AMANKWANOR v. ASARE [1966] GLR 598

Division: SUPREME COURT

Date: 27 JUNE 1966

Before: MILLS-ODOI, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Bassayin v. Bendentu II (1937) 5 W.A.C.A. 1, P.C.

(2) United Africa Co., Ltd. v. Apaw (1936) 3 W.A.C.A. 114.

(3) Macjaja v. Ibok (1947) 12 W.A.C.A. 148.

(4) Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court, Accra, setting aside the judgment of the West Akim Abuakwa Local Court, Division 2. The facts are sufficiently set out in the judgment of Siriboe J.S.C.

COUNSEL

A. W. Acquaah for the appellant.

No appearance by or on behalf of the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. This is an appeal from the judgment of Prempeh J. (as he then was) sitting in the High Court, Accra, in exercise of its appellate jurisdiction from a judgment of the West Akim Abuakwa Local Court, Division 2. For the sake of the sake of convenience the parties will hereafter be referred to simply as the plaintiff and defendant respectively.

The plaintiff’s claims before the local court were for: (a) £G100 damages for trespass to a piece of land with cocoa thereon situate at a place called Krodua; (b) an order for account during the 1961-62 cocoa season and (c) ejectment of the defendant, his workmen, agents or servants from the said land. [p.600] of [1966] GLR 598

The facts of the case about which there appears to be very little controversy are these: about 30 years before the date of the trial of this action, one Kwame Adu, an uncle of the plaintiff, acquired from the then Odikro of Krodua called Kwabena Nketia, a piece of land for the purpose of cultivating a cocoa farm. The agreement reached between them was that when the cocoa started to bear fruit the farm was to be divided into three parts, that is to say, one-third for the Odikro and the remaining two-thirds for the plaintiff’s predecessor.

After the division had taken place as indicated, the Odikro later sold part of his one-third portion to one Paul Darko, the father of the defendant who has since died, and whose successor the defendant is. Kwame Adu too is dead, and so is his brother, one Kwabena Okyere who succeeded him. It was after the latter’s death that the plaintiff was appointed successor.

In the lifetime of Kwabena Okyere, the defendant was alleged to have trespassed onto the former’s portion when a complaint was lodged against him before the plaintiff’s first witness, Kwame Anin (the present Odikro of Krodua), who had succeeded the late odikro. At an arbitration, the defendant relied on a purchase of the land, and when he was challenged to produce the document evidencing it, he asked for two weeks, but could not do so.

After Okyere’s death, the defendant repeated the act of trespass by collecting cocoa from the plaintiff’s portion resulting in differences between them which eventually went before the police. Upon investigations, the matter was referred to the plaintiff’s first witness for settlement, but the defendant refused to accompany the arbitrators to have the boundary between them demarcated, so the plaintiff brought this action claiming the aforementioned reliefs.

It appears from the evidence that the defendant did not seriously dispute the act of trespass complained of, but based his case on a document, exhibit A, and on the oral testimony of two witnesses he called. Exhibit A, according to the defendant, was prepared for him by the present Odikro of Krodua, the plaintiff’s first witness, to replace an original paper the plaintiff’s first witness’s predecessor gave to the defendant’s father evidencing the sale of the farm to the latter, which the plaintiff said he could not trace. In so far as it was not denied that the predecessor of each of the parties had some portion of the land in question, the main issue before the trial court was essentially one of fact, namely, what was the portion each had, which naturally turned on the correct boundaries between them. The subsidiary issue that followed was whether any trespass had taken place as alleged.

[p.601] of [1966] GLR 598

On these two issues of fact, the local court magistrate after hearing the evidence and also inspecting the locus in quo in the presence of the parties and their witnesses, found in favour of the plaintiff. In his judgment, he accepted the evidence given and the boundaries shown by the plaintiff of the portion he claims, which according to the local court magistrate, agreed with the plaintiff’s first witness’s evidence and the description he gave.

In rejecting the defendant’s description of the boundaries which was based solely upon exhibit A, the local court magistrate observed that there was a disagreement between the defendant and his first witness. He then went on to say:

“I do not rely on the boundaries shown by the defendant, because if I do, the defendant would dispossess the plaintiff completely of the entire area though the plaintiff owns two-thirds share of the whole area. The defendant has wrongly collected money which should have been the property of the plaintiff. I confine my judgment on the boundaries shown by the plaintiff and corroborated by the landlord, the plaintiff’s first witness.”

He accordingly entered judgment for the plaintiff and awarded him £G20 damages to cover what he described as benefits the defendant had enjoyed from the plaintiff’s portion and also £G17 4s. costs. From that judgment the defendant appealed to the High Court, Accra, where Akainyah J. (as he then was) made the following order:

“I think a plan ought to be ordered in this appeal in view of the fact that three farms are involved. By consent I appoint Mr. Annof, licensed surveyor, Nsawam, to survey the area in dispute and show on a plan the farms of the respondent Amankwanor, the appellant Kofi Asare and the stool of Krodua respectively. Each party to deposit £G10 towards the cost of the survey on or before 7 November 1962; the plan must be filed within two weeks . . .”

