Harragin, C.J. In the Native Court B of Ajumako the plaintiff-respondent brought an action against the defendant-appellant for the recovery of a piece or parcel of land in the Central Province.
The claim was peculiarly worded, but it is clear that the issue was clearly before the Court and was understood by all the parties. The short facts were that some sixty years ago the plaintiff-respondent’s ancestors mortgaged the piece of land in question to the ancestors of the defendant-appellant for the sum of £1, the defendant-appellant's ancestors (the mortgagees) going into possession where they have remained until the present day, and when the plaintiff-respondent tendered the £7 in order to redeem the land the defendant-appellant refused to accept it, stating that he was unaware of, any mortgage with regard to this piece of land which he claimed to be his by right of undisturbed occupation over a very long period of years.
The Native Court believed the evidence of the plaintiff-respondent particularly as he was able to show that he and his people owned a fetish on the land in question before which they performed annual ceremonial rites to the knowledge of the defendant-appellant and without asking the permission of the defendant- appellant.
The Court gave judgment for the plaintiff-respondent and ordered the defendant-appellant to give up possession to the plaintiff-respondent of the land in dispute on payment by the plaintiff-respondent of £7 redemption money.
Against this judgment the defendant-appellant appealed to the Judge of the Land Court who dismissed the appeal on the ground that it was entirely a matter of fact and not law and that there was abundant evidence to justify the Native Court in coming to the decision which it did.
From that judgment the defendant-appellant appeals to this Court. Only one ground of appeal has been seriously argued by the defendant-appellant which is cased on section 74 of Cap. 4 which directs the Courts of the Gold Coast to observe and enforce the native laws and customs proved to be in existence which are not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any Ordinance for the time being in force, from which the defendant-appellant argues that, although it is native custom that the mortgagee in possession can be ejected as soon as the mortgage debt has been paid, nevertheless it is a custom which is repugnant to natural justice and equity when the mortgagee has been in undisturbed possession for possibly sixty years. In support of this argument he cites the following authorities: Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (1), Concession Enquiry No. 38 (Bokitsi), 24th March, 1903, Renner's Gold Coast Reports, 1861-1914, p. 243; Adjuah Aduwah v. Kobina Ninson (2), Isaac CobIa Fiscian v. Henry Asumah Kwaku Nelson and Sohby Baksmaty (3). None of these dealt with the question of a mortgage under native law and custom, and it is clearly laid down in Aduwa v, Ninson, that ., the test as to whether the native law and custom should be followed or not would appear to be whether the adverse possession was of such a kind as to lead the persons so holding adversely, to believe they were the owners and as such to have incurred pecuniary responsibilities.
In this case the trial Court was satisfied that the plaintiff-respondent had yearly performed ceremonial rites to his fetish on the land in dispute and that the defendant-appellant had not recognised this fetish so that the persons holding adversely were reminded annually that the plaintiff-respondent was the owner of the land, and it was further pointed out to this Court that even from the point of view of equity the defendant-appellant had little to complain as for the sum of £7 he has had the use and occupation of the land for some sixty years, For the plaintiff-respondent the case of Agbo Kofi v. Addo Kofi (4) was cited, In that case “in or about the year 1869 A’s ancestor pledged certain lands known as the Dove lands with B’s ancestor as security for the sum of 6s. 6d,” and it was held in 1933 that A was entitled to recover those lands on repayment of the 6s. 6d. notwithstanding the long continued possession of B and his ancestors and the lapse of time.
We are of the opinion that we are bound by this authority with which we respectfully agree. We are not of the opinion that this case conflicts in any way with those cited for the defendant-appellant. A mortgagee in possession is in an entirely different position from an occupier of land who has been in possession for a long period of time and has possibly spent money developing the land in the belief that he will not be dispossessed, it matters not whether he went into occupation with the consent of the real owner or not if he has been led to regard the land as his and has spent money in improving it.
The appeal is dismissed with costs assessed at £14 14s. 0d.
Appeal dismissed.