Rose Anna Miller V. Kwad Jo Kwayisi (1930)
LawGlobal Hub Judgment Report – West African Court of Appeal
Equil_v—Acquiescence–Estoppel–Native Custom not applied—Certificate of Purchase—-Title not indefeasible.
On the 14th December, 1925, the defendant purchased certain land at a Court sale and was granted a certificate of purchase with respect thereto. The plaintiff claimed portion of this land and instituted a suit in support thereof. The Court below held that the evidence in favour of plaintiff’s claim was of the slightest and gave judgment for the defendant.
On appeal, it was held that there was overwhelming evidence of use and occupation by the plaintiff and her predecessors for upwards of 80 years, that defendant’s predecessors had acquiesced in this use and occupation, and that it would be contrary to equity to allow the application of native custom as to ownership of land. It was iurther held, in Recce-dance with previous–-docisions, that a certificate of purchase granted by the Court tines not oz itself confer an indeieasiole
. c. , Otis/ for the plaintiff-appellant.
,t. M. A kiwumi for the defendant-respondent. The following judgments were delivered :—
MICHELIN, J.
This is an appeal by the plaintiff from the judgment dated, the 17th June, 1929, of Sir Philip Crampton Smyly, late Chie. -Justice of this Colony, in favour of the defendant with costs.
On the appeal coming on for hearing before this Court, it was brought to our notice that since the date of the grant of final leave to appeal).- the-plaintiff-appellant had died, and upon the application of counsel for the appellant and with the consent of counsel for the respondent, the Court made an order substituting one Emmanuel Christopher Cojo France a nephew of the deceased and the sole executor named in the last will and testament of the deceased, in the place of the plaintiff-appellant for the purpose of cat–vying on the said appeal.
In the action in the Court below, the plaintiff by her writ of summons dated the 15th January, 1927, claimed as against the defendant :-
- a declaration of her title to all that piece or parcel of land, with the farms, produce and crops thereon situate at Akropong in the Akwapim District with boundaries and dimensions as set out in the said writ of summons ; and
- An injunction restraining the defendant, his agents, servnts, workmen and the members of his family from entering on the said land and interfering pr otherwise dealing with it,
When the action came on fox hearing before the learned Chief Justice the question of jurisdiction was raised, but he deCided to retain it fof reasons which are set out at page 18 of the record of appeal, and this right of retention has not been disputed at the hearing of the appeal before us. , • –
According to the case for the plaintiff in the Court below, it appears that she based her title to the land in dispute upon a grant made many years previously by one Kojo Bediako, a native of Akroponi in the Akwapim District to the Basel Mission Society who in turn gave this land to her father, the late Joseph Miller, in the year 1849. He remained in undisturbed possession of such land until the time of his death in the year 1689 when his widow and children, including the plaintiff, occupied it until the year 1874. FroM tliaT—date, the plaintiff had remained in undisturbed possession of the said land.
According to the case for the defendant, he based his title to the said land upon a certificate of purchase dated the 14th December, 1925, issued to him by the Court under the provisions of Order 45, Rule 34 in the suit of The. Commonwealth Trust Ltd. v. Frederick William Quasi Akuffo.
Under this certificate of purchase, the right title and interest of the judgment debtor in certain stool lands situate at Akropong which included the land now claimed by the plaintiff had been purchased by him. He further contended that the plaintiff was not entitled to the declaration sought as her father and his colleagues had only been permitted to use the land which still remained stool property until it was purchased by the defendant.
The learned Chief Justice after reviewing, at some length, the evidence adduced before him, arrived at the following findings of fact which appear at page 97 of the record.
- There is no evidence of any gift or sale of stool lands to any missionaries other than those of the Basel Mission.
- There is no evidence of the Basel Mission having ever parted with any of the lands given or sold to them.
- The evidence of use and occupation by the plaintiff of these lands is of the slightest.
- There is strong evidence of the use of these lands as stool lands without objection by the plaintiff or her representatives.
Three grounds of appeal were originally filed, but in arguing the appeal before us, Mr. Quist on behalf of the appellant restricted his submissions to the following grounds :-
“Because the said judgment was against the weight of evidence.” .
He submitted that the findings of fact upon which the judgment was based, were not supported by the evidence in the Court below and that the plaintiff and her predecessors in title having for
upwards of 80 years been in undisturbed possession of the land in Miller dispute, the plaintiff was entitled to the declaration sought in thCKwayisi writ of summons. In support of his contention, Ixeireferred the ,Court to the following cases :—Michelin, J.
The Bokitsi Concession, Renner’s Reports 239, and Lokko
v. Konklofi, Renner’s Reports 450.
Mr. Akiwumi on the other hand submitted that the judgment of the learned Chief Justice being based entirely upon findings of fact should not be disturbed by this Court.
