JELR 81578 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1952 14 WACA 492-494
Core Terms Beta
osu stool
public lands ordinance
learned trial judge
osu alata mantse
military authorities
mousbah captan
nii kwabena bonne iii
such lands
certificate of title
claimant nii kwabena bonne iii
considerable extent
favour of parties
mousbah captan appeal
possession of such lands
purchase money
satisfaction of the court
t absence of plans
time of such lands
trial judge
various times

Windsor-Aubrey, J. In this appeal the claimants-appellants Nii Kwabena Bonne III, Osu Alata Mantse, and Mousbah Captan appeal against the judgment Jackson, J., dismissing their claims for compensation in respect of land uired for the service of the Gold Coast Colony and Ashanti under the Public Lands Ordinance.

The area acquired is described in the certificate of title, exhibit “4”; and a thereof is shown in exhibit “7”.

The claimant Nii Kwabena Bonne III as head of the Alata Quarter of the Osu Stool, one of the four Quarters of that Stool, claimed that the whole area so acquired formed part of the land own~d by the Alata Quarter.

The claimant Mousbah Captan derived title from Nii Bonne III, who conveyed him about half the area acquired, by an indenture of conveyance dated the March, 1947, The residue of the land acquired was leased to Mousbah Captan by Nil Bonne III by an indenture lease dated the 17th March, 1947, for period of fifty years with an option of renewal for a further period of twenty-five years. The claimants-respondents claimed that their titles to the land had been derived as the result of grant made to them by the Osu Stool at various times prior to the commencement of the World War of 1939-45.

During that war the military authorities requisitioned the major portion of land acquired, but, subject to that interruption, the claimants-respondents have been in possession throughout. I am of the opinion that the temporary possession by the military authorities must be held for the purposes of the Public Lands Ordinance to be possession the respondents.”

It is important to bear in mind that section 12 of the Public Lands Ordinance raises a presumption of ownership in favour of parties in possession of land at the time when it is acquired under the Ordinance.

That section reads as follows:- “In all cases where any question shall arise respecting the title to any lands to be acquired under this Ordinance the parties in possession of such lands as being the owners thereof at the time of such lands being purchased or taken, shall be deemed to have been lawfully entitled to such lands, unless the contrary be shown to the satisfaction of the Court, and such parties shall be entitled to receive the purchase money or compensation for such lands, but without prejudice to any subsequent proceedings against such parties at the instance of any person having or alleging a better right thereto,”

Counsel for the claimant-appellant Nii Bonne III bases his claim on two grounds:- (1) that the land acquired is North of the area occupied by the Alata ,Quarter and that each Quarter has the customary right to extend its Quarter Northwards as quarter lands required for the inhabitants of its quarter ‘without reference to the Osu Stool; (2) that Nee Noi Owuo the Second Osu Mantse on behalf of the Osu Stool by a deed dated the 27th May, 1947, made between himself and the claimant appellant Mousbah Captan, confirmed all grants made to the said Mousbah Captan by all Quarters of the Osu Stool, which include, as already stated, the Alata Quarter of which first claimant-appellant is the head.

As regards ground (1), counsel relies to a considerable extent on the judgment of the West African Court of Appeal in the case of Aryee v. Odofoley (exhibit “24” ) in which the Court held that land about one mile to the North of the area acquired was land attached to the Alata Quarter. On the other hand on the same day the Court of Appeal held that land about a quarter of a mile to the South-West of the land in the Aryee v. Odofoley case did not belong to the Alata Quarter.

As the learned trial Judge pointed out these judgments were made in the t absence of plans and on an acceptance of a Native Court of findings of fact in each case.

This Court pointed out to counsel that if his contention was correct there were no limits whatsoever to the distance Northwards to which a Quarter could extend its area and that a Quarter could acquire land which was not contiguous to the area occupied by it. Counsel was not able to refute this suggestion.

The learned trial Judge dealt very fully with this aspect of the case, and I am of the opinion that he correctly held and that there was sufficient evidence of custom to support his findings:- (1) that until land is allotted to a Quarter by the Osu Stool it remains , the property of the Osu Stool;

(2) that members of a Quarter may, however, extend their Quarter by building on the land adjacent to or attached to a Quarter up to a distance of . about 80-100 feet of existing buildings.

Such land the learned trial Judge described as outskirt land.

The land acquired is not contiguous to the Alata Quarter and cannot possibly be described as outskirt land, and was therefore the property of the Osu Stool and lawfully granted by that Stool to the claimants-respondents.

As regards the deed of the 27th May, 1947, a landowner cannot derogate from his own grant. The grants to the claimants-respondents were made prior to 1939, and consequently the deed of 27th May, 1947, is of no legal effect. The onus of proving that they had a better title than the claimants-respondents who were in possession was upon the claimants-appellants, and they signally failed to discharge that onus. It follows that the decision of the trial Judge in this case in favour of the claimants-respondents ought to be upheld.

I would, accordingly, dismiss both appeals.

Foster-Sutton, P. I concur. Coussey, J.A. I concur.

Appeals dismissed.