APAU II v.

DWUMAA III
[1959] GLR 140

Division: IN THE COURT OF APPEAL

Date: 23RD MARCH, 1959.
Before: KORSAH C.J., VAN LARE J.A., AND OLLENNU J.

Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation)

Ordinance—Validated judgment’s omission to prescribe which of the parties should erect boundary
pillars ordered—Costs of successful party—Circumstances in which use of assessors is obligatory on
Land Court—Prescriptive right cannot arise in despite of validated judgment.

HEADNOTES
Section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation)
Ordinance provides as follows:
(1) “Any executive decision in a dispute or matter relating to the ownership or boundaries of any land
or to tribute or fishery rights in Ashanti given, confirmed, or approved by the Chief
Commissioner prior to the commencement of this Ordinance, and officially recorded in a
Boundary

[p.141] of [1959] GLR 140

Book is hereby validated and invested with full and definite legal force and effect for all purposes
whatsoever as against all persons whomsoever the rights of the Crown alone being reserved.
(2) “If in any case such confirmation or approval was given to a decision subject to any specified
variations or modifications, such executive decision is hereby validated and invested with full and
definite legal force and effect as so varied or modified.
(3) “If in any case relating to the boundary of any land, any doubt or question shall arise as to the
correct interpretation or application of any such executive decision as aforesaid, the Court (which
expression does not include a Native Court) may cause the boundary concerned to be fixed to the
best of its ability, guided always by the principle of applying such decision as closely and with as
much precision as the Court shall consider practicable. Where a boundary is, either as of first
instance or on appeal, so fixed by the Supreme Court, no appeal shall lie from the Court’s
judgment with respect to such fixing.”

The predecessor-in-title of Nkawiehene Nana Twum Barima Apau II had obtained in 1913 “an
executive decision” against the predecessor-in-title of Inyianahinhene Nana Kwesi Dwumaa III, in a
claim for a demarcation of the boundary between the Stool lands of Nkawie and the Stool lands of
Inyinahin. This declared the boundary line between the parties, and directed “concrete boundary
pillars to be erected at stated points at the charge of Inyinahin.” The said executive decision was
subsequently officially recorded in the “Boundary Book.” The pillars had not been erected, and the
Inyinahinhene and his subjects (shortly before this action) had crossed their southern boundary as
fixed by the decision, had wrongly entered upon the Nkawiehene’s Stool land and had commenced
extensive indiscriminate cultivation of it without his consent.
The Nkawiehene accordingly instituted two separate actions against the Inyinahinhene. The first suit
(No. 2/1952) was instituted in the Land Court in Kumasi on 21st January, 1952. In it the Nkawiehene,
after reciting the executive decision, claimed “an order to carry out the order made on the 17th
February, 1913, to erect pillars at the defendant’s charge or cost in terms of the said executive
decision.”
The second suit was instituted in the Asantehene’s Court “B,” Kumasi, on 5th February, 1952. In it
the Nkawiehene, after reciting the previous decision of the Chief Commissioner’s Court, claimed (1)
Recovery of possession, (2) mense profits, and (3) perpetual injunction. The latter suit was transferred
to the Land Court in Kumasi by an order dated 19th March, 1952. The two suits were consolidated by
an order of the Land Court made on 16th July, 1952.
The defence was that the land described in the Nkawiehene’s statement of claim was Stool land
attached to the Inyinahinhene’s Stool from time immemorial. Defendant further contended that the
judgment of the Chief Commissioner’s Court, on which plaintiff relied, was not a final judgment, but
a conditional judgment, which required certain steps to be taken to make it final as regards the land in
dispute. Defendant submitted that six years having elapsed since the said judgment, plaintiff could not
sue for recovery of the land on the basis of that judgment, and that plaintiff’s claim was not
maintainable because it was statute-barred by virtue of the provisions of the Real Property Limitation
Act, 1833. Defendant further said that the allegation that he and his subjects had crossed the
boundary, entered plaintiff’s land and caused extensive indiscriminate cultivation of plaintiff’s said
Stool land without the plaintiff’s consent was wholly untrue.

