BOATENG vs. NTIM AND OTHERS [1961]DLHC864

Date	1961-11-16
Suit No.
Citation No.	[1961]DLHC864

OLLENNU J

DR. DE GRAFT JOHNSON FOR THE PLAINTIFF-APPELLANT

A. ASAFU-ADJAYE FOR THE DEFENDANTS-RESPONDENTS.

[1961]DLHC864
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 671

DATE: 16TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

DR.
DE GRAFT JOHNSON FOR THE PLAINTIFF-APPELLANT.

A.
ASAFU-ADJAYE FOR THE DEFENDANTS-RESPONDENTS.

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OLLENNU, J.

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&nbsp;

This is an appeal from a judgment of the West Kwahu Local Court
delivered on the 23rd March, 1961. The claim is for recovery of possession and
damages for trespass. The land is a portion of the Bepong stool land. The
co-defendant is the occupant of that stool.

The case of the appellant, plaintiff in the local court, is that
the said land is a portion of land, sold and conveyed to him by the Bepong
stool by customary law about 20 years ago; that upon the said sale he entered
into possession and caused his sons to farm a portion of it. And the case for
the defendants is that the portions of the land which they occupy were granted
to them by the co-defendant’s stool, the Bepong stool, as subjects of the said
Bepong stool.

The local court magistrate found as a fact that the Bepong stool
granted the said land to the plaintiff and that the plaintiff and his people
are in possession of a portion of it. He found at the same time that the said
stool made grants of portions of the same land to the defendants. The local
court however dismissed the appellant’s claim on three grounds, namely: (1) the
sale to the plaintiff is not valid because the guaha custom was not performed;
(2) a deed of exchange executed by the co-defendant, the Beponghene, is null
and void because it did not receive the concurrence of the local council; and
(3) the plaintiff is estopped by his acquiescence from denying the title of the
defendants.

On the question of the performance of the guaha custom, evidence
was led by the plaintiff that upon the sale of the land to him he performed all
the necessary custom appertaining to a valid sale, including the guaha custom,
and that at the request of the stool the guaha custom was performed in the
house of Asiedu Kwaku, the fourth defendant, who led the party that demarcated
the land for him, the plaintiff. The fourth defendant was in court and heard
the plaintiff give that evidence, but he, the fourth defendant, did not give
evidence and did not in any way refute that evidence that the guaha custom was
performed and that the performance took place in his, fourth defendant’s house.
The presumption therefore is that that evidence of the plaintiff is true. Opoku
P.W.1, an elder of the Bepong stool did say under cross-examination that guaha
custom was not performed, but when that evidence of his is read together with
other evidence he gave, i.e. that the demarcation of the land was made by the
said Asiedu, the fourth defendant, together with three others, not including
himself, and that he inspected the demarcation a week later upon directions of
the Beponghene, it becomes clear that he is not in a position to contradict the
evidence of the plaintiff on that issue, and that his evidence that guaha had
not been cut is based upon the fact that none was performed in his presence.
The only other witness who spoke about the guaha custom is the co-defendant,
the present occupant of the Bepong stool. His evidence on that point is that he
was told; he did not say who it was that told him that guaha had not been
performed, and he did not produce any witness who knew of it of his own
knowledge. Therefore the evidence of the plaintiff that guaha was performed
stands uncontradicted. But that is not all.

The most important thing in sale of land by customary law is that
as much publicity as possible should be given to the fact of the transfer of
ownership from the vendor to the purchaser. The performance of the guaha custom
is part of the acts of publicity. Therefore where there is sufficient publicity
of the transfer by unequivocal acts on the part of the transferor, that would
be sufficient evidence of a concluded valid transfer by customary law, even if
there is no clear evidence of the performance of guaha custom. Now in this case
there is a most important piece of publicity, and it is this; a large area of
land including the one demarcated for the plaintiff was declared a forest
reserve not long after the transaction between the stool and the plaintiff.
Later, at a meeting with the Forestry Department at the offices of the District
Commissioner at Mpraeso, the stool requested the Forestry Department to release
that land out of the reserve to the plaintiff and accordingly the land was
released to the plaintiff. That evidence shows sufficient publicity that
ownership of the land has passed from the Bepong stool to the plaintiff. In my
opinion that evidence coupled with the possession of a portion of the land by
the plaintiff and the evidence of the plaintiff of the performance of guaha,
provide ample proof of transfer of ownership of the land from the Bepong stool
to the plaintiff. The case of Tei Angmor &amp; Co. v. Yiadom III &amp;
Anor.1(1) cited by counsel for the respondents is not applicable because in
that case the plaintiff sought to prove the performance of guaha by a document
which, apart from the defects it had, was inadmissible. Consequently there was
a complete absence of any evidence of the performance of guaha. The position is
quite different in this case.

Section 75 (1) of the Local Government Ordinance,2(2) upon which
the local court magistrate further ba</main>