COURT OF APPEAL, ACCRA
Date: 3 MARCH 1975
LASSEY, SOWAH AND FRANCOIS JJ.A.
CASES REFERRED TO
(1) Quashie v. Baidoe, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 153.
(2) Dodoo v. Gyansa [1960] G.L.R. 9.
(3) Gyamfi v. Badu [1963] 2 G.L.R. 596, S.C.
(4) Summey v. Yohuno [1962] 1 G.L.R. 160, S.C.
(5) Yeboah v. Tse (1957) 3 W.A.L.R. 299.
(6) Mensah v. Kyei, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 97.
(7) Atuahene v. Amofa, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a circuit court in an action for a declaration of title to certain properties alleged to have been gifted to the appellants by their father during his lifetime. The facts are fully stated in the judgment of Francois J.A.
COUNSEL
Ampiah for the appellants.
Sampson for the respondent.
JUDGMENT OF FRANCOIS J.A.
This is an appeal from the decision of the circuit judge, Cape Coast, upholding the plaintiff-respondent’s claim to certain intestate property of the late Kwadwo Enninful (Enyinful), and rejecting the defendants-appellants allegations of a gift to them of the same.
The facts briefly are as follows: The late Kwadwo Enninful was a successful trader and farmer who left his native Kyebi to reside at Bobikuma where with the help of his sons, the appellants herein, he acquired and cultivated a large number of farms. At his death, his family which had kept no close contact with him in his lifetime, suddenly appeared to lay claim to his property.
The first successor to the appellants’ father was one Kobina Ehuron. His period of stewardship was not characterised by any confrontation
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with the appellants. On the contrary, extremely cordial relations were forged and maintained between them. During their father’s lifetime, the appellants lived openly in a house and cultivated certain farms. They claim the said house and farms were gifts inter vivos made to them by their father. It is on record that Ehuron did not challenge them in their enjoyment of these properties. Three years after Ehuron’s death the scene dramatically changed; for on the respondent’s appointment as customary successor, he set out on a crusade to recover Enninful’s properties. This brought him into headlong conflict with the appellants who would not relinquish their hold on what they claimed to be bona fide gifts and to which the sweat of their labour made them doubly entitled.
The issue which the learned circuit judge was called upon to resolve was not complex. It involved the determination whether or not specific properties had been given to the appellants by way of gift by their late father. The judgment of the court however turned on whether any gift had been given to the appellants at all. It is this lack of appreciation of the appellants’ case that has evoked this appeal. It is necessary therefore to set out portions of the pleadings for a clear understanding of the respective cases of the parties.
To begin with, in his writ, the respondent, sought among other reliefs, a declaration of title to four parcels of land, namely Etwiekyir land, Abutua land, Kukuta land and Agona Bobikuma land with a building thereon. In a statement of claim which set out and described the late Enninful’s properties as self-acquired and therefore by devolution, the rightful property of the respondent as successor, the following important averments were made. They appear in paragraphs (6) and (7), and read as follows:
“(6) The defendants, sons of the said Kwadwo Enninful, were given part of their father’s estate but have sold same and have entered the properties in dispute without the consent and authority of the plaintiff.
(7) The defendants have been plucking cocoa from the farms in dispute and have been appropriating the proceeds thereof without accounting to the plaintiff.”
The respondent’s complaint consequently was that the appellants had indeed been given part of their late father’s estate, but had squandered their patrimony and had then appropriated property that was by operation of customary law, family property. To this the appellants replied in paragraphs (5) and (6) of their defence as follows:
“(5) The defendants aver further that after their father Enninful had purchased the virgin forest, he allocated portion of the land to the defendants to cultivate cocoa farm thereon. He purchased the building in dispute and also granted same to the defendants. This was about 35 years ago. When their individual cocoa farms were matured Enninful customarily gifted the farms as well as the building to the defendants who reciprocally made the customary thanks offering and took complete control of the various
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properties and have been in possession since without any interference from any member of Enninful’s family.
(6) Further, that both Ehuron and the plaintiff were aware of the gift and have not at any time since Eninnful’s death laid claim to these properties.”
Curiously however in paragraph (3) of his reply, the respondent pleaded, “The plaintiff denies that any gift was made to the defendants or that he or Ehuron was aware of any alleged gift,” a departure about which I shall comment later.
The main issues which were set down in the summons for directions for determination were:
“(a) Whether or not Kwadwo Enninful made any gift of the properties in dispute to the defendants.
