SASRAKU vs. DAVID & ORS. [1959]DLCA5519

Date	1959-01-12
Suit No.
Citation No.	[1959]DLCA5519

VAN LARE AG. C.J.

GRANVILLE SHARP J.A.

OLLENNU J.

HAYFRON-BENJAMIN WITH HIM PREMPEH FOR THE APPELLANTS.

[1959]DLCA5519
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													<main id="main" class="content" style="min-height: 60rem" >SASRAKU<o:p></o:p>vs.<o:p></o:p>DAVID
&amp; ORS.<o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1959]
GLR 7&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;DATE: 12TH
JANUARY, 1959.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div>COUNSEL<o:p></o:p>HAYFRON-BENJAMIN,
WITH HIM PREMPEH, FOR THE APPELLANTS. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div>CORAM:<o:p></o:p>VAN LARE
AG. C.J., GRANVILLE SHARP J.A., OLLENNU J.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div><o:p>&nbsp;</o:p>The sale
of land by a Sub-Chief must be with the consent of the overlord (Sintim v.
Apeatu and ors. (2 W.A.C.A. 197)). Exhibit G (one of the conveyances) does not
show that the Kokofu Stool joined in it and therefore there was no evidence
that the overlord - the real owner - conveyed the land referred to therein to
the plaintiff. The plaintiff also failed to lead evidence to establish the
custom of the outright sale of land in Ashanti, and the thousand or more
instances of such sale do not constitute an established custom. To the
contrary, the evidence of the dignitaries Appiah and Baffour Akoto shows that
land is not saleable in Ashanti. The plaintiff relied on sale by native custom,
but failed to bring evidence of such a sale. Though the trial-Judge was not
bound by the case of Mensah and ors. v. Wiaboe he was wrong in not following
it. He unnecessarily quoted unrecognized authors. He wrongly granted an
absolute declaration of title. The costs were excessive to the point of being
fantastic: that there had been an abortive trial was no fault of the parties,
yet the defendant was mulcted in costs.<o:p></o:p>Franklin
for the respondent. The Judge was right in declaring the plaintiff entitled to
absolute title. Appiah’s evidence was that there had never been any declaration
before or after 1952 that lands were not saleable in Ashanti. In view of that
part of Exhibit G relating to division of profits from allodial rights, it is
for the Court to determine what interest was intended to be passed. We say that
our interest is in accordance with native custom, but whether this amounts to
an absolute title or a possessory title is for the Court to decide. It is
admitted that our three conveyances (Exhibits G. H and P.) sin against the
Concessions Ordinance, and are void. As to the order for costs, our costs were
at least 2,000 guineas. This Court has the right to interfere with that order,
but the question for the Court is, Did the trial-Judge exercise his discretion
judicially? The case was one of great importance to others. Even if the, costs
were punitive the Judge was right in the way he exercised his discretion.<o:p></o:p>Prempeh
(in reply). The fourteen hearing dates were due to the trial-Judge’s starting
the case at 12 noon and continuing with the hearing for only an hour or so.<o:p></o:p><o:p>&nbsp;</o:p>Granville
Sharp J. A.:<o:p></o:p>The claim
in this action was for a declaration of title to and ownership of land, and for
an injunction to restrain the defendants from trespassing on the said land.<o:p></o:p>The
plaintiff, as representative of a family-company of Teshie people, based his
title to the land upon three documents dated 23rd December, 1927, 4th
August, 1934 and 12th April, 1935 respectively, by which (he
claimed) the said land had been sold to him absolutely in three parcels by the
Stool of Chempaw. The co-defendant in the suit, representing the Stool of
Kokofu, bore the whole burden of the defence, the defendant Sawmill Company
simply relying on the protection of a felling agreement granted to them by the
Kokofu Stool, and dated 30th October, 1953.<o:p></o:p>The
co-defendant did not admit that the land was sold as alleged by the plaintiff,
and contended further (a) that land is not alienable by sale in Ashanti, and
(b) that if there had been any sale by the Chempaw Stool it was a sale made
without the knowledge or consent of the Paramount Stool (the co-defendant), and
was therefore invalid.<o:p></o:p>The
co-defendant further, by amendment of his pleading, counter-claimed for a
declaration of title to the land in dispute, for recovery of possession as
against the plaintiff, and for damages for trespass as against the plaintiff.<o:p></o:p>