NII AMON KOTEI vs. ASERE STOOL [1961]DLHC5426

Date	1961-07-24
Suit No.
Citation No.	[1961]DLHC5426

LORD DENNING LORD MORRIS OF BORTH-Y-GEST AND THE RT. HON. MR. L.M.D. DE SILVA

S.G. DAVIES AND D. TAVERNE FOR THE APPELLANT.

D. FOOT Q.C. AND W. JAYAWARDENA FOR THE RESPONDENT.

[1961]DLHC5426
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NII AMON KOTEI<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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;ASERE STOOL<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]<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">

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

S.G.
DAVIES AND D. TAVERNE FOR THE APPELLANT.<o:p></o:p>

D.
FOOT, Q.C. AND W. JAYAWARDENA FOR THE RESPONDENT.<o:p></o:p>

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

LORD DENNING LORD MORRIS OF
BORTH-Y-GEST AND THE RT. HON. MR. L.M.D. DE SILVA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
LORD DENNING<o:p></o:p>He reviewed the facts and earlier proceedings set out in headnote,
and continued:] The first point to be considered is whether the Nikoi Olai
family are entitled to these 900 acres of land as their ancestral property or
whether it is Asere stool land. Upon this point the Nikoi Olai family relied
greatly upon an earlier case decided in 1948 by the same judge, Jackson, J. It
was a case where a piece of land was required for a wireless station. It was
part of these Mukose lands. The government had acquired it. The compensation
had been assessed by Korsah, J. But the question was: to whom was the
compensation payable? The rival claimants were the Nikoi Olai family and the
Asere Mantse. Jackson, J. held that the Nikoi Olai family were the parties in
possession of seven-eighths of the area as the owners thereof and, as such,
were entitled to receive compensation for seven-eights of the area of the land;
but that in respect of the remaining one-eighth the Asere Mantse was entitled
to receive compensation for that portion. The Nikoi Olai family asserted before
their Lordships that this amounted to a res judicata adjudging that they were
the absolute owners of the Mukose lands as their family lands free from any
rights of the Asere stool. Their Lordships cannot so regard it. Although
Jackson, J. found that the Nikoi Olai family were owners in possession of
seven-eighths he also found that their rights were subject to the paramount
title of the Asere stool; and on that account the Nikoi Okai family had no
“right to alienate without the consent of the paramount stool”.<o:p></o:p><o:p>&nbsp;</o:p>In the present case Jackson, J. came to a similar conclusion. He
held that the Mukose lands were Asere stool lands. He based this finding on
evidence that the Asere stool had placed headmen on the land; that these
headmen permitted strangers to farm upon that land and collected tolls from
them; and the headmen paid these tolls over to the Asere Mantse. Their
Lordships have examined this evidence and are of opinion that it supports the
judge’s finding that “the tolls collected were paid by the collector to the
Asere Mantse”. It was said by Mr. Davies that, even if this were so, it does
not warrant the inference that it was Asere stool land. The tolls were only
paid by strangers and they may have been paid, not for the use of the land
itself, but as a recognition of the political jurisdiction of the Asere Mantse.
Their Lordships cannot accept this view. It seems clear upon the evidence that
these strangers paid the tolls for the use of the land.<o:p></o:p><o:p>&nbsp;</o:p>The West African Court of Appeal affirmed the decision of Jackson,
J. but their Lordships feel bound to notice that they seem to have made two
slips in their reasoning. They seem to have been under the impression that the
compensation was awarded according to the rights of the parties in the whole
land, that is, as to seven-eighths to the Nikoi Olai family for their
possessory right to the whole, and as to one-eight to the Asere stool for their
right to manage and control the land and receive tolls. But Mr. Dingle Foot felt
bound to concede that the compensation was not divided on that basis. Nor
indeed could it be. The only persons entitled to compensation were “the parties
in possession of such lands as being the owners thereof”. It was therefore a
necessary finding by Jackson, J. in the wireless case that the Nikoi Olai
family were entitled in possession as being the owners of seven-eighths of the
land. There was another error made by the West African Court of Appeal. They
relied on the evidence of one Djani Kofi in an earlier case, which had been
specifically excluded. And Mr. Dingle Foot felt obliged to admit this. In view
of these errors made by the West African Court of Appeal, it cannot be said
that there are two concurrent findings that these lands were Asere stool lands.<o:p></o:p><o:p>&nbsp;</o:p>In these circumstances it is open to their Lordships to consider
the evidence adduced before Jackson, J. in the present case; and they find
there was sufficient evidence on which he was entitled to find, as he did, that
the Mukose lands were Asere stool lands, in this respect, that the Asere stool
had a paramount title. The payment of t</main>