DIVISION: IN THE SUPREME COURT
DATE: 23RD DECEMBER, 1963
BEFORE: SAKODEE-ADOO, OLLENNU AND BLAY JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a decision of the Land Court, Accra, wherein the trial judge upheld the plaintiff’s claim
for a declaration of title to a certain farm, damages for trespass and account of proceeds from and
recovery of possession of the farm.
COUNSEL
G. Ampaw for the appellants.
Dr. de Graft-Johnson for the respondent.
JUDGMENT OF OLLENNU J.S.C.
The respondent, hereafter called the plaintiff, a subject of the Osino stool, and a sister to a former
occupant of the said stool, obtained judgment in the High Court against the Osino stool and the receiver
of the Akim Abuakwa stool revenue for a declaration of title to a certain cocoa farm, damages for trespass
to, account of proceeds from, and recovery of possession of the said farm. Her case is that the said farm
was cultivated by a stranger, one Amma Afreh, as a foodstuff farm, with the permission of the stool.
Amma Afreh, with the consent of the stool made a gift of it, then a fallow, to her (the plaintiff’s) sister
one Oforiwaah. The said Oforiwaah in turn subsequently, that is 25 years ago, made a gift of the same
farm to her; she alleged that she has been in
[p.598] of [1963] 2 GLR 596
possession of the said farm since then, and has improved and developed it from a fallow foodstuff farm to
a flourishing cocoa farm. The appellants, hereafter called the defendants, agreed that Amma Afreh once
occupied the farm; their case however is that Amma Afreh inherited the same from a brother of hers, one
Owurapa. They denied that Amma Afreh made a gift of the farm to Oforiwaah or to the plaintiff. The
defence however did not dispute the fact that the plaintiff has been in possession and occupation of the
farm for 25 years or more; they gave two explanations for it: one was that Amma Afreh died possessed of
the farm, and the same became vested in the stool by customary law as Amma Afreh, a stranger, left no successor, and thereupon, the plaintiff’s brother, the then occupant of the stool, secretly gave the farm to the plaintiff without the knowledge of the elders of the stool; that this fraud on the stool was only discovered in 1959, and made the subject of one of a number of charges upon which the elders deposed the plaintiff’s brother. Another explanation they gave was that Amma Afreh made a gift of the farm to
someone without obtaining the consent of the stool, whereupon she forfeited her right to the farm, to the
stool, and the plaintiff thereafter occupied the same as an abusa tenant of the stool, and had been paying
rents for the same ever since.
The defendants appealed against the judgment of the High Court. It must be observed from the outset that
there is no onus upon the defendant to disprove a claim made by a plaintiff, so that, however, conflicting
or unsatisfactory his evidence may be, the same cannot avail the plaintiff; evidence given by the defence
only becomes important in a case either where it can upset the balance of probabilities which the
plaintiff’s evidence might have created in the plaintiff’s favour, or where it tends to corroborate evidence
of the plaintiff, or tends to show that evidence led on behalf of the plaintiff is true.
Upon those principles it is clear that the issues which call for determination in this appeal are (a) whether
the plaintiff proved the gift from Amma Afreh to Oforiwaah and from Oforiwaa to herself, the plaintiff,
with the standard of proof that the law requires in civil cases, and if so, (b) whether the evidence led for
the defendants is such as can make inroads upon and upset an otherwise strong case for the plaintiff.
Two grounds of appeal were argued: (i) That the Land Court judge misdirected himself on Akim
Abuakwa customary law relating to farms cultivated by a deceased stranger, and (ii) that the judgment of
the Land Court is against the weight of evidence.
The arguments advanced on the first ground are irrelevant because (i) the customary law as to succession
to a deceased stranger is not in dispute; and (ii) the preponderance of the evidence on record shows that
the appellant was in possession of the farm in dispute exercising acts of ownership over it some time
before the death of Amma Afreh, and therefore Amma Afreh could not have died possessed of it.
On the second ground counsel for the defendants submitted that being a stranger, Amma Afreh could not
dispose by way of gift, of a farm she made on stool land without the consent and concurrence of the stool,
and
[p.599] of [1963] 2 GLR 596
that the plaintiff failed to call any of the persons she alleged were present at the making of the gift to
testify on her behalf to prove that the gift was made with the consent of the stool. In reply to this
submission counsel for the plaintiff pointed out that the plaintiff called one of the eye-witnesses to the
gift, and that she could not call any of the others because they are the very people against whom the
plaintiff was litigating her title, namely, the elders of the defendants’ stool.
In our opinion the answer given by the plaintiff ‘s counsel is sound. It will be nothing but madness for a
party to a suit to rely upon his opponent to prove his case for him; where the only witnesses who could
give oral evidence of a party’s case are his opponents, the court should not regard his failure to call such
persons as fatal; in such circumstances the court will look at other available and material evidence on the
record, and if those prove to be sufficient to establish the averment, uphold the averment.
In this case the plaintiff herself gave evidence of the said gift; her evidence in that behalf was
corroborated in all material respects by her first witness. That evidence was not seriously challenged; the
strongest criticism made of it is that the plaintiff’s said witness is her nephew, son of her sister Oforiwaah
aforesaid. The evidence that the gift was made publicly, with the consent of the stool, is corroborated by
the fact that the plaintiff has occupied the farm in dispute all this quarter of a century exercising
ownership of it without let or hindrance to the full knowledge of the stool. In those circumstances, unless otherwise satisfactorily explained, the said occupation of the farm by the plaintiff can only be consistent
with her allegation that she got it by gift, and that the gift was made with the knowledge and consent of
the stool.
Now as already observed, the defendant’s explanation is that the plaintiff occupied the farm as an abusa
tenant of the stool and not as an owner thereof. Unfortunately that explanation was proved, both by oral
and documentary evidence tendered on behalf of the defendant himself, to be untrue. The defence
therefore failed to shake the strong probability of the truth of the plaintiff’s case as established by the
evidence tendered on her behalf.
In a civil case, the decision must be upon the balance of probabilities established by preponderance of the
evidence. The preponderance of the evidence here is clearly in favour of the plaintiff. The High Court was
therefore fully justified in granting the plaintiff the reliefs she sought.
For the above reasons. I would dismiss the appeal.
JUDGMENT OF SARKODEE-ADOO J.S.C.
I agree.
JUDGMENT OF BLAY J. S. C
I also agree.
DECISION
Appeal dismissed.
K.T.
