BRUCE v. QUARNOR & ORS.

JUDGMENT OF OLLENNU J.

(His lordship referred to the pleadings and continued:-)

The plaintiff's first witness (a daughter) under cross-examination by counsel for the first defendant stated that her father the plaintiff had apportioned the land in dispute, and had made a gift of various portions of it to his children. She stated further that the area which the first defendant is alleged to have trespassed upon is within the portion granted to her (the witness) by the plaintiff. The plaintiff's second witness, his son, also said under cross-examination that the plaintiff had given portions of the land to his children, but had reserved a portion for himself. This witness said that the portions which the second and third defendants are alleged to have trespassed upon are within the area which the plaintiff had reserved for himself.

[p.294]

Learned counsel for the first defendant submitted that in view of the evidence given by those two witnesses the plaintiff is shown to have no locus standi, particularly as regards his claim against the first defendant, because, having granted the whole of his right title and interest in the land to his children, there is nothing left for him in the land over which he could litigate. Counsel submitted that the plaintiff's claim should be dismissed on this ground.

This submission would have been very forceful were the law which I am called upon to administer in deciding this suit purely English law and nothing else. But all the parties to this suit are natives, and Section 87(1) of the Courts Ordinance expressly lays down that:

"Native law and custom not being repugnant to natural justice, equity, and good conscience ... shall be deemed to be applicable in causes and matters where the parties thereto are natives and particularly, but without derogating from their application in other cases, in causes and matters relating to the tenure and transfer of real and personal property… ”

By native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor, where the title of the grantee to the land is challenged, or where the grantee's possession is disturbed, to litigate his (the grantor's) title to the land; in other words, to prove that the right, title or interest which he purported to grant was valid.

The judgment of Petrides C.J., delivered on the 1st July, 1941 in suit- No. 26/1940, entitled Odonkor & anor. v. Allotey & anor. (and