Opanin Kwame Adu V. Kwasi Kuma

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for ownership of land—Undisturbed possession for a term of Provincialyears cannot in Native Law and Custom oust an original title.

Held : Appeal allowed and judgment of Native Tribunal restored.

Court

exercisingThere is no need to set out the facts.

Appellate

Jurisdiction.K. A. Bossman for Appellant

A. M. A kizvunmi for Respondent.

The following joint judgment was delivered :—

KINGDON, C. J., NIGERIA, PETRIDES, C. J., GOLD COAST, AND YATES, J.

In this case the plaintiff sued defendant in the Tribunal of the Omanhene of New Juaben, the writ being in the following terms :—

” For that plaintiff on the 6th day of October, 1936, at Asokore in the New Juaben District and within the jurisdiction of this Tribunal did swear the lawful and recognised oath of Omanhene New Juaben alleging that the cocoa farm situate lying and being at Mpeiho New Juaben District is Plaintiff’s bona Me property and you defendant responded the oath that the said farm is defendant’s bona fide property.”

The Tribunal entered judgment for plaintiff with costs. The defendant appealed to the Court of the Provincial Commissioner, Eastern Province, who allowed the appeal and set aside the judgment of the Native Tribunal. From that decision the plaintiff has appealed to this Court. It is first to be observed that this is a dispute as to ownership only. Possession is not asked for or given. It may be that defendant is in possession and entitled so to remain, or it may be that each party is entitled by native custom to a share of the cocoa crop reaped from the land. These are questions not in issue and not decided in the suit.

The trial Court found, on evidence which justified the finding, that the land in dispute was declared to be plaintiff’s in a case between the respective parties’ privies some 16 years ago, when a boundary was fixed, and that is the basis of their judgment in plaintiff’s favour. This finding of fact should not have been, and actually was not, upset by the Provincial Commissioner’s Court. But that Court held that ‘ the principle of undisturbed possession must apply,” and since the defendant had been in undisturbed possession for about 16 years, declared in defendant’s favour.

This point was not considered in the Native Tribunal for the obvious reason that it is not within the scope of Native ideas that a

man should lose his land by long adverse possession.- As Watson, J., put it in the case of Agyenum v. Yarasoak (1918) D. & F. 1911-16, p. 56, ” It has been held by the Courts of this Colony that mere use and occupation for some time cannot oust an original title, in other words, there is no such thing is native customary laW as a prescriptive title.”

It is true that there are a number of cases where the Courts have moused relief by way of decreeing possession to a plaintiff who has slept on his rights, and others where in a dispute as to ownership, long undisturbed possession has been accepted as evidence of title. But there is none which goes so far or nearly so far as the Provincial Commissioner’s Court has gone in this case, namely to hold that land proved to have been plaintiff’s has become defendant’s because defendant has occupied it undisturbed for 16 years. That decision being contrary to well-established native custom cannot be upheld.

The appeal is accordingly allowed, the judgment of the Provincial Commissioner’s Court including the order as to costs is set aside, and the judgment of the Native Tribunal is restored.

The appellant

awarded costs in this Court assessed at £1912s. and in the Provincial Commissioner’s Court to be taxed.