KWESI DONKOR, head of Twidan Family of Owan v. KWESl ESSEL of Owan

Judgment:

This is an appeal from decision of the Native Court " B " of Ajumaku who, on the 26th September, 1945, made an order for the recovery of the possession of land known as "Okuradzi" and shown on the plan admitted in the Appeal Court by consent. (Exhibit "A") as being edged in pink.

The plaintiff claimed ownership of that land by his Writ, but, at the hearing, it was treated by the Court as including a demand for recovery of possession. I do not think that any injustice was done to anyone by giving judgment to ensure that all the issues involved were finally adjudicated upon.

The Native Court entertained no doubts as to who was to be believed as to the ownership of the land; and, in my judgment they were fully justified in arriving at the conclusion that the plaintiff was the owner.

Now it is clear that the Plaintiff was unaware of the traditional history of the land until comparatively recently, and I do not think it is very surprising if the Defendant a young man of about the same age, as the Plaintiff might be equally in doubt, and quite genuinely believe he had greater rights than in fact he had, especially so after so many years had passed without any tribute having been paid to the Plaintiff's family by his predecessor in title.

Now, if the title of the Defendant's family was derived from a tenure known as "Abehyem", whereby the owner takes a specified part of the oil each year, it is remarkable that there was not a title of evidence that this right had been exercised by Plaintiff's predecessor in title at any time. The Native Court do not appear to have addressed their minds to this lack of evidence, and, I can only find that this complete lack of evidence of payment of oil to the Plaintiff's family points to the conclusion that the land was not held on an "Abehyem" tenure.

The evidence tends rather to show that for some generations the Defendant's family acquired and farmed this land by the permission of the Plaintiff's family, using the palm trees for their domestic purposes, a user to which the Plaintiff, by custom, would not object, provided that that user was a reasonable one. It was a normal form of lease of land. Is it not consistent with the evidence that sensing the defendant was now making a commercial profit from the palm trees that he wished to put a stop to the defendant's activities and recover possession of the land unless he could share in those profits made out of palm trees which were undoubtedly his own property? I th