ANANE AND OTHERS v. DONKOR AND ANOTHER (CONSOLIDATED) [1965] GLR 188

DIVISION: SUPREME COURT

DATE: 22 MARCH 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

CASE REFERRED TO

Northern Counties of England Fire Insurance Co. v. Whipp (1884) 26 Ch.D. 482; 53 L.J.Ch. 629; 51 L.T. 806, C.A. NATURE OF PROCEEDING

APPEAL from a judgment of Apaloo J. (as he then was) given in the High Court, Kumasi, in two transferred suits, consolidated. Apaloo J. found in favour of the plaintiff and co-plaintiff in each of the two suits and granted them the reliefs sought. This appeal was brought by the second, third and fourth defendants in both suits. The first defendant did not appeal. The facts as summarised in the headnote are taken from the judgment of the court delivered by Ollennu J.S.C. The facts are fully set out in that judgment. COUNSEL

Ohene-Ampofo (with him Okorley) for the appellants. Hayfron-Benjamin, Jun. for the first respondent. Totoe for the second respondent.

JUDGMENT OF OLLENNU J. S. C.

Ollennu J.S.C. delivered the judgment of the court. This appeal is from a judgment of Apaloo J. (as he then was) given in the High Court, Kumasi, in two transferred suits, consolidated. The plaintiff in each of the two suits is the husband of the co-plaintiff, who is a sister of the whole-blood of the first defendant. The dispute is in respect of four cocoa farms, one situate at a place called Ayomso-kwanso in an area or district known as Fahoyeden, and the other three are situate at a place called Biakwanso in the same district of Fahoyeden.The first defendant was at all times the person in possession of each of the four farms openly exercisinghfull acts of ownership thereof. The co-plaintiff by deed dated 10 March 1952, mortgaged some four farms to her husband, the plaintiff, to secure a debt owed to him by the first defendant; according to the plaintiff and the co-plaintiff, the farms in dispute are the same as those the subject-matter of that mortgage. By two deeds of mortgage dated 3 March 1953 the first defendant mortgaged the first two of the four farms in dispute herein to the

[p.190] of [1965] GLR 188 second defendant in the second suit to secure a debt he owed him; and by another deed dated 28 September 1953 he mortgaged the third and fourth of the farms in dispute to the second defendant in the first suit to secure a debt owed him too. The first defendant having made default with the payment of the amount due under each of the two mortgages, each of the mortgagees exercised his power of sale under his mortgage and caused the third defendant in each of the two suits, a licensed auctioneer, to sell the respective farms at a public auction. The fourth defendant in the second suit was the purchaser of the first two farms, and the fourth defendant in the second suit was the purchaser of the last two of the four farms. The case of the plaintiff and the co-plaintiff is that although the first defendant was the person acknowledged to be in possession of each of the farms, openly exercising rights of full ownership thereof, yet in actual fact he was a mere agent of the co-plaintiff. They allege that the first two farms were cultivated by the first defendant with the assistance of labour paid for with moneys supplied to him by the co-plaintiff; they also allege that the remaining two farms were purchased by the first defendant at a public auction and though the purchase was ostensibly for himself and he had a certificate of purchase on it issued to him in his name, yet they say, the purchase was made with moneys of the co-plaintiff in his, the first defendant’s, possession. The plaintiff therefore claimed (a) declaration that the legal estate in each of the four farms is vested in him, and (b) an order for injunction against the defendants; the co-plaintiff also claimed (i) declaration of title of ownership, i.e. the equity of redemption, to each of the four farms, and (ii) an order to declare each of the two mortgages made by the first defendant void of effect. The first defendant in his statement of defence admitted the claim of the plaintiff and the co-plaintiff, and also gave evidence in support thereof. The trial judge found in favour of the plaintiff and co-plaintiff in each of the two suits and granted each of them the reliefs sought. The judgment of the trial was impeached on six grounds, each of which is important; they are: “(1) The judgment is against the weight of evidence. (2) The learned judge misdirected himself on the effect of exhibit J by holding that it related to the farm at Awimso Kwanso because exhibit J neither shows the situation of the farms mentioned therein nor their boundaries. (3) The learned judge erred in law on the issue of estoppel, fraud and negligence on the part of the co-plaintiff. (4) The learned judge failed to consider the well-known principle of law that where two innocent persons have to

