NTIM v. BOATENG

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

The action resulting in this appeal was tried in the Kwahu-West Local Court constituted by a local court magistrate. The plaintiff-appellant-respondent (hereinafter called the plaintiff) by his writ of summons issued in respect of two parcels of land described therein claimed: (1) recovery of possession of such portions thereof as were [p.100] being wrongly trespassed upon by the defendants-respondents-appellants (hereinafter called the defendants) and (2) £G50 damages for trespass against the defendants jointly and severally. The said two parcels of land are situate and lying contiguous to each other and together have the appearance of forming one whole sexagonal or six-sided shaped parcel of land as appears in the plan, exhibit A. 'The parcel described in the first schedule in the summons is a relatively small one and is claimed under a deed of exchange which for some inexplicable reason was tendered in two parts, the whole of the contents except the schedule as exhibit N, and the schedule containing the descriptions of the lands, as exhibit C. The parcel described in the second schedule in the summons is a much larger one and is claimed under a customary sale and purchase. At the trial, however, the evidence appears to have been directed, for the most part, to the question of the customary sale and purchase of that larger plot. The magistrate gave judgment for the defendants against the plaintiff, holding, with regard to the small plot, that the deed of exchange was of no valid effect by reason of default in obtaining the concurrence of the local council in control of the area or district where the land is situate under section 75 of the Local Government Ordinance;1 and with regard to the large plot, that the plaintiff did not prove or establish a completed or perfected customary sale and purchase.

The plaintiff thereupon appealed to the High Court, Accra, where the appeal came to be heard by Ollennu J. (as he then was). He held that the transaction embodied in the instrument, exhibits N and O did not come within or under the purview of section 75 of the Local Government Ordinance; and that the evidence available at the trial sufficiently established a customary sale and purchase. He therefore set aside the magistrate's decision and substituted a judgment for the plaintiff granting him the recovery of possession and the £G50 damages for trespass claimed. Against that judgment the defendants have brought this appeal,