Authored By: Chinweuba Ifeoma Racheal
Judgment of the lords off Judicial Committee off the privy Council delivered on the 15th of November 1938
BETWEEN
Kwamina Kuma- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Appellant
AND
Kofi Kuma – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Respondent
RELEVANT FACTS OF THE CASE AT HAND
In the present case, Kwamina Kuma, the plaintiff, sought a declaration of title to a piece of land known as Otenkyien land, located near Abrobonku, Cape Coast. The land in dispute was part of a larger tract of land claimed by Kwamina Kuma, who was the Odikro (chief) of Abrobonku. The conflict arose when Kofi Kuma, a farmer from Yowuma, attempted to sell the disputed land to Mr. Sekyi in 1926. Kwamina Kuma objected, halting the sale. Kofi Kuma sued Kwamina Kuma in the Supreme Court of the Gold Coast Colony, but the court referred the case to a native tribunal. In 1931 Kwamina Kuma initiated the case in the native tribunal of the Paramount Chief of Oguaa, seeking to affirm his ownership of the land.
The case was eventually transferred to the Divisional Court. At trial, both parties relied on traditional history and present occupation of the land. Kwamina Kuma claimed the land belonged to his stool (chieftaincy) while Kofi Kuma argued that his title derived from a follower of Ampenseni, an Abura chief. The trial court ruled in favour of Kwamina Kuma, but the West African Court of Appeal reversed the decision. Kwamina Kuma appealed to the Privy Council, which restored the decision of the trial court.
Although the Privy Council did not clearly outline issues for determination, being a court notoriously known for summary judgment since it is the last resort, the following issues can however be gleaned from this case and the judgement of the court will be discussed seriatim:
Whether there is any legitimate claim to the land in dispute based on traditional history and occupation?
Whether the Court of Appeal erred in reversing the trial Judge decision?
ARGUMENT OF THE PARTIES, JUDGMENT OF THE COURT &IT’S REASONING
ON ISSUE 1; Whether there is any legitimate claim to the land in dispute based on traditional history and occupation?
Traditional evidence of traditional history which is in practice requires not the evidence of yesterday, a few years or decades, but requires what lawyers refer to as “immemorial” evidence which means going back to ancient times in history. In the case of Wachukwu v. Owuwame[1] , the Supreme Court stated the nature of traditional evidence:
Traditional history being of nature, it is not documented. It normally boils down to the Oath of the plaintiff and his witnesses against that of the defendant with his witnesses, and courts called upon to decide as to which of the versions it Prefers. To do this, the court usually evaluates the evidence side by side … it is after evaluating these pieces of evidence that the court where possible decides on which version is preferable and why.[2]
Both parties in this case relied upon traditional history and upon present occupation and cultivation of parts of the land in suit. The plaintiff relied upon his stool being the owner of the lands within the green verge line. Both parties agree that the village of Yowuma where the defendant lives was grounded by one Ampenseni, and that Ampenseni was an Abua.
The defendant claims to derive his title from one Kweku Andoh, a follower of Ampenseni, who it was alleged was the first person to clear the virgin forest by permission of Ampenseni. The plaintiff, however, alleged that Ampenseni and his followers founded Yowuma by permission one Duku, who was a successor of the plaintiff’s ancestress, Acquah Brafu, who was the owner of the land and whose stool the Plaintiff now occupies. There seems to be no doubt that at sometime there was a war between the Abura and the Asebu, and it was alleged that the Abura were victorious. There is no evidence, however show when the war took place or to prove with any certainty which were the lands, if any from which it was alleged the Asebu were ousted. Their Lordships attention was drawn by the learned Counsel who appeared for the plaintiff to the evidence produced at the trial. In a case such as this, where the evidence as to title and boundaries rests to such a large extent upon the witnesses’ recollection as to the tradition to which they speak, it cannot be expected to be as precise and specific as in a case where documentary evidence is available.
Certain facts, however, in their Lordships’ opinion are made clear by the evidence, and they are material for the consideration of the questions in issue. The first matter to which reference may be made is that, whether the plaintiff’s stool embraces the whole area of land enclosed by the green verge on the plan (as to which their Lordships express. No opinion) or not, the evidence goes to show that the plaintiff’s stool does appear to comprise land in the immediate vicinity of the land which is in dispute, on the east, south and west. There is further the evidence of Amanfi III who is the Omanhene of Asebu whose territory is to the north and east of the alleged boundary of the lands belonging to the plaintiff’s stool. His evidence in their Lordships opinion is important. He is obviously a man of position, and he was speaking about matters which would naturally be of great interest to him viz. : the boundaries of his territory and he would know the tradition relating to them: He said that the Asebu lands form boundary with the plaintiff’s land which includes Yowuma village, and that the said boundary was demarcated before Yowuma was built. If the above-mentioned evidence be accepted it appears that the plaintiff’s stool comprises some lands on all sides of the portion of land in dispute. It is further to be noted that the area in dispute consists of farm land only and that there is no village, not even huts, upon it. In view of the above mentioned evidence it is difficult to accept the traditional history alleged by the defendant that it was land acquired by an ancestor of the defendant as the result of a war waged by the Abura against the Asebu Sanderson many years ago.