[p.191] of [1965] GLR 188 suffer for the fraud of a third party, it is the one who by his indiscretion has enabled such third party to commit the fraud who has to suffer to apply to both the plaintiff and the co-plaintiff in this case. (5) The learned judge failed to take into consideration that the plaintiff having failed to register his mortgage deed should lose his priority. (6) The learned judge was wrong in relying on exhibits C and D which was a document prepared long after the mortgage to the second defendant and plaintiff.” The first defendant has not appealed. In support of ground (1) counsel for the appellant submitted that (i) the plaintiff and co-plaintiff failed to identify the farms, the subject of their mortgage, with the farms or any of the farms the subject-matter of the two mortgages relied upon by the defence, and (ii) they failed to adduce evidence of the co-plaintiff’s ownership which is sufficient in law to prevail against the first defendant’s apparent ownership of the said farms. There is no doubt that the farms as described in the deed of mortgage executed by the co-plaintiff are materially different from those described in the two deeds of the defence. Again, the plaintiffs tendered in evidence a plan, exhibit C, which they said is the first of the four farms described in the writ of summons. But with the exception of three adjoining owners shown as forming boundary all on a section of the north-western part of the land delineated on that plan, exhibit C, the plot 1 in the writ of summons cannot in any way be identified with the land delineated on the said exhibit C. Now on the issue of proof the learned judge directed himself as follows: “The farms were in the continuous occupation and possession of the first defendant. As far as the Biakwanso farms are concerned they were, on the admitted evidence, bought by the first defendant at an auction apparently in his own right. In my opinion, the burden is on the co-plaintiff to prove and prove affirmatively that notwithstanding appearances to the contrary, she in fact was the true owner of these farms. I think I must go beyond the first defendant’s confession of want of title and consider the evidence led by the co-plaintiff in proof of her title.” This direction is quite in order. Again, on the issue of identification of the farms in dispute with those described in the plaintiff’s mortgage, the learned judge realised that the evidence produced by the plaintiff is not enough to prove the required identity between the two sets of farms. He however

[p.192] of [1965] GLR 188 held that the absence of such material evidence is not essential because (i) “there is no dispute as to the identity of these farms. The defendants raised no issue in their defence as to the boundaries, their whole case being that the first defendant was the owner of the farms which the co-plaintiff laid title to,” and (ii) “the farms were described as having boundaries not with natural features but by farms of individuals. It follows that if the ownership of these farms changed, the description of the boundaries changed as well. At the worst for the co-plaintiff the discrepancies are mere falsa demonstratio.” Each of these two reasons given by the learned judge for disregarding this grave failure on the part of the plaintiff demonstrates confusion as to what is essential and what is not essential for discharging the onus of proof in a land case. In this case, having in the statement of claim given the descriptions of the four plots as appear in their mortgage, the plaintiffs went further to set out the descriptions as contained in the deeds relied upon by the defence, and pleaded that though the two sets of description are different, yet the plots of land described in the two sets are identical; the defendants cannot but admit that the land sold and purchased under the two mortgages executed by the first defendant are as described in those two deeds of mortgage. Therefore the defendants having joined issue with the plaintiff and co-plaintiff and put them to strict proof of their title the aforesaid admission of the defendants cannot relieve the plaintiffs of the burden of producing evidence to establish their averment that the two sets of plots of land are identical, the one with the other. As to the second ground upon which the learned judge relied to hold that the apparent differences in the description are not material, it must be pointed out that whether or not ownership of adjoining lands has changed is a question of fact which can only be established by evidence. The plaintiffs led no evidence of any such change of ownership. It is an error on the part of the trial judge to have made such an assumption which has no basis in the facts before the court. Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order

