ADAMTEY vs. SHARDEY (CONSOLIDATED) [1973] 2 GLR 320

[p.321] of [1973] 2 GLR 320

CASE REFERRED TO

British Thomson-Houston Co., Ltd. v. British Insulated and Helsby Cables, Ltd. [1924] 2 Ch. 160; 93 L.J.Ch. 467; 131 L.T. 688; 40 T.L.R. 581; 68 S.J. 560; 41 R.P.C. 345, C.A.

NATURE OF PROCEEDINGS

APPEAL AND CROSS-APPEAL from the judgment of the High Court, Accra, granting a declaration of title to land to the plaintiff. The facts are sufficiently stated in the judgment of Sowah J.A.

COUNSEL

E. D. Kom for the appellant.

W. A. N. Adumua-Bossman for the respondent.

JUDGMENT OF SOWAH J.A.

This is an appeal and cross-appeal from the judgment of the High Court, Accra, in which it granted a declaration of title to a portion of land claimed by the plaintiff, damages for trespass and an injunction restraining the defendant, his agents and servants but dismissed the claim of the plaintiff for forfeiture of the area occupied by the defendant. The parties will hereinafter be referred to as the plaintiff and the defendant as both parties have appealed from the decision.

The subject-matter of this dispute is a large piece of land situate at Somanya in the Yilo Krobo State. The plaintiff contended that when the Krobos were driven from their original abode in the Krobo Hills his great grandfather, called Narh Kleki was the first to settle on the land in dispute. Since that first settlement, the plaintiff’s family had been in continuous occupation and during the period, had granted leave and licence to other families including the defendant’s family to occupy portions of the land. The defendant’s family in recent years has been encroaching upon land not allotted to them, has set up an adverse claim to the plaintiff’s family’s title and also the defendant has been erecting a building on the land outside his family’s grant. The defendant claimed that his ancestor was the first to settle in the area and that the plaintiffs family were subsequent arrivals; he denied that the area on which he was building fell within the plaintiff’s land.

It appeared that the predecessors of the parties had about 1952 litigated inconclusively over the area; thus in the course of the plaintiff’s evidence-in-chief, the proceedings and judgment in the previous case were tendered as exhibit A without objection from counsel. It ought to be added that when a survey was ordered of the area, one of the survey instructions was that the surveyor should from the inspection report delineate the area then in dispute. After a review of the evidence before him, the learned High Court judge concluded that the plaintiff’s ancestor was the first to settle on the land and that the defendant’s family were later arrivals who were apportioned land to settle on by the plaintiff’s family. He held further that the land was an absolute gift to the defendant’s family and dismissed the claim for forfeiture. The learned judge found that the small piece of land on which the building was erected, that is, the immediate cause of action, was outside the area granted to the defendant’s family and within the plaintiff’s land.

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Both the plaintiff and the defendant immediately appealed against the findings and numerous grounds of appeal were filed by the parties. In this court only one ground of appeal has been urged and it is that the learned judge erred in receiving the whole of the proceedings in exhibit A and placing reliance on the said proceedings and the judgment inasmuch as the findings and judgment of the native court were not confirmed on appeal by the High Court. The plaintiff in exhibit A was non-suited. At the time, where a judgment merely non-suits a plaintiff, he can bring a fresh action in respect of the subject matter against the same defendant.

Counsel for the defendant in this appeal argued that exhibit A was merely tendered in these proceedings for the purpose of establishing the estoppel raised in the pleadings by the parties but the learned judge made extensive use of it in such a manner as if the whole of the proceedings were a judgment of the native court and were binding on the parties. He conceded, however, that that use enured to his benefit as the learned trial judge was able to find what the customary law was on the matter.

Counsel for the plaintiff urged that there was no evidence on record as to what constituted a gift of land in Krobo custom and that the learned judge obtained that knowledge by reference to the judgment in exhibit A and that in so far as he allowed himself to be influenced by that judgment which ended in a non-suit of the plaintiff he erred.

It ought to be observed that it was the plaintiff who tendered exhibit A without limiting the use that could be made of it. He used it extensively and was able to establish that the defendant’s predecessors had admitted in exhibit A that the whole of the land was first settled upon by the plaintiff’s ancestor; and further, the portion occupied by the defendant’s family was a grant from the plaintiff’s family.

It seems to me that this is one of the legitimate uses which could be made of the proceedings, exhibit A. Clearly if the defendant’s predecessors had stated in the earlier suit that the whole area was first settled upon by the plaintiff, and that his family received a grant of the portion occupied by them, it is a clear admission against interest. Admissions in a prior suit can always be given in evidence when made by a party or in this case his predecessor who was at the time head of his family. Atkin L.J. in British Thomson-Houston Co., Ltd. v. British Insulated and Helsby Cables, Ltd. [1924] 2 Ch. 160 stated at p. 168, C.A. that:

“The first matter that appears material is that admissions can only be given in evidence when made by a party, or his agent authorised to make the admission, and that the evidence of a witness is not a statement made by the party, and that the witness is not necessarily, or indeed usually, an agent of the party at all, either to make an admission or for any other purpose.”

Thus the learned judge was clearly right in relying on it for his finding that the plaintiff’s family were the original settlers on the land.

The second complaint, this time originating from the plaintiff who had made quite extensive use of the proceedings in exhibit A was that the

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learned judge adopted the pronouncement of the customary law relating to a gift of land in the Yilo Krobo area. It is difficult to follow the argument in this respect. Exhibit A contained the proceedings and judgment of the then native court in the area, and the court ought to have been conversant with customs within that area. The native court in the judgment pronounced the law on gifts of land in the Krobo area. The learned judge is entitled to revert to it and if he considers it a proper statement of the law to adopt it. Learned counsel has not been able to fault that pronouncement of the law. I am of the considered opinion that the learned judge was right in so doing.

There does not appear to be much merit in the appeal and cross-appeal which are both dismissed.

JUDGMENT OF KINGSLEY-NYINAH J.A.

I agree.

JUDGMENT OF ANNAN J.A. I also agree.

DECISION Appeal and cross-appeal dismissed. S. O.