With regards to the defendant’s occupation of the land, the defendant assertion that his ancestors had been in occupation of the land in suit for six generations without let or hindrance by the plaintiff or his ancestors, that they have never paid tribute, performed acts of fealty, or given drink to the plaintiff for permission to the plaintiff or his predecessors. Can this really establish ownership?
In native jurisprudence usufructuary rights is stark point. “All the members of the community, village or family have an equal right to the lands, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is some-times called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger.”[3] It appears therefore that among natives, occupation of land is frequently allowed but this does not automatically confer ownership, in some cases although evidence of occupation may be deemed essential but as in this case the argument of occupation does not necessarily undermine the plaintiff’s claim neither does it establish the defendant’s title.
Their Lordships were not persuaded by the evidence as to the length or continuance occupation by the defendant and his predecessors, but even assuming that the defendant and his predecessors have been to some extent in occupation of parts of the land in question, for some considerable time without paying tribute to the plaintiff or his predecessors, such possession in Their Lordships’ opinion is not conclusive evidence of the defendant’s title. This is because the lack of tribute payment does not necessarily imply ownership and the defendant’s occupation even if prolonged does not automatically establish title. Therefore, while cultivation and occupation of land may be relevant factors in determining ownership, they may not be conclusive. The court will consider all the evidence presented and make a decision based on the specific circumstances of each case.
ON ISSUE 2; Whether the Court of Appeal erred in reversing the trial Judge decision?
In actions for declaration of title to land, certain well settled principles of law which have guided the Courts and must be kept constantly in mind, the plaintiff must rely on the strength of his own case and not on the weakness of the defendants case. If this onus is not discharged, the weakness of the defendants case will not help him.[4]
In this case, on the basis of traditional history as stated above the plaintiff’s stool (traditional authority) owns the land. The plaintiff admits that Apentsin founded Wenua, and that he was an Abura, but says Apentsin built Wenua with the permission of one Duku, the successor to Acquah Brafu, and that the defendant and his ancestors have farmed upon the land in dispute only with the permission of plaintiff and his ancestors who have always exercised rights of ownership. In support of this the plaintiff called several witnesses, who said they received permission from plaintiff to farm. Also it is most important to observe that each of them admits having given plaintiff “Drink” for permission to do so. Two other acts of ownership by the plaintiff were alleged and the defendant’s traditional history and claim of acquisition through war were not valid. The defendant’s occupation and cultivation of the land without paying tribute did not establish title. The 1899 and 1926 incidents, where the plaintiff’s predecessors prevented proposed sales of the land, were material evidence supporting the plaintiff’s title.
The Court of Appeal’s reversal of the trial judge’s decision was erroneous because;
It failed to properly consider the traditional history and evidence presented by the plaintiff.
It misinterpreted the significance of the defendant’s occupation and cultivation of the land.
It disregarded the importance of the 1899 and 1926 incidents.
The Privy Council recognised the error made by the court of appeal restored the trial judge’s decision, thereby setting aside the decision of the Court of Appeal also declaring the plaintiff’s title to the disputed land and ordering the defendant to pay costs in the Court of Appeal and of this appeal.
OPINION: DECISION OF THE COURT IN SCRUTINY
In Nigeria, the locus classicus case of Idundun v. Okumagba[5], serves to shed light as to the various ways in which ownership of land can be established, part of which is oral traditional of history of the land. This is infact given statutory Oxygen in Section 66 of the Evidence Act[6] as easy as this sounds, it requires a lot of evidence of facts than law which can sometimes lead to conflict. The court is therefore bound to look at the person with clear title and cogent evidence.
Upon a painstaking analysis of the case at hand, the Privy Council is infact accurate in its judgment considering the evidence before it. The thin line between ownership and possession was carefully drawn and the defendant having not established ownership or title but unfortunately for them only possession lost the case on a preponderance of evidence.
Reference(S):
[1] (2011) 46 NSCQR1 (SC)
[2] Ibid 39-40
[3] C.J Rayner’s 1989 Report on Land Tenure in West Africa.
[4] Lyell v. Kennedy (1882) 20 Ch.D. 484 at 490 per Brett, LJ. Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336 per Webber, C.J. at 337; Lee, C.J. in Martin v. Strachan (1744) 5 Term Rep. 107n at 110n.
[5] Idundun v Okumagba, (1976) 9-10 SC 227.
[6] Evidence Act (2011) as Amended(2023)
