ACOLATSE AND OTHERS vs. AHIABLEAME [1962]DLSC1314

Date	1962-07-13
Suit No.
Citation No.	[1962]DLSC1314

KORSAH JSC

C.J. JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

HAYFRON-BENJAMIN FOR THE APPELLANTS.

KOI LARBI FOR THE RESPONDENTS.

[1962]DLSC1314
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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:#00B0F0">ACOLATSE AND OTHERS <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:#00B0F0">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:#00B0F0">AHIABLEAME<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]<o:p></o:p>[1962] 2 GLR 34<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

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 JULY, 1962.<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">

HAYFRON-BENJAMIN
FOR THE APPELLANTS.<o:p></o:p>

KOI
LARBI FOR THE RESPONDENTS.<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., SARKODEE-ADOO
AND ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN,
J.S.C.<o:p></o:p>These are cross-appeals against a judgment dated the 22nd August,
1959, of the Lands Division of the High Court, Ho, presided over by J. L.
Minnow, Esq., Commissioner of Assize and Civil Pleas, as he then was. The
parties will be referred to shortly throughout this judgment as the plaintiffs
and defendants respectively. By his judgment the learned commissioner allowed
in part, and at the same time dismissed in part, an appeal by the defendants
against a judgment of the Anlo Native Appeal Court “A” which confirmed a
judgment of the Dzodze-Hevi-Penyi-Ave-Afiadenyigba Native Court “B” whereby the
plaintiffs claim for recovery of possession of a plot of land situate in Dzodze
described in the writ of summons, together with three houses erected thereon by
the defendants’ predecessor-in-title, Togbi Sri II, was upheld. The learned
commissioner allowed the appeal in part in that he held that the judgment
appealed against, in so far as it related to the house admitted to have been
built first out of the three, and the portion of the plot in dispute on which
it was built, was wrong, and he therefore set aside the judgment for recovery
of possession of that first built house and the plot on which it is standing.
He dismissed the appeal in part in that he held that the judgment in so far as
it related to the remaining two houses and the portions of the plot in dispute
on which they were built, was right, and he therefore affirmed the judgment for
recovery of possession of those two houses and the portions of the plot on
which they are standing. The concluding portion of his judgment against which
both parties have now expressed dissatisfaction is the following:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The judgment is varied to read thus: — Appeal in respect of the
land on which Togbi Sri II built his first house is allowed in that this court
finds that that was an absolute gift; but confirms the decision of the trial
court confirmed by the native appeal court for return of the other portions of
land on which Togbi Sri II built the two other houses, together with the
buildings, to plaintiffs-respondents-respondents.”<o:p></o:p><o:p>&nbsp;</o:p>Notice of appeal was filed on behalf of the defendants first, by
which the learned commissioner’s judgment was challenged on the grounds that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The learned commissioner was wrong in awarding portion of the
land in dispute to the plaintiffs after holding that the plaintiffs and their
family were estopped from disputing that the grant to Togbi Sri II was an
absolute gift; and<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The judgments of the native courts, which were upheld in part
by the learned commissioner, are manifestly against the weight of the evidence
and insupportable.”<o:p></o:p>Subsequently by notice of appeal filed on behalf of the plaintiffs
the judgment was challenged on the grounds that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) the learned commissioner was wrong in holding that the
respondents (plaintiffs) are estopped from asserting ownership to the land on
which the first building stands. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The learned commissioner was wrong in holding that any
development of the land by Togbi Sri II during his 40 years’ reign, operates as
an estoppel against the respondents herein. (3) Both native courts well versed
in Anlo native law and custom held that the land on which the first building
stands was not a gift but a life-interest, and it was not competent for the
learned commissioner to vary a decision based on facts and custom.”<o:p></o:p>