OKANTEY vs. KWADDEY [1959]DLCA2036

Date	1959-05-29
Suit No.
Citation No.	[1959]DLCA2036

KORSAH C.J.

ACOLATSE J.

SMITH J.

LASSEY FOR PLAINTIFF (OKANTEY).

[1959]DLCA2036
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">OKANTEY <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">KWADDEY<o:p></o:p>&nbsp;[COURT OF APPEAL.]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 241<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29TH MAY, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY FOR
PLAINTIFF (OKANTEY).<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C.J., ACOLATSE J., AND SMITH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SMITH<o:p></o:p>Plaintiff
established that he obtained a grant in December, 1939 by the Anahor Stool.
Prior to that, viz. in September, 1939, the Osu Stool (which includes the
Anahor Stool) purported to grant land, including the disputed area, to the Chief
Secretary by agreement. On the 24th October, 1940, the Legislative Council
passed an ordinance under which Government acquired an indefeasible interest in
the said land. In December, 1939, when the Shippi conveyed to the plaintiff,
Government had not acquired that “indefeasible interest.”<o:p></o:p><o:p>&nbsp;</o:p>The land
in dispute was held under native tenure, and the parties are natives;
therefore, sec. 87(1) of the Courts Ordinance applies. In consequence, the
learned Judge was wrong in applying the purely English Rule against
Perpetuities to this case. The land is Stool land granted by the Stool to
subjects of the Stool. The agreement made by Government with Chiefs recognises
native customary law, clearly showing that it was intended that under the
agreement native customary law was not excluded. It follows that the English
Rule against Perpetuities could not apply to defeat the rights of persons
deriving title from the Chief or Chiefs. Yet the trial-Judge dismissed the
claim because the grant sinned against that Rule.<o:p></o:p><o:p>&nbsp;</o:p>In
Danquah v. Ofei (2 W.A.L.R. 185) the rule against perpetuities was not applied.
In Johnston v. Effie (14 W.A.C.A. 254) it was held that “a conveyance forms no
part of a sale by native law and custom, mention of it in the receipt given by
the vendor to the appellant-defendant, coupled with the other circumstances,
indicated clearly that they intended their transaction to be governed exclusively
by English Law.”<o:p></o:p>But in
Ferguson v. Duncan (14 W.A.C.A. 316) it was held that “the parties being
natives, the onus was on the defendant to satisfy the Court that native law and
custom should not be applied, but he neither cross-examined the plaintiff nor himself
gave evidence towards that end; and as for the subsequent mortgage, it was
plainly an afterthought and formed no part of the original transaction. The
evidence did not establish that the transaction was to be exclusively regulated
by English law, and the Statute of Limitations did not apply.”<o:p></o:p><o:p>&nbsp;</o:p>Even if
the Rule against Perpetuities were applicable to grants between natives the
grant to plaintiff-appellant was a vested grant, and therefore did not sin
against that Rule. “The first remark to make about the Rule is that it does not
apply to a vested interest, even though it does not take effect until a remote
period” (Cheshire, “Modern Real Property,” 6th Edition, p. 482). Vested and
contingent interests are distinguished on pp. 441 and 442 of the work cited.
And the question what is a reversionary interest is examined in Suleman v.
Johnston (13 W.A.C.A. 213 at p. 215, 3rd paragraph.)<o:p></o:p><o:p>&nbsp;</o:p>The
trial-judge misdirected himself as to the issue before him, which really was,
“As between the parties, who had the better interest?” The question of title
was not an issue. Where an owner of land brings an action to recover possession
thereof, the defendant being in possession, the onus of proof of right to
possession lies on the defendant. In a trespass action an averment of ownership
is consistent with and amounts to an averment of possession, for ownership may
be proved by proof of possession; the allegation, in such an action, that the
plaintiff is owner puts possession and not ownership in issue, as possession is
all that he need prove (Eng</main>