Before considering the submissions of counsel, it will be as well for me to repeat here what has already been laid down on as many previous occasions, namely that the mere fact of obtaining a certificate of purchase from the Court under the provision
Order 45. Rule 34. does not of .1.self confer upon the Purchaser an indefeasible title to the lagd gold;
•
All that he purchases is the right title and interest- -of_ the
judgment debtor in the sato. land ; such right. Title and interest
- is always therefore capable of being challenged by ail action being brought as in the present case (See Quasie v. Ansafu, Sarbah F.C.L. 266 and Quarcoe v. Coker Divisional Court, Accra, 27-8-24).
I shall now consider the findings of fact of the learned Chief Justice.
As to (1) It was never at any time suggested throughout the evidence in the Court below that there had been a gift or sale of stool lands to any missionaries other than those of the Basel Mission. This is clear from the evidence of the Rev. Peter Hall and also from the evidence of Mr. KOranteng a foriner Omanhene of Akwapim.
In the course of Mr. Koranteng’s evidence he stated as follows
When I got on the stool, I was informed by my elders that the Basel Mission bought certain pieces of land from the stool of Akropong, when the Mission wanted land to settle upon and that it was the Missionaries who gave portions of this land to the Miller family, whom they brought from the West Indies.”
it is difficult therefore to gather how the learned Chief Justice arrived at his conclusion on this point.
As to (2) Mr. Koranteng’s evidence, as to the tradition .handed down to him, as well as the evidence of the Rev. Peter Hall on this point is against this finding of fact, but apart from such evidence, the Basel Mission not being a party to the present action, this finding of fact would not be material to the issue before the Court.
As to (3) and (4) in my opinion there was overwhelming evidence of use and occupation by the plaintiff and her predecessors in title of the lane claimed, and the evidence as to use and occupation on bchalf.of. tIaLgatil was of the slightest and only in very recent years.
Mr. Koranteng in the course of his evidence stated as ‘follows :—
Q. Do you know the-land in dispute in this case ?
A. Yes.
Q. As far as you know is it the stool property of the Omanhene of Akwapim ?
A. No it is not the stool property of the Oinanhene of Akwapim. Q. Whom have you known to be the owner of this land ?
A. The Miller family, that is the plaintiff, his brother and sister. Q. When did you get to know this ?
A. When 1 was living with them in Accra between 1907 and 1914. I ryas their tenant and I knew they had a house in Akropong on the land in dispute. I knew they were staying in Akropong before, but now they have removed to Accra, that is what they told me in Akropong.
personally knew the house there.
When 1 became Omanhene, I applied to Ophelia Bruce, a niece of, the _
plaintiff for a piece of this land for a bungalow and garden.
She agreed and I paid £20 on account for the land. I was asked to
see the caretaker at Akropong, Yao Kwatchey.
He showed me the land. 1 wrote to Rose Miller, the plaintiff to obtain her consent before I drew up a conveyance.
She refused to give her consent and I asked forof my money.”
This is strong evidence not only of use and occupation on the part of the plaintiff but also of acquiesCence on the part of the stool of Akwapim, Mr. Koranteng having been a former Omanhene of such stool. •
In the case of the Bokitsi Concession, Renner’s Reports page 243, the Full Court in the course of their judgment stated as follows :—
” Assuming, however, that they had proved at some former period it had been so attached but that the Iamfuris had without any definite permission being granted to them occupied it without paying tribute and under such circumstances as would cause them to believe themselves to be._tbsL owners of the land and to incur pecuniary responsibilities in consequence of that belief, we think it right to state that in our opinion it would be contrary to the principles of equity to allow the native law to apply in its entirety, such law being as we understand it, that the original owner of land who has not specifically divested himself of his ownership can after any length of time and under any circumstances obtain recovery of his land from persons setting up an adverse title whatever may be the detriment caused to such person by the fact that the original owner chose to sleep on his rights.
In the present case, I am of opinion that the facts are even
stronger than in the foregoing case.
It is clear from the evidence before the Court that the plaintiff and her predecessors in title for a period of upwards of eighty years were in undisturbed possession of the land in dispute, without at any time during that period paying any rent or tribute to the stool of Akwapim, and the plaintiff and her predecessors in title to the’ knowledge of the said stool exercised rights of ownership over the said land and the stool by their own conduct and acquiescence are now estopped, therefore, from disputing the
plaintiff’s title to the said land. The defendant could not by his purchase acquire any better title than the judgment debtor himself had in the said land.
With all respect to the views of the learned Chief Justice, -I am compelled to hold that the findings of fact upon which his judgment was based were not supported by the evidence before him and that the doctrine of long possession and acquiescence (in equity), as laid down by the decisions of this Court, was evidently not considered by him during the course of his judgment.
Without in any way deciding on the appellant’s rights as against any other party not claiming through the stool of Akwapirn I consider that she was entitled to a declaration of title as against the respondent.
The judgment of the court below must therefore be set aside and judgment entered In favour of the appellant for the declaration and also for the injunction sought, with costs to be taxed.
The appellant will also have the costs of this appeal –asiessed at the surn of £63 17s.
The Court below to carry out.
DEANE, C.J. THE GOLD COAST COLONY. I concur.
HOWES, J. I concur.