This order was complied with, and the plan thus produced, was tendered by the surveyor without objection by counsel and marked as exhibit 1 at the hearing before Prempeh J. (as he then was). The area claimed by the plaintiff is shown edged in red, and that claimed by the defendant in yellow. Apart from these, there are two other areas shown on exhibit 1 edged in purple and chocolate respectively; the purple being the area claimed by the Odikro of Krodua (i.e. the plaintiff’s first witness), and the chocolate alleged to be the portion sold to the plaintiff’s father by the Odikro of Krodua.

The learned judge reversed the judgment of the trial court mainly on the ground that: [p.602] of [1966] GLR 598 “The local court magistrate fell into serious error when he purported to annul exhibit A, because by so doing he expressly and unjustifiably rejected the whole fabric of the defendant’s case. Some of his reasons for annulling that document were that it was made behind closed doors, and because the boundaries therein contained contradict those shown by the plaintiff’s first witness at the inspection. There is no doubt that in so holding, the magistrate failed to consider the significant fact that this document was made by the plaintiff’s first witness himself who is well conversant with the situation of the land and the boundaries, and if therefore he was an unreliable witness, the unreliability of his evidence goes to affect the case of the respondent who called him and not the appellant.”

With great respect we entirely disagree with that judgment. It appears the learned judge, upon the evidence, failed to consider the legal effect of exhibit A. For as between the parties themselves, it is undoubtedly a document which has no binding effect on the plaintiff, since neither he, nor any of his predecessors had anything to do with its preparation.

Similarly, as between the defendant and the plaintiff’s first witness exhibit A cannot under any circumstances be said to be binding on the plaintiff’s first witness, whose evidence in clear terms challenged its genuineness having regard to the boundaries therein described. For instance, under cross-examination by the defendant, the plaintiff’s first witness disagreed that the defendant’s portion of the farm forms a boundary with one Odoom as exhibit A says. Also, in answer to another question by the defendant, the plaintiff’s first witness stated that when the arbitrators went to the farm, he, the plaintiff’s first witness discovered, that the defendant had gone beyond his boundary with the plaintiff. In the light of all this, the learned judge should have directed his mind to the important point that since the plaintiff’s first witness was admittedly an illiterate, to bind him with exhibit A, a document obviously prepared in the English language, the onus lay upon the defendant to establish that it had in fact been properly explained and interpreted to him so as to make him understand its real import. The reason for this proposition is that when an illiterate executes a document, there is no presumption that he has appreciated the meaning and effect of it. The onus of proving these matters, it has been held, is upon the party seeking to bind the illiterate to the terms of the document: see Bassayin v. Bendentu II,1 also United Africa Co., Ltd. v. Apaw.2

[p.603] of [1966] GLR 598

In the present case, that onus was not in any way discharged by the defendant, because the letter writer who prepared exhibit A was not called nor was any reason given for not calling him or any of the two witnesses whose names appear on the document. Having regard to the nature of the plaintiff’s first witness’s evidence, it was not enough for the defendant simply to tender in evidence exhibit A and to leave it at that.

Another significant point the learned judge seemed to have overlooked when considering the relevancy of exhibit A, is that not only was there no attestation clause to it, but it is also quite clear on the face of the document that no elder or linguist of the Krodua stool joined in executing it, even though exhibit A purported to convey part of that stool’s land to the defendant’s late father. In such a case, it is difficult to see how the defendant could bind the odikro who represents the stool with that document, because by native law and custom such a document cannot bind the stool, unless the elders or at all events the linguist of that stool had been a party thereto: see the case of United Africa Co., Ltd. v. Apaw cited supra. The cumulative effect of all this therefore, is that the learned judge erred in the view he held, namely, that if exhibit A was made by the plaintiff’s first witness whose evidence contradicted the boundaries described in exhibit A, then he was an unreliable witness, and his unreliability should have been used against the plaintiff who called him as a witness. The learned judge also completely ignored exhibit 1 which substantially supports the plaintiff’s case as found by the local court magistrate. In our opinion, the circumstances of the case as carefully examined herein, do not support the learned judge in the view he held and upon which he reversed the trial court’s judgment. That judgment was based upon facts found by the trial court magistrate who had the opportunity of seeing and hearing the parties and their witnesses, as well as of viewing the lous in quo. There being ample evidence to support that judgment, the learned judge was not justified in reversing it as has been held in many cases such as Macjaja v. Ibok3 and Kuma v. Kuma4 For these reasons the appeal was allowed.

DECISION

Appeal allowed.

S. K. T.