DUEDU vs. YIBOE [1961]DLSC898

Date	1961-06-20
Suit No.
Citation No.	[1961]DLSC898

LORD DENNING JSC

LORD MORRIS OF BORTH-Y-GEST JSC

LORD HODSON JSC

P. QUASS

Q.C.

G. DOLD AND J. BAKER FOR THE APPELLANT

DINGLE FOOT

Q.C. AND J.G. LE QUESNE FOR THE RESPONDENT.

<p class="mb-5" id="contentDlCitation"  hidden>[1961]DLSC898</p>
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</p><p align="center" style="margin: 0px 0px 6.66px; text-align: center;"><b style="mso-bidi-font-weight:&#10;normal"><span style='margin: 0px; color: rgb(84, 141, 212); line-height: 115%; font-family: "Book Antiqua",serif; font-size: 10pt;'><span style="margin: 0px;">&nbsp;</span></span></b><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 10pt;'>[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]</span></p><p>

</p><p align="center" style="margin: 0px 0px 6.66px; text-align: center;"><b style="mso-bidi-font-weight:normal"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 10pt;'>[1961] GLR 346</span></b></p><p>

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</p><p style="margin: 0px; border: medium; border-image: none;"><b style="mso-bidi-font-weight:normal"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>COUNSEL:<span style="margin: 0px;">&nbsp;&nbsp; </span></span></b></p><p>

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<p style="margin: 0px; padding: 0in; border: medium; border-image: none; text-align: justify;"><span style='margin: 0px; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>P.
QUASS, Q.C., G. DOLD AND J. BAKER FOR THE APPELLANT.</span></p>

<p style="margin: 0px; padding: 0in; border: medium; border-image: none; text-align: justify;"><span style='margin: 0px; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>DINGLE
FOOT, Q.C. AND J.G. LE QUESNE FOR THE RESPONDENT.</span></p>

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<p style="margin: 0px 0px 8px; padding: 0in; border: medium; border-image: none; text-align: justify;"><b style="mso-bidi-font-weight:normal"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>LORD DENNING, LORD MORRIS OF
BORTH-Y-GEST AND LORD HODSON</span></b></p>

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</p><p style="margin: 0px 0px 6.66px; border: medium; border-image: none; text-align: justify;"><b style="mso-bidi-font-weight:normal"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>&nbsp;</span></b></p><p>

</p><p style="margin: 0px 0px 6.66px; border: medium; border-image: none; text-align: justify;"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>Lord Hodson delivered the judgment of their Lordships. The dispute
between the parties concerns a piece of land on the Eastern bank of the Volta
River called Logloto-Sakada. The plaintiff (the respondent herein) claims a
declaration of title to the land, he being the head of the Amandja clan of
Akloba, and the defendant (the appellant herein) has counterclaimed that the
land was communal land for the town of Akloba and that, he being the overlord
of Akloba, the land is under his control and administration. By his formal
claim the plaintiff sought a declaration of title to the land and “for that
matter” the title of the Amandja clan. In the Ghana Court of Appeal his claim
was upheld as for himself and on behalf of the clan.</span></p><p>

</p><p style="margin: 0px 0px 6.66px; border: medium; border-image: none; text-align: justify;"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>In January, 1941, the defendant, in his capacity as sub-chief,
issued an order forbidding cultivation, sale or pledge of any portion of the
land without his permission according to custom. The plaintiff refused to carry
out the order as he claimed the land as his bonafide property. The defendant
then claimed £G50 damages from the plaintiff in the Provincial Commissioner’s
Court for entering the land, cultivating it, selling, pledging and giving it
under abusa and abunu tenancies without his knowledge and consent as sub-chief
of Akloba and overseer of the land. In the same proceedings the plaintiff
counterclaimed on behalf of the Amandja family £G50 damages from the defendant,
for issuing his order, seeing that the land was property founded by his
family’s great-grandfather over 100 years ago (naming the great-grandfather and
his successors) without interference by the Akloba stool and that the family
had over twelve villages on the land some of which were over fifty years old.
The magistrate who heard the case dismissed the defendant’s claim on the
footing that disobedience to the order which the defendant had made would be a
criminal offence and would not found any civil claim for damages. The
counterclaim was not mentioned in the judgment which was upheld in the
Provincial Commissioner’s Court, Eastern Province, on the 17th April, 1943.
This judgment did not settle the dispute between the parties as to the ownership
of the land.</span></p><p>

</p><p style="margin: 0px 0px 6.66px; border: medium; border-image: none; text-align: justify;"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>The next step was taken in 1944, again by the defendant. He
claimed damages from the plaintiff for trespass on the land, the acts
complained of being making plans of the land and fixing on it cement pillars
with his inscriptions thereon, thereby falsely claiming it as his property
without the knowledge and consent of the defendant. He also applied for, and on
the 26th July, 1944, obtained an interim injunction against the plaintiff
ordering him to plant no more permanent crops on the land nor to make clearing
for such purpose, nor to cut down timber until the determination of the suit.
The suit came before the magistrate on the 10th September 1946. He viewed the
land but did not conclude the case until the 26th November, 1948, when having, again
visited the land he gave judgment in favour of the plaintiff dismissing the
defendant’s claim for trespass and revoking the interim injunction previously
made. There was no counterclaim and the substantial question arising on this
appeal is whether the plaintiff is now entitled to a declaration of title to
the land on the footing that his ownership was adjudicated upon by the
magistrate who decided the trespass suit in his favour. It is necessary in
order to ascertain whether the ownership of the land was decided as a separate
issue, to set out the material part of the magistrate’s judgment. This reads as
follows:</span></p><p>

</p><p style="margin: 0px 0px 6.66px 48px; border: medium; border-image: none; text-align: justify;"><i style="mso-bidi-font-style:&#10;normal"><span style='margin: 0px; color: black; line-height: 115%; font-family: "Book Antiqua",serif; font-size: 12pt;'>“The most significant features of the parole evidence led before
the court are firstly that the plaintiff in his cross-examination did not attempt
to question the testimony of the 1st defendant’s witness that that defendant
has people, who pay rent to him, working on the land for him; that they had (in
1946) occupied the land for 15 years; that defendant had more than 14 villages
on the land but that plaintiff has no farm and no village on it; secondly, that
defendant’s 4th witness states that defendant is the successor of the persons
whom he has regarded as his landlords and to whom he had paid rent and that
plaintiff has never claimed rent from him; thirdly, that defendant’s 5th
witness states that Evi Yiboe is his landlord and is the successor of the
people whom he had (in 1946) for fifteen years regarded as his landlord and to
whom he has paid rent and that plaintiff has never claimed rent from him. “When
I visited the land on the 24th November, 1948, I was able to confirm that one
of the farms made by defendant’s 4th witness was situate within the land
claimed by plaintiff and that it contained a permanent crop, namely mature
cocoa which is in my opinion approximately 20 years old. It is admitted by
plaintiff that the farm of defendant’s 5th witness, which is also situate
within the land claimed by plaintiff, contains cocoa of similar age and
maturity. Finally defendant’s 4th witness stated that he had for 7-8 years paid
market tolls in respect of Sakada market to defendant, whose clan opened the
market about 12 years ago. It is completely contrary to all my experience of
customs in these parts that a person who had a valid claim to ownership of land
should allow another person to grant permission to third parties to plant
permanent crops or erect a market on such lands and to receive annual rents of
market tolls from these third parties. Now although the cocoa trees must have
been planted not later than the period 1928-30, the plaintiff did not</main>