DJOMOA vs. AMARGYEI [1961]DLSC891

Date	1961-03-17
Suit No.
Citation No.	[1961]DLSC891

VAN LARE JSC

SARKODEE-ADDO JSC

AKIWUMI JSC

E. AKUFO-ADDO FOR THE APPELLANT

OBETSEBI-LAMPTEY

WITH HIM KOI LARBI FOR THE RESPONDENT.

[1961]DLSC891
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >

&nbsp;[SUPREME COURT]

[1961] GLR 170

DATE: 17TH MARCH, 1961.

</div>

COUNSEL:&nbsp;&nbsp;

E. AKUFO-ADDO FOR THE
APPELLANT.

</div>

VAN LARE, SARKODEE-ADDO AND AKIWUMI, JJ.S.C.

</div>

&nbsp;

His lordship referred to the facts here set out in the headnote
and continued:] There had been four chiefs in succession on the Abirem stool
including the defendant since 1928, that is, since the stool alienated that
portion of its lands to the plaintiffs, and there is no suggestion that any of
the three immediate predecessors of the defendant ever made any attempt to
challenge the plaintiffs’ title or ownership of the area now in dispute. There
is the uncontradicted evidence, on the other hand, that about the year 1950 in
a case of Nana Karikari Appaw v. Nana Atwuma Mana1(1), concerning another
portion of the Abirem stool lands, the Abiremhene, that is the defendant’s
predecessor who was a defendant in that case, called the plaintiff in the
instant case as a witness for the purpose of tendering exhibit A in support of
his case that he was the overlord of the lands of which the area describe in
exhibit A formed part and that he had been exercising acts of ownership in
respect of the same by selling it as his predecessor did in 1928 to Opanyin
Ahyima and his “company”. This conduct in our view is sufficient to estop the
defendant, the present occupant of the Abirem stool from denying the
plaintiff’s title or ownership of the area described in the document which his
predecessor in title accepted and relied on in a suit against him. However,
about three years before the institution of this suit in 1956 the defendant
without the leave or licence of the plaintiffs and in spite of repeated
warnings entered into the area which the plaintiffs had bought from his stool,
and either cut or caused to be cut down a number of economic trees on the land.
He allotted portions of the land sold to the plaintiffs to his men for farming
purposes in defiance of plaintiffs’ right and interest, and also granted timber
concessions to certain people. These events not unnaturally led to the
institution of this action.

The defendant does not impugn the validity of the sale to the
plaintiff and his “company”; he rather appears to have admitted the same when
in his evidence at the trial he said; “In 1928 my predecessor and his stool
elders sold a portion of Abirem stool land to the plaintiff and his company ...
Purchase price was £836. 10s. Terms of the sale were those contained in exhibit
A”. His case, however, both at the trial in the native court and on appeal
before the Land Court, and also at the earliest stages of the proceedings
before this court was that the land sold to the plaintiff and “company” had
three sides, and was therefore a triangle, and not four sides, not an oblong as
appears in the sketch plan in exhibit A. It was his case therefore that he had
not trespassed on plaintiffs’ area, meaning thereby that the trespassed area
was outside and not included in the plaintiffs’ land. The real and only issue
for determination before the trial native court, that is: what was the extent
of the land sold and purchased, was rightly found in favour of the plaintiffs.
Counsel for the appellant conceded this. On appeal, however, to the Land Court
the legal point was raised whether the fact that the document relied on,
(exhibit A) had sinned against the Concessions Ordinance could be pleaded. The
learned judge expressed the opinion that it could be pleaded, but nevertheless
appeared erroneously, with due respect, to distinguish the present case from
the well known case of Bissoe v. Ntah Aithie2(2) which is the authority for the
proposition:

“that if a lease, conveyance or other instrument in respect of
interest in or to land comprising of at least five acres, which is a concession
within the meaning of the Concessions Ordinance, has not been dealt with under
the said Ordinance, then such lease, conveyance or other instrument is null and
void and consequently all rights of the claimant with respect to such
concession, shall be deemed to have been determined absolutely”.

See, Donkor v. Texas Petroleum Co.3(3) The learned judge failed to
appreciate the importance of the plaintiff’s evidence in the instant case which
places entire reliance on the document, exhibit A, a conveyance of an interest
in land well over five acres, which as we have already pointed out, is a
concession. He further attempted to bring it within the case of Ogunbambi v.
Abowab,4(4) and suggested (whereas the facts in the present case do not warrant
such finding) that the document, exhibit A, is only of evidentiary value of the
transaction, and that the plaintiffs had earlier purchased the disputed area
and had been in possession thereof a long time before the execution of the
instrument, exhibit A. The evidence in the instant case is not that the sale
had been duly completed under customary law, with guaha cut, etc., nor that
after the plaintiffs had some time been in possession the conveyance was made
subsequently and “intended to confirm and perpetuate a method of a prior
customary grant”. If the evidence were so then such inference would be correct
and the position may be different. The learned judge of the Land Court however
basing his grounds on such erroneous inferences dismissed the appeal, holding,
as it were, that the document, exhibit A, was not caught up by the Concessions
Ordinance.

Although not approving of this reason for dismissing the appeal,
we nevertheless, would dismiss the appeal but on a different ground; that is to
say, that notwithstanding the plaintiffs’ failure to deal with such large area
of land purchased by them under the Concessions Ordinance, nevertheless in the
peculiar circumstances of the case, particularly owing to the conduct of the
defendant’s stool in allowing the plaintiffs to deal with the land as their
property, and in view of the fact that the defendant does not impugn the
validity of the document relied on, and further also having successfully used
a</main>