JUDGMENT OF KORANTENG-ADDOW J
Ref: Administration of Lands Act, S.1
“The Local Council had no alienable rights in the subject-matter which it could transmit to the Defendants. The Land in dispute was stool land and by section 1 of the Administration of Lands Act, 1962, (Act 123), the management of all stool land was vested in the Minister of Local Government. Such a right did not confer any rights of ownership” [NB: this authority is now subject to Chapter 21, particularly, Art. 267, of the 1992 Constitution]
This is an appeal from the decision of the Local Court of Sefwi-Wiawso which was delivered on 20 March 1964. The facts of the case are simple. The plaintiff is the chief of Enwhia, representing the stool of Enwhia and he brought this action against the defendant who represented the members of the Yuroba Moslem community in Wiawso, claiming damages for trespass. The trespass complained of was that the defendants in spite of a warning were erecting a building (a mosque) on the plot of land belonging to the plaintiff. According to the plaintiff the land is his ancestral property and his ancestor had a dwelling house thereon.
From the evidence it appears that the said land was a grant or presumed grant from the Omanhene of Sefwi-Wiawso. The ancestral house set up on the land is no longer there. Another significant fact is that in more recent times, about thirteen years prior to the institution of this action, a public bath-house had been built on the land by the Wiawso Local Council. According to the plaintiff, the said public bath had been demolished about four years before the events which led to this action. He said in cross-examination, “There was a bath-room for the public built by the local council on the disputed plot about thirteen years ago. The bath-room was demolished about four years ago.” The defendants however maintain that the said public bath was still in existence on the land but that it was “an unpatronised public bath-room.
The Omanhene of SefwiWiawso, Nana KwadjoAduhene, the first witness for the plaintiff supported the plaintiff in his contention that the land in dispute is the ancestral property of the plaintiff. He said in his evidence that “the plot in dispute is the property of the Enwhia stool.” The plaintiff by his second witness, Kwame Nkrumah, led evidence that he has all along been in possession of the disputed land and that he had recently been fined by the court when his representative on the land failed to keep the plot tidy. There is also evidence that the plaintiff protested to the local council by letter when he found out that the council was purporting to deal with the land.
The defendants do not lay any claims to the land in their own right as owners. According to them they only obtained a grant of the land recently as a result of negotiations which started towards the end of 1963 and ended early in 1964. The land was granted to them on condition that they paid the cost of the disused public bath situate on the land, computed at £G16. In addition to that amount which they duly paid, they paid an amount of £G2 in respect of the grant. Receipts covering these payments were tendered in evidence. The defendants called the clerk of council, one Mr. Tandoh, who supported their evidence as to the mode of acquisition. How the local council got on to the land in dispute to erect the public bath some thirteen years prior to the institution of this action is unexplained by the evidence. The council does not claim any proprietary interests in the land. All the clerk of the council deposed to is how the grant came to be made and how and by what authority it was made.
The local court magistrate dismissed the plaintiff’s claim and gave judgment for the defendants. The reason for the judgment of the local court is mainly that the local council had been in long occupation of the land for twelve years without disturbance and that during the said possession they had converted the same into a sanitary area and erected a public bath thereon. According to the local court magistrate the long occupation had ripened into a sort of right in the local council from which the council should not be ousted. This right the magistrate classifies as “the right of control and management.” The local court magistrate called in aid the Limitation Act, 1939,(2 & 3 Geo. 6, c. 21) and cited Dr. Danquah’s Akan Laws. On the question of the validity of the transfer of the plot to the defendants, the magistrate held the view that the transaction was above board as it had due publicity and also because it had the blessing of the regional commissioner who acted for the Minister of Local Government in approving the transaction.
The plaintiff based this appeal on four grounds, one preliminary one and three supplementary ones. The original ground of appeal is the omnibus one of weight of evidence. The other grounds are:
“(1) The local court magistrate exceeded his jurisdiction by inquiring into and adjudicating upon the question of the value of the property in dispute when he engaged the services of a surveyor to value the land for determination by the court.
- The root of title as claimed by the defendants was based on statute, i.e. a grant by the local council exercising statutory powers; and in this respect the local court could not lawfully adjudicate on the issue as it was not within the ambit of section 27 of Act 130.
- The local court even if they had control and possession of the land in dispute by virtue of its being a public bath the moment the local council abandoned it ownership thereof reverted to the land-owner being the plaintiff-appellant and the local court magistrate erred in holding that the local council could re-allocate for a purpose other than a public use.”
At the hearing, counsel for the appellant, with leave of the court, argued the first of the supplementary grounds. The submission on the first ground was that since the local court magistrate exceeded his jurisdiction the judgment was therefore given without jurisdiction and is a nullity. The attack was levelled at the fact that when the question as to the value of the land was raised, instead of referring the question to the High Court for determination the local court magistrate caused the land to be valued by a valuer and thus in contravention of the Courts Act, 1960,(C.A. 9), s. 98 as substituted by section 27 of the Courts (Amendment) Act, 1962,(Act, 130) decided the question as to the value of the land himself.
In his reply learned counsel for the respondents contended, and rightly so, that no real question or dispute arose in this matter. Neither of the parties raised the question of jurisdiction. The question was raised by the magistrate himself, and resolved by him. On this point, as I have indicated above Mr. Baidoo is right. There is nothing on record to indicate that the value of the property was ever in dispute. Like the player of the game of nine pins the local court magistrate raised the question and knocked it down himself independently of the parties.
