Chief Kweku Dadzie & Ors V. Atta Kojo & Anor (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for declaration of title awarded by Native Tribunal and-reversed by Provincial Commissioner—Plaintiff having waited for 12 years before attempting to establish his right, it is not extinguished by lapse of time— appeal allowed.

Held : There was sufficient evidence upon which the Native Tribunal could find in Plaintiff’s favour, and their decision should not be disturbed.

(2) The Plaintiff has not lost his right to the declaration by lapse of time. There is no need to set out the facts.

W. Ward Brew for Appellant.

C. F. H. Benjamin for Respondents.

The following joint judgment was delivered

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.

The Plaintiff claimed a declaration of title to the land known as Eborhu, an account of rents received by Defendants in respect of parts of the land and an injunction to prevent the Defendants collecting any more rents. The Native Tribunal of^– the Eguafo State, in which the suit was brought, found in Plaintiff’s favoUr and gave him all he asked. The Plaintiff did not seek to recover possession of the land in occupation of first Defendant.

On appeal to the Court of the Provincial Commissioner, Central Province, the Provincial Commissioner reversed the Tribunal’s decision. The main ground for his decision was that the first Defendant bought the land under a Fi. Fa. sale and got a Certificate of Purchase. But actually all that the first Defendant bought was Kweku Mensah’s right, title and interest in the land. What Kweku Mensah’s right, title and interest was is a question of fact and the Native Tribunal found as a fact that his right, title and interest were that of a tenant only. There was abundant evidence to support that finding of fact and we see no reason to disturb it. The Tribunal also found as a fact that ” Eborhu land belongs to the Plaintiff.” This finding also is fully supported by the evidence.

The other point upon which the Provincial Commissioner based his decision was that the Plaintiff waited 12 years before doing anything to establish his right. If this were an action to recover possession, this matter of ” sleeping on his rights ” might have to be carefully considered, but it is well-establithed Native Law and Custom that rights of ownership are not extinpished by lapse of time, and consequently the Plaintiff has not kist= his right to the declaration he seeks.

Plaintiffs Counsel in this Court does not press that part of the claim which asks for an account of rents.

The appeal is allowed and the judgment of the Provincial Commissioner’s Court, including the order as to costs, is set aside and it is ordered that, if any costs have been paid by the Appellant to the Respondents under that judgment, they shall be refunded. The judgment of the Tribunal of the Paramount Chief of Egad° State is restored, except that part thereof which orders= the Defendants to render an account.

The Appellant is awarded costs in this Court assessed_ at £34 5s. 3d. but inasmuch as the judgment of the Trbunal has been varied in the manner indicated each ‘party will bear his can zosts in the Provincial Commissioner’s Court.