Division: IN THE HIGH COURT (LANDS DIVISION), CAPE COAST
Date: 22ND DECEMBER, 1959
Before: ADUMUA-BOSSMAN J.
JUDGMENT OF ADUMUA-BOSSMAN J.
(His lordship stated the history of the matter, and continued:—)
The question which arose for determination in the trial-Court, and which now arises in this appeal, was whether the plaintiff by the evidence which he adduced before the trial-Court, was able to discharge the onus which undoubtedly lay on him of affirmatively establishing the alleged purchase from the defendant’s father. The defendant’s affidavit of opposition gave clear enough indication to the plaintiff that the defendant was raising
(a) the question of the authenticity or genuineness of the Deed of Conveyance relied on by him, with particular reference to the identity of the “Amadu” described as vendor therein;
(b) the question whether his brother in his lifetime ever, by any conduct on his part, claimed title to the plot in dispute; and
(c) the question whether, in any event, he had not acquiesced in the defendant’s adverse occupation for so long, and in such circumstances, as to preclude him from now main-taining his present claim.
An examination of the material evidence put forward by the plaintiff towards discharging the onus which rested on him, shows that it amounted to no more than the mere production of an Indenture of Conveyance bearing date 23 September, 1929. This indenture purported to be made between Amadu of Kotokuraba Road, Cape Coast as vendor, and Jacob Bedford Aikins (also of Cape Coast) as purchaser, whereby, in consideration of the sum of £10.10/- paid by the purchaser to the vendor, the latter granted and conveyed the plot in dispute to the purchaser. The Deed of Conveyance was duly stamped shortly after the date of execution, but was never registered in the Deeds Registry.
[p.466] of [1959] GLR 464
From the evidence of the plaintiff, and that of his witnesses who gave evidence concerning the Deed (Exhibit “A”), it does not appear that the plaintiff himself had any personal knowledge of the alleged transaction of sale and purchase which culminated (ostensibly at any rate) in the execution of the Deed of Conveyance Exhibit “A”. That view of the matter is confirmed by the fact that the plaintiff is not mentioned as having been present, either when the plot was measured for the purpose of a plan being prepared by Mr. Selby, Licensed Surveyor, or when the deed was alleged to have been executed, with John MacCarthy and Ebenezer Barber as attesting witnesses. The result was that at the trial, beyond producing and tendering the deed, and giving such general evidence as appears capable of being collected in any case from the document itself, the plaintiff was unable to give any further evidence as to the circumstances and details of the alleged transaction of sale and purchase of the plot in question.
The defendant’s challenge was that his late father, who appears to have been popularly known as Amadu Achinaboko (at any rate according to his Town Council Rate Receipts and Notices, as well as telegrams put in evidence), was not the person who purported to sell the plot to the plaintiff s late brother, and who executed Exhibit “A” in respect of the sale. The plaintiff was not able to give any first-hand evidence towards refuting this challenge. That was inevitable, having regard to the fact that he himself had taken no part in the alleged transaction.
After his own general evidence, however, the plaintiff adduced the evidence of certain witnesses who testified primarily in connection with the Deed of Conveyance, Exhibit “A.” There was firstly Mr. Selby, Licensed Surveyor, who testified that at the request of plaintiff s late brother he entered upon and took measurements of the plot in dispute for the purpose of preparing a plan thereof, and in due course he prepared the plan annexed to the Deed. Mr. Selby, however, did not know the defendant’s late father, and (according to him) whilst he was on the land a man came to the spot accompanied by three of four persons. Mr. Selby did not get to know whether they were the man’s children or friends, and the man himself merely gave his name as Amadu. Unfortunately, Mr. Selby did not explain in his evidence what part, if any, the man played in the measuring of the land, or what he did when he came on the land. Furthermore, Mr. Selby does not appear to have had further dealings with the man, or have got to know him better subsequently, so as to be able to tell the trial-Court positively that, beyond question, the man was defendant’s father.
[p.467] of [1959] GLR 464
The plaintiff called also Mr. MacCarthy, whose name appears in the Deed (Exhibit “A”) as an attesting witness, and who gave evidence of the execution thereof as follows:—
“Yes I know this Indenture. I read it to the vendor through a Hausa man of the household, by name Mahama, who also interpreted it to the said Amadu, vendor. The vendor understood the contents of the Deed of Conveyance and I made his mark. I also signed my name on it, an it was taken to the then District Commissioner, Cape Coast, and it was executed before him…. The vendor told me he was called Amadu (a tip-toe walker).”
In so far as the question of the identity of this Amadu (who represented himself as vendor and signed Exhibit “A” with his mark) is concerned, it will be observed that the evidence of Mr. MacCarthy does not appear to be of any greater value towards identification than that of Mr. Selby.
