QUAYE vs. MARIAMU [1961]DLSC5500

Date	1961-02-13
Suit No.
Citation No.	[1961]DLSC5500

KORSAH C.J.

VAN LARE JSC

AKIWUMI J.S.C.

A. W. ACQUAAH FOR THE APPELLANT

B. PABI FOR THE RESPONDENT.

[1961]DLSC5500
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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">QUAYE <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">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">MARIAMU<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;[SUPREME COURT, ACCRA]<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">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 93&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:<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:#00B0F0"> 13TH FEBRUARY, 1961.<o:p></o:p>

</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">

A.
W. ACQUAAH FOR THE APPELLANT.<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">

KORSAH C.J., VAN LARE JSC,
AKIWUMI J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE, J.S.C.,<o:p></o:p>Van Lare, J.S.C. delivered the judgment of the court. This is an
appeal from the judgment of Sarkodee-Adoo, J. as he then was, delivered on the
2nd October, 1959, in the Land Court, Accra, in a suit in which the plaintiff
claims declaration of title to a piece of land at North West Korle Gonno Lay
Out, Accra; recovery of possession; damages for trespass and perpetual
injunction restraining the defendant, her agents and servants from entry upon
the land in respect of which the defendant also counterclaimed for damages for
trespass and perpetual injunction against the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The land, the subject-matter of controversy, appears to be a
portion of Sempe stool land; the plaintiff bases his claim on a deed of gift
purporting to be executed in his favour by Nii Tetteh Kpeshie II, Mantse of the
Sempe stool, with the consent and concurrence of the elders and councillors of
the said stool. The document executed on the 31st March, 1953, appears to be in
order on the face of it and there is no suggestion to the contrary. The
defendant on the other hand who has put up a swish building on the land claims
to have done so by reason of a grant to her by one Abudulai Tia, who claims to
be the caretaker and to have the right to do so, relying upon authority given
to him by the Dsasetse, stool mother and elders of the Sempe stool to grant the
stool lands in the area concerned to members of the Hausa community to which
the defendant belongs. The testimony of Abudulai Tia on this point is supported
by that of Nii Kpakpo Muffat, Dsasetse of Sempe. The evidence is not clear
whether the gift to the plaintiff or the grant to the defendant is prior in
time to the other and there is no finding on this issue. It does, however,
appear that at the time material to the grant to the plaintiff by the Sempe
stool either Nii Tetteh Kpeshie II had been suspended from acting as an
occupant of the stool or had in fact been destooled. There was also the
suggestion that even if Nii Tetteh Kpeshie II had been destooled at that time
the destoolment had not been recognised by the Government. There was,
therefore, the question for a decision whether in the circumstances Nii Tetteh
Kpeshie II’s acts could or could not bind the stool.<o:p></o:p><o:p>&nbsp;</o:p>Further it should be pointed out that the name of Nii Kpakpo
Muffat, the Dsasetse of Sempe, admittedly an elder of the Sempe stool according
to customary law, who gave evidence for the defendant does not appear as one of
the elders whose consent and concurrence had been obtained for the alleged
alienation to the plaintiff. This witness deposed that Nii Tetteh Kpeshie II
was, at all times material to the case, destooled for alienating Sempe stool
land not in accordance with custom. It became therefore necessary for specific
findings as to this and other issues raised at the trial to be given and
recorded but the learned judge did not record any findings of such primary
facts. This court is therefore left without the necessary foundation as to (1)
whether at the time of the grant to the plaintiff Nii Tetteh Kpeshie II was the
occupant of the Sempe stool; (2) whether the grant to the defendant was made by
a competent person; and (3) arising from (1) and (2) whose right to the
disputed land accrued earlier in time, both parties claiming and relying on the
same origin of title.<o:p></o:p><o:p>&nbsp;</o:p>In a short judgment the learned trial judge, without assigning any
reasons, simply expressed the opinion that he did not think that the plaintiff
had discharged the onus of proof which lay on him and he was also of the
opinion that the deed of gift to the plaintiff did not confer the title as
claimed by him. The defendant’s counterclaim appears to have been summarily
dismissed in this way: “On the evidence before the court neither of the parties
can succeed on the claim and on counterclaim.”<o:p></o:p><o:p>&nbsp;</o:p>