SMITH-MENSAH vs. YARTEL [1962]DLSC1710

Date	1962-04-09
Suit No.
Citation No.	[1962]DLSC1710

KORSAH JSC

C.J. JSC

VAN LARE JSC

SARKODEE-ADOO J.S.C.

S. BAIDOO FOR THE APPELLANT.

J.V.M. NTOW FOR THE RESPONDENT.

[1962]DLSC1710
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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">SMITH-MENSAH<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">&nbsp;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">&nbsp;YARTEL <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 238<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"> 9TH APRIL, 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">

S.
BAIDOO 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 AND
SARKODEE-ADOO, JJ.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. The
plaintiff lost in this action which he instituted in the year 1957 before the
Cape Coast Municipal Court against “the defendant to assign his reasons for
failing to account to the plaintiff as ebusuapayin of the family of Nana Tuaa
of the Ntwaa-Abadzi family of Cape Coast for tolls collected by the defendant
since fifteen years ago as caretaker for the plaintiff “. The action relates to
the Abakan village land alongside the Cape Coast—Elmina Road and raises the
question of title and ownership of the said land. The plaintiff claims that his
great-grand-uncle Kobina Tuaa of Cape Coast settled at Amamima village and
acquired the area in dispute together with its adjoining area known as Kusipra
by clearing the virgin forest. His case is that by an agreement between the
respective predecessors of the parties, the predecessor of the defendant became
the caretaker of the said land and had been paying two-thirds tolls collected
in respect of fishing canoes operating on the land to the plaintiff’s family.
The defendant is the present Odikro of Amamima village which is to the north of
Kusipra, and claims that the said Abakam village, on the sea-shore, forms the
southern portion of his stool lands. He denies paying tolls to the plaintiff’s
family in respect of the said land as such, but says that like his predecessor,
he has been paying a fixed sum of £G5 annually to the plaintiff’s predecessor
as head and representative of the Bentsir No. 1 Asafu Company of Cape Coast and
not as head of his family. The defendant’s case is that this sum of £G5 was an
agreed and fixed sum and not representing two-thirds portion of tolls collected
from Abakam village and was paid on behalf of members of the Bentsir No. 1
Asafu Company Cape Coast resident on the defendant’s stool lands as their
contribution to assist the annual performance of the fetish festival of the
said Asafu Company of which the plaintiff’s predecessor was head. It is,
however, quite plain on the evidence that this action arose only because the
defendant defaulted in the annual payments of the amount due to the plaintiff
during the preceding years, and not because he had refused to pay and he has in
fact made a payment of £G40 to the plaintiff since commencement of this action.<o:p></o:p><o:p>&nbsp;</o:p>The trial municipal court did not consider the evidence adduced by
the plaintiff in support of title sufficient upon which to declare him owner of
the land in dispute and entered judgment for the defendant.<o:p></o:p><o:p>&nbsp;</o:p>On appeal to the Land Court at Cape Coast, the learned judge
reversed the finding of the municipal court holding that the trial court failed
to appreciate the importance of a case between the representative of the
plaintiff and the defendant before the Paramount Chief’s Tribunal of Oguaa
(Cape Coast) in the year 1945 in which the defendant submitted to judgment in a
claim for £G15 described as amandzi, due and owing to the estate of the
plaintiff’s predecessor, one Kofi Amuah, who was a successor of Nana Tuaa of
the Ntwaa-Abadzi family of Cape Coast. The claim was in respect of the said
Abakam village land and represented arrears for three years, that is to say,
1942–1945, at £G5 a year amandzi. The learned judge rightly in our view held
that this piece of evidence estopped the defendant from now laying claim to the
Abakam village land, and therefore declared the family which the plaintiff
represents in this action to be owners of the land in dispute. The judge then
ordered the defendant to account to the plaintiff for “tolls properly and
fairly due and payable” and referred the matter to the municipal court to take
evidence and determine the same on the basis of plaintiff’s alleged claim of
two-thirds of the total tolls collected on canoes on the Abakam village land.<o:p></o:p><o:p>&nbsp;</o:p>We are not satisfied that the evidence clearly establishes that
according to the agreement between the predecessors of the parties the
plaintiff’s family is entitled to two-thirds of tolls in respect of canoes on
the land, as the plaintiff’s own evidence makes it quite clear that in the past
even where canoe tolls that could be collected amounted to as much as £G120 a
year, the defendant’s predecessor paid not more than £G5 a year to the
plaintiff’s predecessor without challenge. We are however satisfied that this
annual sum of £G5 was paid to the plaintiff’s predecessor in respect of the
family land of which plaintiff is now head, and that the defendant’s contention
that he and his predecessor have been paying to plaintiff’s predecessor as Supi
of the No.1 Asafu Company of Cape Coast and not as head of the plaintiff’s
family is untenable.<o:p></o:p>