[p.193] of [1965] GLR 188 for injunction must always fail if the plaintiff fails to establish positively the identify of the land to which he claims title with the land the subject-matter of the suit. Another ground upon which the trial judge upheld the claim the plaintiffs made in the second suit is that some time in 1940, the first defendant and one Gambrah, another full-brother of the co-plaintiff, had mortgaged the first of the four farms in dispute herein to secure loans taken on their behalf, and when the mortgagee advertised the mortgaged farm for sale, Gambrah and the first defendant having defaulted, the co-plaintiff sued the mortgagee and obtained against him, a declaration of her title to the farm, exhibit J is the judgment in the said cause. Ground (2) of the grounds of appeal is in respect of this finding of the learned judge. Counsel submitted that the learned judge misdirected himself in holding that exhibit J is a judgment affecting the Awimso Kwanso farm, because there is nothing to connect that farm with the farm, the subject-matter of exhibit J. That criticism of the trial judge’s finding is well founded. Now the co-plaintiff’s claim in that suit did not describe any land; it reads as follows, “The plaintiff’s claim is for ownership and possession of land situate at Fahoyeden.” Nowhere in the judgment, exhibit J, is the land described. Moreover the co-plaintiff led oral evidence that she owns many farms in the Fahoyeden area, and she also produced a plan, exhibit C, which will be dealt with presently, to confirm the fact that she claims to own many farms in the area. There being nothing in exhibit J to identify the land, the subject matter thereof, with the Awimso Kwanso farm or with any of the four farms in dispute herein, that judgment exhibit J, is of no evidential value in the present cases. The farm in dispute in 1940 might well be any one of the many farms which the the co-plaintiff claims to own in the Fahoyeden area, but not necessarily the first of the four farms in dispute herein as the trial judge held. Exhibit J being a judgment for declaration of title which is not in respect of any identifiable piece of land, it is, as earlier pointed out, ineffective in respect of any particular piece of land and cannot be relied upon as res judicata in a subsequent suit, or as evidence of exercise or assertion of right of ownership and possession as it is sought to be used in this case. Thus the learned judge erred in holding that exhibit J proves that the co-plaintiff is owner of the Awimso Kwanso farm, the subject-matter of the second suit. And yet another piece of evidence upon which the trial judge relied to uphold the claim of the co-plaintiff to her ownership of the Awimso Kwanso farm is exhibit C and exhibit D. Exhibit C, according to the co-plaintiff, is a plan she caused to be made of the Awimso Kwanso farm in July 1953 to support an application to the Cocoa

[p.194] of [1965] GLR 188

Purchasing Company for a loan; and exhibit D is a declaration alleged to have been made by the fourth defendant in the second suit, in his capacity as the Odikro of Fahoyeden, that the land delineated on the plan, exhibit C, is the self-acquired property of the co-plaintiff. The said fourth defendant is an illiterate; he admitted touching pen for his mark to be made to a paper and also having his thumb-print affixed to it. But he maintained that he had to do so upon representations made to him that by the said document he was declaring that the co-plaintiff is a subject of his stool. The learned judge rejected the evidence of the fourth defendant and preferred the evidence of the sixth witness for the plaintiffs, a licensed letter writer, who had prepared exhibit D at the instance of the co-plaintiff, and made the fourth defendant’s mark thereto, and who said he correctly interpreted the contents of exhibit D to the fourth defendant, and he, the fourth defendant, fully understood and appreciated the contents thereof before he, the plaintiff’s sixth witness, put the thumb-print of the fourth defendant on the document, exhibit D, and made his mark on both exhibit C and exhibit D. The learned judge held that the fourth defendant is therefore estopped by exhibit C and exhibit D from disputing the co-plaintiff’s title to the land described in exhibit C. This finding of the learned judge in respect of exhibit C and exhibit D is the subject of submissions of counsel in respect of ground (6). Now the cause of action in the second suit which is in respect of the Awimso Kwanso farm arose on 20 April 1954 when the third defendant in that suit sold the farm at the instance of the second defendant the mortgagee thereof and the same was purchased by the said fourth defendant; this fact is pleaded by the plaintiff in paragraph (3) of the particulars of his claim therein, while the declaration, exhibit D, which the learned judge held to be a declaration by the fourth defendant against his interest and therefore operates to estop the fourth defendant from denying the title of the co-plaintiff to the farm, was, on the face of it, made on 17 June 1954 nearly two months after the fourth defendant had purchased the farm at a public auction and had refused to acknowledge the title of the co-plaintiff to it. The writ of summons in that suit was filed on 29 June 1954, twelve days after the said declaration. It goes without saying that the document exhibit D and the plan exhibit C attached to it must have been made for the purposes of this case. Is it conceivable that the fourth defendant who was disputing the title of the co-plaintiff to that farm, would, two months after his dispute with the co-plaintiff had commenced, consciously make a written declaration that the very farm belongs to his opponent, the co-plaintiff, to enable the co-plaintiff, successfully to defeat his own claim, and thereafter having provided that damaging evidence against himself, persist in

