AKYEA-DJAMSON v. DUAGBOR AND OTHERS
1989
SUPREME COURT
GHANA
CORAM
- ADADE
- TAYLOR
- FRANCOIS
- WUAKU
- AMUA-SEKYI JJ.S.C
Areas of Law
- Property and Real Estate Law
- Evidence Law
- Civil Procedure
- Equity and Trusts
1989
SUPREME COURT
GHANA
CORAM
AI Generated Summary
As a final appellate court of last resort, the Supreme Court addressed a recurring customary land issue from Fintey in the Duffor paramountcy. Mr. Akyea-Djamson bought land from the Asilevi family in May 1970 and registered his conveyance (No. 1630/1970). In May 1973, the sons of Aaron Kodey entered the land to harvest wood for charcoal, asserting that the land belonged to the Kodey family and that the Asilevis could not alienate without Kodey elders’ consent. The co-defendant, a paramount chief who settled in Fintey only in 1935, admitted Duffor lands are family lands and failed to prove root of title. The majority emphasized prior possession and the evidentiary presumption created by registration under Act 122, shifting the burden to the co-defendant. Applying Browne v. Dunn and s.119(a), the court held Kodey was estopped due to failure to cross-examine on a town meeting where he recommended the sale. Prior suits relied upon by the defendants were deemed non-dispositive. The appeal was allowed, judgment entered for the plaintiff, and the counterclaim dismissed.
JUDGMENT OF TAYLOR J.S.C.
This case involves very simple issues which are of recurring significance in our courts. And although it is a really straightforward case, it raises the usual problems and poses some questions which are of fundamental importance in the customary land law system of Ghana. To appreciate the nature of the problems and attempt to answer the questions posed, it is necessary to appraise the facts grounding the rival claims of the parties and in the process to identify the nature of the controversy which we have been called upon to resolve as a final appellate court of last resort.
The appellant, Mr. Akyea-Djamson, who was the plaintiff in the circuit court, is not a native of Fintey, a village in the Duffor paramountcy. He however bought a piece of land, the subject matter of the dispute, from the Asilevi family which hails from Fintey. The Asilevi family led evidence that their “ancestors had settled on the land from time immemorial.” Apart from the land on which they thus settled, the Asilevi family conceded in evidence that they also bought some lands after they had settled. The lands were bought from the Anyesuhene but these lands are not the subject matter of the dispute. In evidence they distinctly deposed as follows: “It is a portion of the land we settled on that was sold to the plaintiff.”
The plaintiff was not resident in Fintey and on making inquiries and satisfying himself that the Asilevi family of Fintey had title, he paid the purchase money and took a conveyance on 14 May 1970 and had it registered in the Lands Registry as document No. 1630/1970. The respondent who was the co-defendant at the circuit court is in reality the substantive defendant, for the two defendants who were sued were his sons and he authorised them to enter the land and they [p.227] entered the said land in May 1973, three years after the plaintiff’s purchase.
When the plaintiff sued the two defendants on 21 June 1973 describing and claiming the land in dispute as property the title to which he had obtained from the Asilevi family of Fintey, the two defendants pleaded in paragraphs 3-5 of their statement of defence, inter alia, as follows:
“3. The land described in the plaintiff’s statement of claim is the bona fide property of the Kodey family and can only be transferred with the knowledge, consent and concurrence of the principal elders and members of the Kodey family of Fintey.
4. The Asilevi family from whom the plaintiff claims to have o