There was, thirdly, Mr. Barber. His name also appears on Exhibit “A” as an attesting witness. He deposed as follows:—
“I remember sometime ago a plot was measured near Mr. Tagoe for the late Aikins, and some people were present. I signed a document with one Baidoo who is now dead. and this is my own signature. The vendor is called or described as Amadu (a tip-toe walker), and another one is called Adamu who has gone away. I only know he was called Amadu and I do not know of any other name he holds. I know Amadu (tip-toe walker) but I do not know Amadu Ahinaboko.”
Mr. Barber’s evidence also, in so far as the identity of the Amadu who signed Exhibit “A” with his mark is concerned, is about the same as the respective testimonies of the other two witnesses.
The defendant had put the plaintiff to ‘strictest proof’ (to use his own words appearing in his affidavit of defence) that it was his late father, more commonly known as “Amadu Achinaboko,” who had for some reason or other used only the first part of his name “Amadu” in the execution of an Indenture of Conveyance for the plaintiff s late brother. It appears to me that the evidence of the plaintiff s witnesses fell very far short of positively establishing that the man of whom each of them spoke was, beyond question, defendant’s father. Not a single one of those three witnesses was able to retort to the defendant in his cross-examination of them,
“ I knew your father, and I say it was he who took part in the measurement of the plot and in the execution of the Deed of conveyance, Exhibit “A.”
It seems particularly remarkable that, at the execution of that deed, some persons then already well acquainted with the alleged vendor, were not the persons who acted as attesting witnesses. Yet the use of acquaintances was to be expected, particularly in a locality like Kotokuraba in Cape Coast, so that upon a dispute arising at anytime subsequently, clear, positive, and unchangeable evidence would be readily forthcoming from one or more witnesses, to some such effect as the following:—
“I had been acquainted as a neighbour (or friend or relative) with defendant’s late father for sometime before the transaction the subject matter of this action. He himself invited me one Monday (as the case may be) to witness the sale by him of the land in dispute near his house to the late Mr. Jacob Aikins, plaintiff’s brother. Sometime after the sale we met at such and such a place with such and such other witnesses, and a Deed of Conveyance was executed in respect of the sale. In my own presence, defendant’s father, after the deed had been read over and interpreted to him in the Hausa language by so and so, touched pen for his mark to be made thereto. I myself also signed with my mark as now appears on the document.”
Instead of some such positive evidence to make the identity of the person described as vendor in Exhibit “A” incontrovertible if believed, all we have is the inconclusive evidence that firstly, a person previously unknown to Mr. Selby, attended at the measurement of the plot accompanied by three to four others, and on that occasion gave his name as Amadu; and that subsequently, at the execution of Exhibit “A,” a man previously unknown to John MacCarthy and Ebenezer Barber, the attesting witnesses, attended and executed as vendor, giving his name as Amadu.
A similar vagueness of identification appears to shroud the ‘Mahama’ (or Mohama’) who is said to have interpreted the deed from the Fanti language into Hausa for the benefit of the Amadu mentioned as vendor. In the attestation clause, sworn to on 1st July, 1929 before a District Commissioner, that alleged interpreter is referred to as ‘Mohama, son of Adamu.’ In the evidence of the witness John MacCarthy before the trial-Court , however, he was referred to as ‘Moham – a Hausaman of the household.’
It is that striking feature about the Indenture of Conveyance tendered by the plaintiff which justifiably, in my opinion, brands it as suspect. There is not, as one would have expected, the evidence of persons familiar with the vendor, e.g. friends, neighbours or acquaintances, clearly establishing that the indenture was executed by the
[p.469] of [1959] GLR 464
defendant’s father, after its interpretation to him by Mahama (or Mohama), equally well-known and recognised as his son or servant.
It is significant, too, that though the defendant denied the plaintiff s suggestion in cross-examination that the Hausa Community at Kotokuraba, Cape Coast, were aware of the sale of the piece of land to plaintiff s late brother, plaintiff did not call a single member of the Hausa Community of Kotokuraba, Cape Coast, to testify to the alleged knowledge of the whole community that the plot had been sold by defendant’s father to plaintiff s late brother.
The trial-Court’s judgment was as follows:-
“And in view of the Deed of Conveyance which the plaintiff relies upon and which was not executed by Amadu Achinaboko the owner of the land, but by the Amadu who executed it was not known… the Court is of the opinion that the Deed of Conveyance executed on the 23rd September, 1929 and the name marked therein was not the defendant’s father’s name for the plaintiff to take action against the defendant.”
The trial-Court was, in my opinion, justified in that view.
The next question for consideration is whether outside the Indenture of Conveyance there was other
evidence sufficiently establishing the sale and transfer of the plot by the defendant’s late father to the plaintiff s late brother. The indenture itself recited the payment of trama earnest-money payable on a bargain to transfer land to bind the bargain (or rather the parties to it) according to customary law. Thus Sarbah in his invaluable Fanti Customary law (2nd Ed. p. 93-94), after referring to payment of earnest-money (trama) as the fifth essential condition of a valid sale in accordance with customary law, goes on to explain:—
“This binds the contract; for without the payment of trama to the vendor, no contract exists, and he is at liberty to sell the land to some one else for a larger price; the intending purchaser can (also) withdraw his offer and repudiate the contract without being liable to any damages.”