[p.195] of [1965] GLR 188 his resistance to the co-plaintiff’s claim to ownership of the same farm? Certainly this is contrary to human behaviour, and highly inconceivable. It would appear that the learned judge failed to direct his attention to the date when the cause of action arose as pleaded by the plaintiff and co-plaintiff and the date when the action was commenced, and trying the case in 1961 he must have assumed that the declaration exhibit D and the plan exhibit C must have been made a long time before the cause of action arose, when in fact they came into existence thereafter. In connection with this farm, plot 1 in the claim, the fourth defendant in the second suit led evidence which, in effect, was admitted by the plaintiff and co-plaintiff that the farm was made by the first defendant, the husband of his sister, and that he the fourth defendant, assisted his brother-in-law to fell the big trees therein; he denied a feeble suggestion made in cross-examination that the first defendant paid him for his services in that regard. This undisputed fact makes it all the more strange that the fourth defendant would consciously make the declaration contained in exhibit D. Had the trial judge directed his attention to all these undisputed facts, he could not possibly have held as he did hold that exhibit D was made long before the dispute arose, and that the evidence of the fourth defendant as to how he came to touch pen for his mark to be made to exhibit D is not true; he most probably would have had no difficulty in accepting the explanation offered by the fourth defendant as true. The farms described in the writ of summons as plots C and D were held by the learned judge to be farms purchased in 1939 by the first defendant for the co-plaintiff with a portion of the co-plaintiff’s money in his possession. The learned judge said that “this matter was completely clinched by exhibit E, . . . a letter dated 10 October 1939 written by the first defendant to the co-plaintiff in which he admitted buying two farms for the co-plaintiff out of £100 which was the co-plaintiff’s money in his possession.” The full text of the letter is as follows: “Dear Sister, I have to inform you that, I have bought two small cocoa farms at auction for you. The farms are for Kwadjo Adae, from Ama Dwapa’s family. I paid £3 9s. 6d. (three pounds nine shillings and sixpence) out of your £100 (one hundred pounds) you gave me. The farms are almost like forest, but if we try to cut the trees, the cocoa will grow well, they are on the Bea road. Try to come and see. They are cheap but if you see and you don’t like, I will try to sell them for you, but I think you will

[p.196] of [1965] GLR 188 like them, when I get some I will use the balance of the money to buy.” It is significant to note that the farms mentioned in the letter are not described anywhere. The said farms were sold in execution of a decree of a court in favour of one Gambrah, a brother of the whole-blood of the co-plaintiff and the first defendant. Both the co-plaintiff and the first defendant gave evidence that the first defendant was issued with a certificate of purchase of the two farms; but that certificate of purchase was not produced. Again, Gambrah, the execution creditor in that sale, gave evidence in the present case; he was the third witness for the plaintiff; but he too did not describe any of those two farms. All he said on this issue is: “The four cocoa-farms mortgaged to the plaintiff belong to the co-plaintiff. She herself made the farms. She cultivated three farms at Awimso Kwanso. I obtained judgment against one Kwadjo Adae and I sold his farm at Biakwanso by writ of fi. fa. It was purchased by the first defendant as agent for the co-plaintiff. This is the only farm bought by co-plaintiff. It is long time since I sold this farm to the co-plaintiff.” In those circumstances it is possible to identify the farms mentioned in exhibit E with the farms C and D in the present suit, and not with any other two of the many farms which the co-plaintiff claims she owns in the area. Finally it was submitted by counsel under ground (4) of the grounds of appeal that in law, where two innocent persons have to suffer for the fraud of a third party, it is the one who by his indiscretion has enabled such third party to commit the fraud who has to suffer, and that in this case the plaintiff and his wife, the co-plaintiff, are shown to have enabled the first defendant to perpetrate fraud, therefore even if the co-plaintiff had succeeded in proving her title to the four farms or any of them, her claim as well as that of the plaintiff should nevertheless have been dismissed. The facts relied upon to support this submission were provided by the plaintiff and the co-plaintiff themselves. By exhibit J which purports to be a judgment in an interpleader suit, the co-plaintiff proved that in 1940 the first defendant dealt fraudulently with some farms of hers in his possession by mortgaging them to secure debts owed by him; yet in spite of this fact, she permitted the first defendant thereafter to continue in occupation of all farms, both seasonal and permanent crop farms, owned by her in the area and openly to exercise full acts of ownership thereof as if he were the owner of them. Thus, if indeed the co-plaintiff is the real owner of the farms in dispute, and the first defendant were merely her agent and caretaker, she, the

