COURT OF APPEAL
DATE: 2ND APRIL, 1959.
BEFORE: KORSAH C.J., ACOLATSE J. AND SMITH J.
CASES REFERRED TO
(1) Kwamin v. Kufuor (Renner, vol., 1 pt. 2, p. 808);
(2) Antu v. Buedu (F.C. 1926-1929, p. 474);
(3) Ntrama v. Attia and anor. (1 W.A.L.R. 94);
(4) Ababio and ors. v. Darkwa and ors. (1 W.A.L.R. 124).
ARGUMENTS OF COUNSEL
Akufo-Addo for appellant. Was there a valid sale to the respondent company? Plaintiff respondent was a leader of a group of men in quest land. He obtained a grant on a tenancy basis, which he claims subsequently changed to sale. There is evidence of an agreement for sale, but none that sale was completed. There is no mention of the performance of Guaha, and there is no evidence that the Messengers had any authority to make or execute a document (Exhibit “B”) on behalf of the Omanhene and his Elders. If a sale took place it could be proved either by a conveyance or by evidence of the cutting of Guaha according to native customary law. There is no evidence that Guaha was ever cut at all. The learned Judge, relying on Exhibit B, declared that there had been a sale according to custom; but Exhibit B was not evidence of the performance of Guaha.
Sowah for respondent called on to argue whether or not there was evidence that the Guaha custom had been performed. Exhibit “B” is part of the plaintiff’s case, and suffices as a proof that Guaha was performed. Admittedly there was no evidence that anyone was deputed to go and cut Guaha, but the plaintiff relies on Exhibit “B”. Admittedly, too, Kwaku Mensah (one of the alleged signatories to Exhibit “B”) when called by the plaintiff gave evidence that the contents of Exhibit “B” were not what he “touched pen” about. But the terms of the exhibited correspondence between the parties showthat this was not a conditional sale. Apart from the question of Guaha, two Courts have found that there was a sale.
Akufo-Addo in reply. The word “sale” does not necessarily imply that the transaction was completed.
The word is used even in English law to include a conditional sale. The sale if completed must be proved. It is clear from Exhibit “F” that the plaintiff company was not in possession as owners. The learned Judge was wrong in reversing the decision of the Native Court.
JUDGMENT OF KORSAH C.J.
(His lordship stated the facts and, referring to the judgment of the learned Judge of the Land Court, proceeded:-)
With respect, I can find no evidence on record to support these categorical pronouncements which presume that evidence had been adduced to prove an absolute sale and/or conveyance according to native customary law. The reference to Trama and Guaha and to Exhibit “B,” suggest that the learned Judge accepted Exhibit “B” as proof that Trama and Guaha custom had been performed.
It will be observed that Exhibit “B” is disputed by the defendants. It purports to be a paper prepared in the forest by someone, when the messengers of the vendors went to demarcate the area which was
[p.160] of [1959] GLR 157
to be sold to plaintiff-company. The writer was not called to give evidence, nor was any literate person, alleged to be present at its preparation, called to testify to its contents. No evidence has been adduced to prove that the document, which is in English, was translated to the messengers or that they knew the contents thereof. Nor was the person who made the marks of the messengers called. It is admitted by the plaintiff that this document was not shown to the defendant when they returned from the bush, nor was the defendant even informed that any document had been executed by his messengers. It was produced by plaintiff, who says it was made by the messengers and others when they were in the forest, and given to him in the forest. He did not mention it to the defendant until producing it 15 years later at the trial of this case in the Native Court.
In Kwamin v. Kufuor (Renner, vol. 1, para 2, p. 808) it was held that there is no presumption that a native of Ashanti, who does not understand English and cannot read or write, has appreciated the meaning and effect of a legal instrument because he is alleged to have set his mark to it by way of signature.
Exhibit “B,” the intrument upon which the learned Judge based his judgment, is stated to be a “Memorandum of Pillars Agreement.” Whatever this menas, it purports to be an agreement relating to transfer of interest in or title to land. It is therefore an instrument which is liable to stamp duty. It is unstamped, and therefore could not be pleaded or admitted in evidence in any Court (vide sec. 15 of the Stamp Ordinance). Thus in Antu v Buedu (F.C. 1926-1929, p. 474) it was held that when a document which is liable to stamp duty had not been stamped, a copy thereof is inadmissible in court proceedings.
