the proceedings.
We dismiss the appeal from the judgment of the Chief Commissioner’s Court with costs assessed £43 5s. 6d. We consider it desirable, however, to amend the form of the judgment of the Chief Commissioner’s Court so as to ‘make its effect quite clear and also to give the Oyokohene costs in the two Native Tribunals, to which we think he is entitled, as it was a wise precaution that he should be joined as plaintiff. We accordingly substitute for the last two paragraphs of that judgment the following :—
” The appeal is allowed. The judgments of the Asantehene’s Courts ‘ A ‘ and ‘ B ‘ are set aside. The plaintiffs are awarded £25 damages against the defendants and the plaintiffs are granted a declaration that the boundary between the land of the Acherensua and Kwesiasi is the Kosu River from its junction with the Tano River up to where it crosses the subonpom Boma Road without prejudice, however, to any claim that may be advanced by Boma, a Wam village. Such declaration to leave unimpaired that part of the validated decision of Sir Francis Fuller which reads ” Any Odumasi owners of plantations to the West of the Kosu will have to obtain permission from the Chief of Acherensua to continue cultivation—in the absence of which they will have to evacuate their plantations. A similar arrangement to hold good in regard to any Ahafo plantations East of the Kosu River. The same will apply to all Rubber collecting, Game and Snails-15 for Ferry and £5 for ferry dues to be paid by the Chief of Acherensua to Chief of Kwesiase. Fishing rights on the Kosu to be mutual ‘.
” The Plaintiffs are awarded costs in this Court and in the Courts below all to be taxed “.