(b) Whether or not the plaintiff is estopped from claiming ownership of the said properties.”
Though on the pleadings, as observed before, the respondent seemed to prevaricate on the issue of a gift, in his evidence he stated, “During the lifetime of my late uncle, he gave some of the property to his eldest children who are the defendants.” When the respondent was questioned on the issue of gift he replied as follows:
“Q. You are saying that your late uncle gave the defendants some of the farms.
A. Yes.
Q. Your family is aware of this fact..
A. Yes; they know.”
The respondent’s second witness in confirmation stated that Enninful “made a gift of one farm and one house to his children.”
The respondent’s case however was that the appellants received no gifts of the properties in dispute, otherwise their late father would have surrendered to them the title deeds covering them. It seems to me the whole case could founder or flourish on the truth of this assertion. It calls therefore for a closer scrutiny. It could not be denied that the late Enninful kept all the title deeds to his properties in a safe, and after his death, Ehuron who was literate and who on the evidence must have seen them, retained custody of them in the said safe.
The respondent could not satisfactorily account for the retention in the safe of the title deeds to the two houses, one of which he admitted had been given to the appellants; nor could he explain the presence in the said safe of a document relating to a farm at Kwaman Kwamu which was admittedly gifted to the appellants. The thesis that the successor was entitled to all properties whose title deeds were in the safe would seem to have been exploded. The appellants explained how the documents came to be in the safe and urged that considerations of security impelled their retention. That it was a mutual agreement of convenience and not a unilateral act of either Enninful or Ehuron in the exercise of ownership, was demonstrated
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by the appellants’ ability to call for their documents when they needed them as occurred in Ehuron’s time. The appellants therefore urge that the combination of the two matters, that is, the retention of the title deeds by their father’s successor on the one hand, and the control and possession of the properties by them on the other, sufficiently testified to the validity of the gifts and Ehuron’s acceptance of them.
This proposition found no favour with the trial circuit judge who held that such unchallenged possession could not adversely affect the family, the benign influence of blood ties supervening. With all due deference she apparently overlooked the case of Quashie v. Baidoe, Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 153 where it was held that an intestate’s dealing with his property including the retention of title deeds, did not ipso facto detract from a prior gift to his children.
A matter which compels unfavourable comment is the failure of the respondent’s family to put him in physical control of any of the properties he succeeded to. Even the head of family had to confess that he did “not know what properties or farms were self-acquired by Enninful.” The respondent’s suit had been instituted, according to him, to ascertain the extent of the deceased’s property, for on appointment he had merely been told to “take all Enninful had left.” There was no identification of the properties and no handing over of any keys to the house claimed.
The circuit judge considered this aspect of the case and came to the following conclusion:
“I have considered the curious situation which would arise should I enter judgment for the plaintiff. The plaintiff does not even know where these farms are situate. If he succeeds, he would have to go to the defendants to take him to the farms. However, I do not think this should blur my view in giving judgment for the plaintiff.”
It is urged and in my view, rightly, that a plaintiff who does not know his property, has not attained the threshold from which he can launch a claim to property let alone succeed thereon. He certainly should not be aided by a court to wrest title from those who claim the said property as a gift and support their claim with evidence including possession and admissions even from the plaintiff.
The appellants gave a detailed history of the properties they claimed to have been gifted to them. They also alleged that this had been publicly declared to the family and followed by an aseda of a sheep and a bottle of schnapps. The appellants produced witnesses, who were boundary owners to the disputed farms who confirmed that the appellants had cultivated the lands for over 30 years, from Enninful’s time through Ehuron’s to the time of the instant suit without hindrance. With the state of the evidence, it could not be questioned that the appellants had indeed been given some properties by their late father in his lifetime and had thanked him customarily for the same. The question to be resolved was the identity of those properties, and the evidential effect of over 30 years’ possession by the appellants with the knowledge of both their father and his immediate successor Ehuron. The circuit judge’s examination of this evidence and
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her conclusions are rightly assailed in this appeal. Seriously questioned are her conclusions contained in the following passage:
“As these lands were all covered by documents it is natural to suppose that if the deceased wanted to dispose of any such land by gift or otherwise he would have delivered the document covering that land so disposed of. There is no evidence whatsoever of the alleged gift, except the word of the first defendant that it is so. I think it is to avoid an eventuality like the present that native law insists on publicity so that in a case like this there will be people who knew of the gift to testify to its genuineness. The defendants maintain there were witnesses but all are dead except the plaintiff. In the whole town of Bobikuma, if there had been such presentation of such valuable properties, made by a stranger in favour of his children whose mothers are natives of Bobikuma, I find it difficult to believe that only the few people mentioned and who are conveniently dead, would know or hear of such gifts.”