Mention of payment of earnest-money would, in the circumstances, necessarily suggest that there had been a prior transfer by the methods of customary law which was now being confirmed and perpertuated by the execution of the Indenture. The plaintiff, however, adduced no evidence towards establishing the customary transfer of the plots in dispute by the defendant’s late father to the plaintiff s late brother.
Where there has been a customary transfer of land, it is of the essence of the procedure that there should be considerable publicity
[p.470] of [1959] GLR 464
about the whole process of the performance of the necessary formalities, so that witnesses (e.g. relatives, friends and neighbours) will be readily available to testify, in the event of a subsequent dispute.
In this connection Sarbah’s account of the essentials of a valid customary sale (appearing at pages 86-87 of his Fanti Customary law (2nd Ed.)) are most pertinent. Sarbah wrote,
“To constitute a valid sale of land on the Gold Coast there must be inter alia
(3) the marking out or inspection of the land and if necessary, the planting of boundary trees and /or fixing of boundary marks;
(5) the payment of trama (earnest money) to the vendor…. in the presence of some of the members of
his family, and witnesses.”
It is of the utmost significant, then, that in the instant case, beyond a mere mention of trama in the Indenture, there was not a scintilla of evidence of customary transfer with the usual rites and ceremonies in situ, and all the publicity necessarily incidental thereto. Nor did the plaintiff adduce any evidence towards establishing that his late brother, through whom he is now claiming, was ever put in possession of the plot in the presence of witnesses.
Even more significant, there is not a shred of evidence that the plaintiff s late brother at anytime exercised control of the plot by doing anything whatsoever on it to indicate such control, e.g. erecting concrete cement pillars, or planting boundary trees, to mark the limits of the plot; or constructing a shed or any temporary structure thereon. The plaintiff in the course of his cross-examination by the defendant said: “I have done nothing on the land.” It seems to me that that admission relates also to his late brother, for the land lay between their two premises, and the late brother had acquired it to augment his plot. Even though by itself it was too small to be built on, it is curious that he did not fence it in with his premises to indicate that he had taken possession of it from the former owner, and had added it on physically to his own property.
The plaintiff nevertheless alleged that he was in control. As an illustration of his control, he testified that the Water Authority wanted to erect a sand-pipe on the plot in dispute. The defendant and a brother came to him to seek permission, which the plaintiff refused. The Water Authority were thereby forced to erect the standpipe on defendant’s adjoining land. Those allegations would have been best established by the evidence of Water Authority, but the plaintiff did not call any representatives of the Authority.
The plaintiff further gave evidence that:—
“My late brother told Amadu to demolish part of his building a bit away so that he could build, but he never did. After this the son of Amadu Musah Derkichie received £10 from my late brother for consideration of demolishing part of the building, and not very long afterwards Amadu died, and the arrangement collapsed.”
For the plaintiff s late brother in his lifetime to be able to make such a request to defendant’s father ‘to demolish part of his building a bit away so that he could build’ (i.e. make use of the plot in question allegedly sold to him) would imply that the original arrangement was that the defendant’s father should sell the plot in dispute to the plaintiff s brother for the purpose of extending the latter’s premises by building, the defendant’s father to allow him facilities, such as breaking part of his own building ‘a bit away’ to enable the plaintiff s brother to build. If that were so, and one part of the bargain had been complied with, and defendant’s father had received the consideration money and had sold and transferred the plot to be built on, how came it that he did not comply with the other part of the bargain ? More important still, on the plaintiff s own confession the brother lived for 8 years after the purchase of the plot. Why did he not take action against the defendant’s father to compel compliance with the arrangement? If the plot was purchased at all, it must have been purchased for the purpose of being put to some use. Why has it not been put to that use from 1929 up to the date of the present action (1959), but on the contrary has been used at all material times, on the plaintiff s own admission, by the family of the person who is alleged to have sold and transferred it to the plaintiff s brother?
That circumstance, it seems to me, is a fatal weakness in the plaintiff s case. It is decisive, and it is that which, in my view, was the trial-Court’s strongest justification when, in deciding adversely to the plaintiff they spoke as follows:—
“After carefully examining the evidence of both plaintiff and defendant, and the exhibits tendered in evidence in support of their respective cases, the Court finds that the plaintiff has failed to discharge the onus which lies on him, because he has not been able to prove that he is in possession of the land subject-matter of dispute, as stated in his Writ of Summons. He led no evidence to that effect. The witness called by the plaintiff failed to prove that the plaintiff has occupied or developed the land, or that he has been disturbed by the defendant whilst he is in possession.”
[p.472] of [1959] GLR 464
DECISION
It appears clear, in my view, that the trial-Court were right in their view of the case as a whole. I do not find any sufficient ground for disturbing their judgment. The appeal is dismissed, with costs assessed at £15.0s 6d, including £10:10/-Counsel’s fee.
