BIRIMPONG vs. BAWUAH [1994]DLSC5290

Date	1994-07-13
Suit No.	[1994 - 95] 2 G B R 837– 847 S C
Citation No.	[1994]DLSC5290

ABBAN JSC

AMUA-SEKYI JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

J K AGYEMANG (WITH HIM ADUMUA-BOSSMAN AND COL (RTD) OSEI-BOATENG) FOR THE APPELLANT.

T TOTOE FOR THE RESPONDENT.

[1994]DLSC5290
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													<main id="main" class="content" style="min-height: 60rem" >BIRIMPONG<o:p></o:p>vs.<o:p></o:p>BAWUAH<o:p></o:p>[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">

[1994 - 95] 2 G B R 837– 847&nbsp; S C&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 13 JULY 1994<o:p></o:p>

T
TOTOE FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<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">

</div>HAYFRON-BENJAMIN JSC. <o:p></o:p>This
appeal is of a very small compass. It comes to us by leave granted by the Court
of Appeal on 28 January 1991. The judgment of the High Court was largely given
in favour of the respondent. The Court of Appeal gave judgment in favour of the
respondent. The court dismissed the appellant’s claim and decreed in favour of
the respondent’s counterclaim. The respondent in his statement of case filed in
this appeal has not taken advantage of the fact that concurrent judgments had
been given against the appellant. He has been content to review the evidence
and rely heavily on traditional history. In so doing the respondent misses the
nature of the plaint which provoked this litigation.<o:p></o:p>By
his final amended writ of summons the appellant, the plaintiff claimed thus:<o:p></o:p>“The plaintiff’s claim against the
defendant is for a declaration that the plaintiff is sub-allodial owner of all
Besease lands forming boundaries with Oyokohene from Akwamohyiaye to Akanpasua
to Gyanabuo with Oyokohene on the right, Gyanabuo forming boundaries with
Besease, Oyoko and Dumakwai stools, with Bumakwai from Gyanabuo to Agyentadua
stream to Adwukawi to Abohyemu Besease land being on the left with Oyoko stool
from Abohyensu to Kra Agyeman Beposo to Wuramumuti to Asikasu, with his stool
from Mankran river Beweababan to Betenproye to Afronsemi, with Atutuohene from
Abutanko to Beposo to Hanwom stream which streak forms boundary with Besease
Abrafuo and Atutuye stools, with Abrafuo stool from Manwowam to Abakokesie-ase
to Apunayem, with Apemhaase stool from Apuayem to Nyame Bekyere to Dikyere with
Nerebehi stool from Dikyere to Awansamfo to Offin Nomye with Akrofrom odikrom
from where the rivers Offin and Dwahan meet, ie the confluence of the two
rivers to Asuofua stream and again with Okyokohene from Asuofuoa to Dumsah to
Abodo and Besease Akwamohyiaye, of which land the plaintiff is a caretaker for
the Golden Stool of Ashanti.” (Emphasis mine.)<o:p></o:p>By
the indorsement the appellant claimed Besease lands for the Golden Stool of
Ashanti. In proper language the appellant was saying that he held the lands off
the Golden Stool to which he was accountable. It is evident that what was in
issue was the allodial title or, in the words of the appellant, the
sub-allodial title to the Besease lands so delimited in the amended indorsement
on the amended writ of summons and agreed to by the respondent. The possessory
title was not in issue. This is borne out by the evidence of the relationship
between the Besease and the Hiawu stools, the latter being descended from the
sons of Nana Aboagye Asare chief of Besease, and as to the various settlements
of Hiawu subjects on various parts of the Besease stool lands.<o:p></o:p>The
learned High Court judge however misconceived the correct intendment of the
writ and indeed of the counterclaim. He considered that he was dealing with the
possessory or usufructuary title. He divided the Besease lands into various
parcels - a relief which none of the parties had asked for - and proceeded to
consider and apportion various parcels to one party or the other.<o:p></o:p>The
learned High Court judge faced with rival traditional histories stated:<o:p></o:p>“[T]he claim of each of the parties is
based on traditional history. These are all hearsay, and the evidence of each
of them and their witnesses cannot be relied upon with certainty. Certainly,
since these events took place more than a century ago it is likely that they
have been distorted to suit their interest. I cannot therefore say that I
believe this or that witness. I shall therefore decide the issues on facts,
which, by the conduct of the parties’ predecessors, have been accepted by
them.”<o:p></o:p>The
learned High Court judge’s statement is nearly a correct paraphrase of the
principle in Adjeibi-Kojo v Bonsie (1958) 3 WALR 257. But His Lordship
immediately proceeded to make a definite and fundamental finding. He wrote:<o:p></o:p>“If therefore, Nana Osei Tutu created
a stool for Aboagye Asare it cannot be true that the defendant’s family which
at that time held no office of chief could make Aboagye Asare an odikro. This
would even offend custom. I therefore reject the defendant’s claim that his
family made Aboagye Asare an odikro of Beasease. His claim that his family made
Aboagye Asare an odikro stems from his contention that they made Aboagye Asare
a caretaker of their family lands. If this contention of creating an office of
odikro for Aboagye Asare is false, then the further one of constituting him a
caretaker is equally false, and I reject it.”<o:p></o:p>The
learned High Court judge appeared by this statement to have abandoned his
reliance on the Adjeibi-Kojo principle. This principle has been applied and
explained in many decisions of this court. In the recent case of Owusu v Anane
[1994-95] GBR 718 this court in a unanimous judgment explained, per
Hayfron-Benjamin JSC that:<o:p></o:p>“Certainly the trier of fact must
examine the rival traditional histories. If in the end the trier of fact
prefers one traditional history to the other the principle does not apply. It
is only when the trier of fact runs into difficulty as to which side to believe
that in such a situation it is better to test the competing traditional
histories by recourse to recent acts, occurrences or incidents which support
the one or other case.”<o:p></o:p>Yet
in the end his Lordship returned to the principle in the Adjeibi-Kojo case,
supra, and gave judgment for the respondent save for the Asakraka and Ntabaanu
lands. It appears that these two pieces or parcels of land were excepted from
the decree in favour of the respondent because the appellant had given
u</main>