The second ground of appeal argued by learned counsel for the appellant was ground two of the supplementary grounds. The burden of the submission and argument thereon is that the local court was not competent to try the case as the defendants based their root of title on a statute. As against this argument and submission Mr. Baidoo contended that the defendants did not base their claim on any statute, but that this is a pure case of trespass. He submitted that even if the plaintiff had any title to the land, he had abandoned it. As this is purely a case of trespass and the defendants are in possession, the plaintiff must succeed only on proving better title a burden the plaintiff failed to discharge.
I do not accept the contention of counsel for the appellant that the respondents based their claim on a statute, and that therefore the local court is incompetent to try it. Mr. Baidoo is right in his submission on this point. This is a case sounding purely in trespass. That the plaintiff abandoned the plot is not borne out by the evidence. There is the uncontroverted evidence of the second defence witness that the plaintiff has remained in possession of the land, the part unoccupied by the public bath excluded
perhaps. The omanhene himself who should have benefited from abandonment made it abundantly clear in his evidence that he still regarded the land as the ancestral land of the plaintiff, and that settles the question of the plaintiff’s title or superior title to the land.
Learned counsel for the plaintiff then argued additional ground three. On that ground learned counsel submitted that as the local council built a public bath on a portion of the land in dispute, as soon as the council ceased to use the land for the purpose for which they obtained the land, it reverted to the original owner. Learned counsel also cited the case of Ashiemoa v. Bani  G.L.R. 130 and based thereon a submission that the fact that a town has had a new layout does not deprive any landowner of his rights.
Mr. Baidoo retorted to this argument that if there was abandonment then it worked the other way and was against the plaintiff.
As I have indicated above there is no evidence on the record which indicates how the local council came on the land. There is, however, one undeniable fact, and that is that they did not get there by purchase. At least they were licensees and acquired not an alienable right therein. I do not consider the principle of abandonment, a purely customary concept to be applicable to legal relationships between the plaintiff a “native” and the “foreign” institution of the local council which is purely a juristic creation of statute law.
Learned counsel for the plaintiff then moved on and argued the original ground that the judgment is against the weight of evidence. He submitted that there is ample evidence on record to support the ownership of the plaintiff and that the court should have entered judgment in favour of the plaintiff. To be in a position to balance the equities between the parties in this case we must know exactly what rights were acquired by the defendants with respect to the land in dispute. We have concluded as regards the rights of the plaintiff that the land is his ancestral property. If the defendants derived their title from the local council then we must go a step further and direct our inquiry to the rights the council had therein. I pointed out that the trial magistrate fought shy of classifying the said rights. He called them “the right of control and management thereof.” I think the magistrate is right there because the local council had no alienable rights in the subject-matter which it could transmit to the defendants. The land in dispute is stool land and by section 1 of the Administration of Lands Act, 1962 (Act 123), the management of all stool land is vested in the Minister of Local Government. Such a right did not confer any rights of ownership. As Akainyah J. (as he then was) aptly put it in his judgment in the case of B.P. (West Africa) Ltd. v. Boateng  1 G.L.R. 232 at p. 237:
“That power, in my view, was limited to the keeping of records of existing grants made by the stool, the concurrence of the local council in new grants and the collection of rents and other stool revenue fixed by the stool through the state council but did not include the right in the said
local council itself to make any grants or other dispositions of stool lands nor to vary the terms and conditions of grants made by the stool through the state council.”
In the above quoted case, the learned trial judge was adjudicating upon a case in which the Kwahu Local Council purportedly made a grant of a portion of stool land situate at Nkawkaw to the plaintiffs, an expatriate company of petrol dealers. The said plot of land had been granted some years earlier to the defendant by the stool owner and the local council, and through them the plaintiffs sought to defeat the rights of the defendant therein. The Kwahu Local Council purportedly made the grant by virtue of the powers of management of stool lands vested in the said council. The local court magistrate, in the present case, based his judgment partly on the ground that the council’s right to alienate is also based on the fact that the lay-out of the town of Sefwi-Wiawso was by the local council. He said, “Now the town of SefwiWiawso has had a new-look as a result of the new layout affected by the local council.” But that fact is an incident of management and not of ownership. See the case of Poku v. Akyereko  2 G.L.R. 285, S.C. where in the judgment of the court Akufo-Addo J.S.C. discusses this very point.
From the foregoing the following facts emerge:
- That at best, the right that the Sefwi-Wiawso Local Council had over the land, the subject- matter herein, was that of management.
- That the said right did not confer rights of ownership on the said council. The rights of ownership were still vested in the stool owner.
- That therefore the purported grant made by the council to the defendants passed nothing, since nemodat quod non habet.
- The fact that a town is being laid out did not take away any right originally vested in any person. On this see the cases of Ashiemoa v. Bani (supra) and Donkor v. Danso  G.L.R. 147.
- The defendants are, if anything at all trespassers on the land in dispute. In this action, sounding in trespass, the plaintiff had to establish a better title or a better right to possession. I am satisfied that the plaintiff satisfactorily established a better title, the right of the true owner against whom the possession of a trespasser cannot avail. The local court therefore erred in dismissing the plaintiff’s claim. The possession of the defendants, apart from not being undisturbed, is not of such duration and quality as to attract in its favour equitable protection. See the case of Thomas v. Holder (1946) 12 W.A.C.A. 78
In the result I allow the appeal. The judgment of Sefwi Wiawso Local Court is set aside together with the order as to costs. In the place thereof enter I judgment for the appellant on his claim and award him damages of
£G50. The costs of this appeal are assessed at 30 guineas. Costs in the court below in favour of the appellant to be taxed. Costs of the court below, if paid to be refunded. Court below to carry out.