[p.142] of [1959] GLR 140

He said that defendant and his people had been in possession and occupation, as owners of the land in
dispute, from time immemorial. Since the judgement of the 7th February, 1913, they had continued
their possession and occupation of the land as their own Stool property continuously for 39 years,
without any interruption or eviction by the plaintiff. They had improved the land by making cocoa
farms and villages, and also had incurred pecuniary liabilities. There had been no recent entry as such,
but merely maintenance of ownership.
The evidence disclosed a large measure of agreement as to the facts upon which the plaintiff based his
claim, namely, the validated judgment of 7th February, 1913, which declared the boundary between
plaintiff’s and defendant’s Stool lands; the direction for pillars to be erected, and also that, in spite of
repeated requests by plaintiff, the pillars had not been erected. The only issue of fact about which the
parties did not agree was the question whether (apart from the occupation by some of defendant’s
subjects who had been permitted by plaintiff to remain on the land by virtue of the said judgment)
other subjects of defendant had recently crossed the boundary, wrongfully entered upon the plaintiff’s
Stool land and commenced extensive indiscriminate cultivation of the plaintiff’s Stool land without
plaintiff’s consent. On all these issues of fact, the learned trial-Judge (Manyo-Plange J.), found in
favour of the plaintiff in both the consolidated cases. He gave judgment for the defendant in the suit
concerning the non-erection of boundary posts, since the order for their erection did not specify who
was to erect them; and he gave judgment for the plaintiff in the action for possession, etc.
The defendant appealed (Civ. App. No. 82/58). The Court dismissed the appeal. Final leave to appeal
to the Privy Council was given on the 5th October, 1959.
Held
(1) that the validated judgment recorded in the “Boundary Book” did not specify which of the
parties should erect the boundary pillars ordered by the judgment; the action against defendant
for non-erection was therefore misconceived;
(2) that the defendant being the successful party in that suit, he should have been granted his costs
therein;
(3) that since the trial-judge did not deem it desirable to try the other suit with the aid of an
assessor, and since a suit founded on rights derived from the validated decision of a court of
competent jurisdiction could not raise questions of native customary law, the judge was not
 required by section 25 (1) of the Courts Ordinance to seek the aid of an assessor;
(4) that the boundaries decision of the Chief Commissioner’s Court in 1913 remained in full force
and effect, and no occupation of plaintiff’s Stool-land by defendant’s subjects in despite of the
Commissioner’s decision could give them any prescriptive right.
Obiter: The Real Property Limitation Act, 1833 is a statute of general application.

CASES REFERRED TO
(1) Koney v. U.T.C. (2 W.A.C.A. 188);
(2) Kuntu v. Afilfa VII (12 W.A.C.A. 48);
(3) In re Hobbs, Hobbs v. Wade (36 Ch. D. 553);
(5) Bright v. Bright (9 W.A.C.A. 48).