It appears the circuit judge had discounted the evidence of gift admitted by the respondent and his witnesses to which I have already adverted. Again the reasoning that the title deeds remained in the safe because the properties have not been alienated to the defendants is a non sequitur and is contrary to the authority of Quashie v. Baidoe (supra). The evidence further preponderantly showed that title deeds to other properties, undisputedly gifted to the appellants, also remained in the safe. We here have the curious position of the respondent claiming properties he knew nothing about, and conceding that some properties of the deceased owner bad been gifted to the appellants, yet the circuit judge confidently stating that the appellants had failed to prove any gift. The circuit judge’s scathing rejection of the evidence of a gift, and her criticism of the appellant’s inability to call members of the family to attest to the gift, overlook three facts. Firstly that the late Enninful lived far away from his family at Kyebi, and strangers do not customarily witness gifts made inter vivos; secondly that the time lapse between the execution of the gift and its challenge was such that the natural demise of a lot of witnesses was a biological eventuality. Thus in the context of a sale (and the principle applies equally to this case), Adumua-Bossman J. (as he then was) said in Dodoo v. Gyansa [1960] G.L.R. 9 as reported in the headnote that:
“Proof of ownership need not be restricted to the evidence of the vendor and to that of eye-witnesses of the sale, who may or may not be alive when litigation arises. Evidence of acts of ownership in relation to the property during the material years is of no less probative value.”
(The emphasis is mine.)
Thirdly, the antagonism engendered by the very suit should discharge the appellants from calling members of their family. As was said by Ollennu J.S.C. (as he then was) in Gyamfi v. Badu [1963] 2 G.L.R. 596 at p. 599, S.C.:
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“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.”
Gyamfi v. Badu (supra) also deals with the constituents of a valid gift. That case has some remarkable similarities to this one. The Supreme Court in upholding the plea of a gift in the Gyamfi case said at p. 599 that:
“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.”
The explanation urged by the respondent of the appellants’ continued stay on the farms was that they paid rent for the privilege. This was quite properly, on the evidence, rejected by the circuit judge, and it would seem at that stage, applying the test in Gyamfi v. Badu [1963] 2 G.L.R. 596, S.C., the appellants’ plea of a gift was made out at least prima facie and not rebutted. Yet the circuit judge went out of her way to assign reasons not proffered by the respondent for the appellants’ continued presence on the disputed properties. It was her view that they remained on the land through the generosity of Ehuron, she therefore held that nothing could turn on the length of the appellants’ stay on the land. It was however not the respondent’s case that the appellants’ long sojourn on the land was the result of his predecessor’s generosity to them. He had contended that the quid pro quo for the appellants’ stay on the land was the payment of rent. The learned circuit judge having concluded so decisively against the respondent on this issue of rent should not have sought other reasons to explain the appellants’ stay on the land to prop up
the respondent’s case. In my view she erred gravely in so doing.
The circuit judge was not impressed by the first appellant in the witness box. It appears he cut a poor figure, but so did the respondent if his vacillations, which are on record, are taken into account and this court is not precluded from doing so. But the circuit judge allowed her unfavourable assessment of the first appellant to blot out all evidence of a gift, and gave no consideration to the matters urged in proof of a gift inter vivos by the appellants. She declared: “If these properties had been disposed of by the late Enninful in his lifetime, the beneficiaries of such disposition must prove it. The defendants here alleged a gift which they have failed to prove.” Any accusation of repetitiveness should not prevent reiteration
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of the fact that the appellants did allege a gift and produced evidence to support it in discharge of the onus of proof that lay on them. The respondent did not deny that some of the properties had been given to the appellants as gifts. Their dispute was as to the identity of those gifts. In those circumstances the circuit judge should not have dismissed the question of a gift but should have directed her mind to the identity of the gift the appellants were claiming. But she completely disregarded the case put forward by the appellants. The dispute relating to the house is an example in point. It was common ground that the appellants had received a house as a gift from their father—the respondent urging that the appellants were entitled to a derelict house and not the one they were presently occupying and the appellants urging the contrary. The inquiry should therefore have related to ascertaining which of the houses had been truly gifted by a consideration of all the facts urged. A holding that there was no gift simpliciter, in the circumstances, was palpably erroneous.