The short history of the case is that in 1934 Tei Angmor, plaintiff’s representative, expressed the desire to purchase some forest land attached to defendant’s Stool. The first defendant’s predecessor refused to sell, but offered to grant land to plaintiffs as tenants on the Abusa system. The offer was accepted, and land was accordingly granted to plaintiffs as tenants of the Stool. This relationship of landlord and tenant continued until 1941, when first defendant’s predecessor became involved in litigation with another chief, for which he required a large sum of money. He therefore decided to sell some Stool land in order to raise sufficient money for that purpose. Plaintiffs agreed to purchase land, about 100 ropes at £10 per rope; messengers were deputed to go to the forest and demarcate the area to be sold; after which, plaintiffs paid £80, and later other small sum (£25 and £64) on account. Plaintiffs say that shortly after these
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payments Exhibit “B” was made for them by representatives of the first defendant, who were deputed to fix 4 pillars on the land to mark the area sold.
In spite of repeated demands by the defendant, plaintiffs failed to pay the sum due, for which purpose the offer had been made. In consequence, the plaintiffs were not allowed to occupy the whole area which they had negotiated to purchase. In 1951 Nene Mate Kole, the Konor of Manya Krobo, Paramount Chief of the plaintiffs, wrote a letter (“Exhibit “F”) on behalf of plaintiffs to the defendant.
It reads:
“I am sending my linguist Kodjo Dooson and Tei Angmor in Company with some of my subjects who have for some years now been negotiating for land from your Stool. I understand that there is some misunderstanding perhaps due to slow action of the people in paying for the land.
“2. I regret that they ever permitted such a situation to arise and I hope that my bearers will settle every matter and that you will give them possession of the land.
“3. I trust that you will for my sake settle the matter amicably and maintain mutual confidence.”
This letter completely disproves the contention of the plaintiffs that the sale had been concluded, and the land conveyed by native custom, in 1941. It will be observed that the plaintiffs accompanied the linguist who took the letter to the defendants. It is obvious that the letter was written at their request, and that they gave their Paramount Chief the information about the transaction which the letter contained. It says “they have been negotiating for land,” not that they had already purchased land from defendants.
In order to conclude a contract for the sale of land in native customary law certain ceremonies have to be performed before ownership in the land can be transferred to a purchaser. That custom is known as the Guaha custom. (For personal property the custom is Trama.) After the conclusion of negotiations, if the parties intend the ownership to pass from vendor to purchaser, they agree on a date when the customary ceremony will be performed. They then invite witnesses for the purpose, and proceed to the land. There representatives of each party collect some twigs or branches of trees on the land, and come before the witnesses. The parties face each other, the vendor holding one end, and the purchaser the other end, of the twigs or branches. They then declare the purpose of the ceremony, i.e. that the contract of sale is now begin finally concluded, and they break the twigs into two. After this the witnesses receive witness fees, and this concludes the ceremony.
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This is not a ceremony which can be performed without the knowledge of the vendor – in this case the chief and his elders, who by native custom are the persons entitled to alienate Stool lands. It is a custom which must be strictly proved if a party alleges it in a dispute about land.
In this case plaintiffs did not allege the ceremony, nor did they call any witnesses to prove it.
Throughout the plaintiffs’ case at the trial they did not even mention it; hence the Native Court did not discuss it in its judgment. Exhibit “B” was tendered in evidence while Tei Angmor was giving evidence, and this is what he said: “When the purchase money had not been paid, the Nkwatiahene and elders wrote an agreement on the purchased land, dated 8th August, 1941, I tender in evidence.”
Then the record states. “accepted and marked Exh. ‘B’“. I have already stated reasons in this judgment why no reliance can be placed on this document. I have only to add that there is nothing in Exhibit “B” to show that the Nkwatahene, predecessor of the present defendant, wrote and/or executed it. Indeed, there is evidence that he was not informed of its existence.
In Ntrama v. Attia & anor. (1 W.A.L.R. 94) it was held:
“(i) As there was no evidence that there had been the public demarcation of boundaries required on a customary sale of land, no formal transfer of title to the plaintiff had taken place.
(ii) There was insufficient evidence to demonstrate that the agreement between the plaintiff and the defendant was one for a sale of land by which ownership passed from vendor to purchaser.”
In Ababio & ors. v. Darkwa & ors. (1 W.A.L.R. 124) it was held inter alia: “It was a requirement of custom in 1913 that a conveyance of forest land should be evidenced by the performance of the customary rites concerned with publicizing such sale. In the absence of such supporting evidence and on the particular facts of the case the conveyance of 1927 would not operate to confer a valid title on the plaintiffs, even if the Akanteng Stool had been in a position to grant such a title.”
For these reasons, I would allow this appeal, set aside the judgment of the Land Court, and restore the judgment of the Native Court, with costs for the appellants in this Court, fixed at £42 14s. 4d., and of the Court below to be taxed.
JUDGMENT OF ACOLATSE J.
I agree.
JUDGMENT OF SMITH J.
I also agree.
