W. G. BOI OWOO V. NIL ADJEI ONANO V

Foster-Sutton, P. This is an appeal from a judgment of Jackson, J., in a case arising out of the acquisition of land situate in Accra, under The Public Lands Ordinance (Cap. 113), which was required for the University College. The area acquired is shown in pink on the plan, exhibit “3”.

Details of the claims are fully discussed in the judgment of the learned trial Judge. The first appellants, who were the fifth and eighth claimants on the record the Court below, between them, claimed ownership of the whole area acquired second appellant, third claimant in the Court below, whose claim was on of the Osu Stool, also claimed ownership of the whole area; the third appellant, first claimant, claimed the whole area with the exception of a small portion to the south of the land, and the respondent, representing the Labadi I, likewise claimed ownership of the whole area.

In considering this matter I think it important to bear in mind, as the learned Judge obviously did, the provisions of section 12 of the Public Lands Ordinance which raise a presumption of ownership in favour of parties in posses of land at the time when it is purchased or compulsorily 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.^{*Page 474}It seems to me to have been proved beyond doubt that at the time of the acquisition the majority of the.1and in question was in the possession of, and being farmed by, subjects of the Labadi Stool, and the trial Judge so found. The remainder, a comparatively small area in the north-western comer, was in the possession of subjects of the Osu Stool.

The onus of satisfying the Court that they had a better title to the land than if the Labadi and Osu Stools was clearly upon the first and third appellants.

The fifth claimant, Nii Aryeetey CObblah, is the caretaker for the Ga, Gbese II and Korle Stools and is head of the Onormroko Family, three of whose members, by an indenture dated 18th February, 1890, exhibit “28”, conveyed some sixteen acres of the land in dispute to the Basel Mission. When dealing with the claims of the first appellants the learned trial Judge said:-

“But for this one isolated instance I cannot find any evidence which I can accept of any act of any members of the Onormroko Family which could be described unequivocally as being the exercise of a right as owner of the land, and certainly there is no evidence that at the date of the taking of the lands in December, 1947, they were in possession of such lands as being the owners and it is clear that whatever rights or interests in land which they may have possessed in the past and which were rights as the first settlers in waste and unoccupied land, have been lost to other parties either by express grant or long acquiescence in the use and occupation of the land; and I, do dismiss the claims made by the Gbese Stool and the Onormroko Family.”

The “isolated instance “has reference to the conveyance, exhibit “28”. I am unable to agree with the submission of these appellants that the trial Judge erred in declining to award them any compensation as it seems to me that they failed to establish a case for it. I would accordingly dismiss their appeal.

As to the claim of the third appellant, the learned trial Judge said, inter alia:-

“I have no doubt that people of the Owoo family in common with people of other families did live at Legon and were members of the Mission Community, but at the date of this acquisition in 1946 the parties in possession of these lands were Labadi and Osu farmers and there is not a title of evidence before me that any of these farmers were members of the Owoo family.

“It is upon this evidence, evidence which appears to me to have been I manufactured, that I am asked to rebut the presumption that the parties in possession of such lands as being the owners thereof are lawfully entitled to such lands and to say that the Owoo Family is so entitled.

“The claim, in my judgment, has no merit in substance whatsoever and -I do dismiss it.”

This appellant based his claim on a grant which he alleged had been made to the Owoo Family by the Ga Manche approximately 100 years ago, and his counsel complained that there is no express finding in the judgment that such a grant had not in fact been made, and he strongly urged that the acquisition proceedings, exhibit “51” , support the appellant's claim. I am not impressed with either argument. In the first case, the learned trial Judge, when dealing with the question whether there had been a grant, said:-

“It is remarkable that if there had ever been such a grant of land in this area to Owoo by the Ga Manche and if as was evidenced the village of Legon and the surrounding area was peopled by members of Owoo's family that the Basel Mission did not become acquainted with such a fact. I can only say that if such a grant had even been made to Owoo of this piece^{*Page 475}of land that in 1890 the members of his family living there appear to have been quite ignorant of that fact,” and again, “if this land had been granted to, and in possession of the Owoo ,Family, how was it that Labadi people were able to build a village at Onyatia “? It seems to me that you could hardly have a clearer finding against the alleged grant. In the second case, that dispute was settled “entirely without prejudice to any claims any of the parties may have to neighbouring lands hereafter “, and the respondents were not parties. in the proceedings. The learned trial Judge was not satisfied with the appellants' claim, and nothing that was s. at the hearing of this appeal has persuaded me that he ought to have, b .I would, therefore, also dismiss this appeal.

As between the second appellant, the Osu Stool, the respondents, the Labadi Stool, the former did not complain of the learned trial Judge's finding of fact that the Labadis, at the time of the acquisition, were in occupation of a greater area of the land in question than the Osus, but maintained that although the land originally belonged to the Labadis the latter had made an outright grant of it to the Osu Stool, and their counsel argued that there had merely been a “casual non-user” of a portion of the land by the Osus which did not affect their ownership.

The learned trial Judge, however, found that the “use and occupation “ of about 75 per cent of the area in dispute had originally been granted to the Osus by the Labadis, not an outright grant, and that when the Osus abounded the greater part of the land in or about the year 1916, under custom law the control and management of the land abandoned automatically reverted to, the Labadi Stool.

Counsel for the Osus did not dispute the general proposition that where a stool merely grants the use and occupation of its land to any person it reverts to the stool if it is abandoned, but submitted that previous acquisitions and the evidence, both documentary and oral, proved conclusively that there had been an absolute grant by the Labadi Stool to the Osu Stool.

The facts, and his reasons for coming to his conclusions, are fully set out in the judgment of the learned trial Judge and I do not think any good purpose would [lie served by a recapitulation of them. It is sufficient to say that, in my view, ere was evidence before the Court upon which it could properly reach the decision it did. The onus of proving that they had a better title to the land was upon the Osus, and they failed to satisfy the Court in this respect.

In the result the judgment appealed against awards the respondents two-thirds the assessed compensation, and the second appellant one-third, and I feel bound to say that, in my opinion, having regard to the findings of fact, the latter does not appear to me to be ungenerous. It follows that, in my view, the decision of the trial Judge in the case of this appellant ought to be upheld. I would accordingly dismiss their appeal.

Since the substantial dispute on this appeal has been between the second appellant and the respondents I would order that the former pay two-thirds of respondents' costs, fixed at £116 18s. 0d. and the first and third appellants half each of the remaining third fixed at £29 5s. 0d. each.

Coussey, J.A. I concur. Windsor-Aubrey, J. I Concur.

Appeals dismissed.