I think therefore that a general inquiry into the existence of a gift vel non, was not what was required of the circuit judge, so the various tests laid down in cases like Summey v. Yohuno [1962] 1 G.L.R. 160, S.C., Yeboah v. Tse (1957) 3 W.A.L.R. 299. Mensah v. Kyei, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 97 though useful are hardly pertinent here.
The simple issue was as to the identity of the properties gifted, and in this exercise, the circuit judge should have taken account of all facts that established a gift; for instance, the appellants’ long sojourn on the land and house in the donor’s lifetime, their denial of the payment of rents, which the court endorsed; their continued possession to the knowledge of Ehuron; so also the testimony of their witnesses to their exclusive use of the properties as owners and the concession by the respondent and his witnesses that Enninful had made gifts of some properties to his children anyway.
While it may be said that prescriptive title is unknown to customary law and the mere use and occupation of land cannot itself oust an original title, the very user for a number of years unquestioned, is as much a fact as any other to be taken into account when determining whether there was a gift or not. Thus in Atuahene v. Amofa , Court of Appeal, 5 August 1969, unreported; digested in (1969) C.C. 154, Akufo Addo C.J. resolved a situation in which children had been led to act for twenty years in the belief that their father died leaving the property in question to them. He posed and answered the following question:
“The question is, can the family be heard to alter that situation to the detriment of the children?
Throughout the entire twenty years’ history of the circumstances of this case, and amidst the petty family squabbles, one fact seems to have remained undisputed, and it is that the family except the respondent, have not, on the evidence, disputed the entitlement of the appellant, his brothers and sisters to exclusive use and enjoyment
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of the land in dispute; and even in the case of the respondent it was only when the children requested the delivery of possession of the land to them that he yielded to the temptation of asserting an adverse title. He cannot be heard in justice to do that.”
Those sentiments must be re-echoed here.
It is for these reasons that counsel for the appellants questioned the correctness of the circuit judge’s decision in three well-formulated grounds of appeal, which sought a vacation of her judgment:
“(1) Because the trial judge found [it was] against the weight of evidence that there was any gift, she made it impossible to determine the other issues namely: (i) which were the properties gifted and (ii) who are in possession of the properties gifted.
(2) The learned trial judge disabled herself because of her wrong finding from adequately considering the legal effect of the conduct of the plaintiff and his predecessor regarding the properties in the possession of the defendants and also to consider the long possession by the defendants and their conduct regarding the properties allegedly gifted to them.
(3) As the plaintiff could not identify the properties he was claiming from the defendants with any precision and certainty it was wrong to grant title and order the recovery of all the properties in the hands of the defendants to the plaintiff.”
In my view the contention is well-founded, that by glossing over evidence of a gift the circuit judge disabled herself from resolving the sole issue of identifying the gifts to which the appellants laid claim. Had the circuit judge expressed the view that the gifts to the appellants related to properties other than those in dispute or explained cogently why the appellants’ evidence could not be accepted she would have escaped the grave criticism that she was blind and impervious to any proof of a gift.
It is my view that on the evidence she fell short of her duty to ascertain the primary facts and make specific findings and inferences deducible therefrom on the crucial issue of fact whether there was a gift of the properties in dispute or not. In this regard, this court has the power, repeated ad nauseam, to review the evidence of the primary facts and the inferences and conclusions arising therefrom and draw its own conclusions. In the process, if the lower court’s conclusions are not based on legitimate deductions on the evidence, this court should not shrink from reconsidering the evidence, and though approaching the trial courts conclusions with respect and circumspection must not shirk its duty of rejecting any unwarrantable
findings.
I have attempted to show in this judgment why this time-honoured precept must be followed. I would accordingly allow the appeal and set aside the judgment of the circuit judge decreeing title to the respondent and her award of ¢1,000.00 damages as well as the perpetual restraints placed on the appellants in relation to the properties in dispute; in accord
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with the justice of the situation, I would order a trial de novo before a differently constituted court and award the appellants their costs herein and in the court below.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF SOWAH J.A.
I also agree.
DECISION
Appeal allowed.
Trial de novo ordered.
S.O.