[p.143] of [1959] GLR 140

ARGUMENTS OF COUNSEL
J. B. Danquah for appellant. There were two actions. The first having been dismissed in our favour,
we have not appealed therefrom, except as to costs. The second is for recovery of possession; in this,
judgment was delivered against us, and from that decision we appeal.
The learned Judge in his judgment showed that he realised that questions of native customary law
arose, for he said that even if of general application the Real Property Act, 1833, relied on by the
defendant, would not be applicable, “the parties being natives, and there being no contract or
transaction between the parties to this suit from which it can be implied that they agreed that their
obligations in connection with it should be exclusively regulated by English law. It is now too well
established that title by long occupation of someone else’s land with such knowledge is unknown to
native customary law.” Under section 25(1)(b) of Courts Ordinance the use of an assessor was
mandatory, and in proceeding without one the Court had no jurisdiction (Kuntu v. Afilfa VII) (12
W.A.C.A. 48).
Per cur.: The point raised is fundamental. Benjamin for respondent called upon to reply. It is
submitted that section 25 is permissive—”any cause may be tried by the Land Judge with the aid of an
assessor.”
J. B. Danquah called on to continue his argument. The passage from the judgment which has already
been cited shows that the Judge at one stage formed the opinion that native customary law was
involved. As soon as he formed that opinion it was his duty to empanel an assessor. A judge must not
evade what is stated in the law (Maxwell, “Interpretation of Statutes” 9th Edition, p. 118).
The learned Judge having dismissed one of the consolidated actions failed to award costs in respect of
that case. The appellant having succeeded, he was entitled to costs.
Section 3 of the Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation)
Ordinance provides for an executive decision. Any rights acquired under such a decision are not
customary rights, but statutory rights. They should therefore be pursued according to the principles of
English law. The learned Judge held otherwise in that part of his judgment already cited.
The trial-Judge held that the area marked light purple on the plan was occupied by new tenants in
about 1952. That finding was mistaken, for there was continuous farming there long before 1952.
It is admitted that the plaintiff obtained an inconclusive judgment in 1913, but it is submitted that if
after judgment the defendant remained in possession for thirty (30) years without paying rent, the fact
that he subsequently started to pay rent would not entitle the plaintiff to succeed unless expressly
pleaded (in re Hobbs, Hobbs v. Wade (36 Ch. D. 553); Bright v. Bright (9 W.A.C.A. 48).
There was evidence of payment of rent, but none that defendant’s subjects have been paying tribute or
rent since 1918. There is no conclusive evidence to support the finding that plaintiff had been
collecting tribute or rents.
The executive decision was a conditional judgment which was never executed, and the period of six
(6) years within which it was open to plaintiff to enforce it has elapsed.
Benjamin for respondent called on to argue with respect to costs in the first suit. The point is
conceded; quantum is left to this Court to decide.

[p.144] of [1959] GLR 140

per cur: What do you say about the finding that the Real Property Limitation Act, 1833 is not
applicable in this country?
Benjamin: There are decisions of this Court which have declared that it is applicable in certain
circumstances.

JUDGMENT OF KORSAH C.J.

(His lordship stated the facts, and proceeded)-:
It is obvious that the defendant’s case in answer to the plaintiff’s claims in both cases is based almost
exclusively on the issues of law raised in his defence, none of which can be said to be likely to
deprive the plaintiff of the benefits derived from the validated judgment of 7th February, 1913 by
virtue of section 3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions
Validation) Ordinance.
(His lordship read the section as in the headnote, and proceeded:)
With regard to the first of the two suits, viz. No. 2/1952, wherein the claim is for an order for the
defendant to carry out the order made on 7th February, 1913, to erect pillars at the defendant’s charge,
the learned Judge held that the claim is misconceived. The sentence in the validated judgment reads as
follows: “Concrete boundary pillars to be erected at the following points at the charge of Inyinahin.” I
agree with the views expressed by the learned Judge, that the sentence merely directed boundary
pillars to be erected, the cost of which was to be charged to the defendant; that there being nothing in
the order to show who should erect the pillars, if the defendant refused to erect the pillars the plaintiff
could have erected them, and demanded the cost from defendant; and that it might also have been
contemplated at the time that an administrative officer in the area would see to it that defendant
carried out the directions of the Court. The Judge finally held that he could not agree that the
defendant could be held liable by virtue of the validated decision, and thereby compelled to erect the
pillars. This, in my view, is a reasonable interpretation of the sentence contained in the said decision.
The learned Judge held, therefore, that suit No. 2/1952 was misconceived and therefore failed. This,
in my view, is a correct conclusion which should not be disturbed. But the learned Judge did not
apparently consider the question of costs with respect to this suit No. 2/1952. In view of the fact that
there were two separate claims, which were consolidated for purposes of trial, the question of costs
should have been considered separately in each of them

[p.145] of [1959] GLR 140

and unless there was good reason to the contrary the successful party in either of them could not be
deprived of his costs. No reasons have been stated, and I can find none, why in suit No. 2/1952 the
defendant, who is the successful party, should not be granted costs in that suit. I would therefore allow
the appeal with respect to costs in suit No. 2/1952, which by consent are fixed at £100 for Counsel,
other costs to be taxed.
With regard to suit No. 5/1952, the learned trial Judge found in favour of the plaintiff, and gave
judgment for the plaintiff (a) for recovery of possession, (b) for perpetual injunction and (c) for mesne
profits, in respect of which he awarded £50 damages. It is from that judgment that the appeal in suit
No. 5/1952 has been lodged.
The relief sought is stated thus:
(1) Separate costs to be awarded to defendant for his counsel in respect of L.C. 2/52, with an order
that other costs for defendant should be taxed;
(2) the judgment in transferred suit No. 5/52, to be set aside, as without jurisdiction, or the plaintiff
non-suited.
The grounds of appeal have repeated the questions of law raised in the defence, with one additional
ground contending that the learned Judge exceeded his jurisdiction in trying the suit without the aid of
an assessor or assessors. The relevant provision in the Courts Ordinance enabling a Judge sitting in
the Land Court to try a land case with the aid of assessor, or assessors is contained in section 25 of the
Courts Ordinance. Section 25, sub-section 1 reads as follows:-
“A Land Court shall be fully constituted by any one of the Land Judges but, nevertheless, any cause:
(a) may be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge
considers such a course to be desirable after hearing the representations of the parties as to such
course;
(b) shall be tried by the Land Judge with the aid of an assessor or of assessors if the Land Judge is of
opinion that a question of native customary law is involved.

In view of the fact that the claims in both suits are founded on rights derived from the validated
decision of a court of competent jurisdiction, which is not disputed, it can hardly be contended that
the principles of native customary law and tenure were essential for the determination of the
plaintiff’s claim in either, or both, of the two (2) suits which were consolidated. In any case, there is
nothing on

[p.146] of [1959] GLR 140

record to show that in the course of the proceedings the learned Judge considered it desirable to seek
the aid of an assessor; indeed, I can find nothing on the record to justify such a course.
It will be observed that, by section 25(1)(a), the law merely permits such a course if the Land Judge
deems it desirable; whereas, by section 25(1)(b) it is mandatory, but only when a question of native
customary law is essential for the determination of the claim. In my opinion, the learned Judge was
not required in the circumstances to invoke the aid of an assessor or assessors, and was therefore
competent to try the case without an assessor.
With regard to the contention that defendant’s subjects have continued to farm on the land in question
both before and after the decision of the Chief Commissioner’s Court in 1913, the learned Judge held
that the said decision is in full force and effect, and binding on defendant and his subjects. The
defendant’s subjects farming in the area since the decision have done so as tenants of plaintiff’s Stool,
and have paid tribute to plaintiff’s Stool since 1918, after the expiration of five (5) years of grace as
permitted by the decision. Such occupation, therefore, could not entitle defendant to claim any
prescriptive right or interest in the area in dispute.
In the Court below the defendant relied on the Real Property Limitation Act, 1833, which he
contended barred the claim of the plaintiff. Although the learned Judge rightly held that his finding of
fact made it unnecessary to consider this point, he nevertheless expressed the view that the Real
Property Limitation Act, 1833, is not a statute of general application, and not applicable in this
country. With the greatest respect, I am impelled on the authorities, e.g. Koney v. U.T.C. Limited (2
W.A.C.A. 188) to observe that he stated the law per incuriam with regard to the application of the
Real Property Limitation Act, 1833.
All other questions of law have been satisfactorily disposed of in the judgment of the Court below.

JUDGMENT OF VAN LARE JA.

I agree.

JUDGMENT OF OLLENNU J.
I also agree.

DECISION
For these reasons I would dismiss this appeal.