[p.197] of [1965] GLR 188 co-plaintiff, must be deemed to have held out the first defendant to all the world as the beneficial owner of the farms in his occupation entitled to sell, mortgage or otherwise deal with them as he may decide. Again, although the plaintiff was fully aware that the first defendant was in occupation of the farms mortgaged to him, and would be regarded by all persons as the owner thereof except possibly by his wife, himself and possibly Gambrah, the brother of the co-plaintiff and the first defendant, yet he never at any time registered the deed of mortgage, exhibit A, executed in his favour by the co-plaintiff and witnessed by the first defendant and Gambrah, the third witness for the plaintiff, to give statutory notice to all the world that the co-plaintiff is the owner of the properties and had mortgaged the same to him. The plaintiff, by failing to register his deed, made it impossible for anyone conducting a search to discover that the farms belong to any person other than the first defendant who is in possession thereof. By these means the co-plaintiff and the plaintiff enabled and facilitated the execution of the two mortgages of 3 March 1953 and 28 September 1953, by the first defendant in the first suit to the second defendant in the second suit. Therefore if by the two mortgages of 1953 aforesaid the first defendant can be said to have defrauded the plaintiff and the co-plaintiff on the one hand, and the second defendant in each of the two suits, and any one is to suffer thereby, it is the plaintiff and the co-plaintiff who, by their conduct facilitated the perpetration of the fraud who must suffer, and not the two second defendants. The Court of Appeal in England in Northern Counties of England Fire Insurance Co. v. Whipp,1 after considering the leading cases on the point summed up this principle as follows: “(1) That the Court will postpone the prior legal estate to a subsequent equitable estate; (a), where the owner of the legal estate has assisted in or connived at the fraud which has led to the creation of a subsequent equitable estate, without notice of the prior legal estate; of which assistance or connivance, the omission to use ordinary care in inquiring after or keeping title deeds may be, and in some cases has been, held to be sufficient evidence, where such conduct cannot otherwise be explained; (b), where the owner of the legal estate has constituted the mortgagor his agent with authority to raise money, and the estate thus created has by the fraud or misconduct of the agent been represented as being the first estate. But (2) that the Court will not postpone the prior legal estate to the subsequent equitable estate on the ground of any mere carelessness or want of prudence on the part of the legal owner.”

[p.198] of [1965] GLR 188

One interesting feature of the claim of the plaintiffs is that they do not contend that the farms are not liable for the debts of the first defendant. Their case is that the farms are liable for the payment of the debt due to the plaintiffs, but not for that due to any other creditor of the first defendant. Of course it is up to the co-plaintiff to decide which debt of her brother, the first defendant, should be paid out of her property, but to succeed in this contention she must first prove her title to the farms. This she failed to do, and, as shown above, each of the grounds upon which the trial judge upheld her claim to ownership of the farms in dispute is wrong. Other strong points were made against the judgment appealed from, but it is unnecessary to go into any of those since it is evident from what has been said so far that the judgment cannot stand. For these reasons this appeal must be allowed, and it is accordingly allowed; the judgment of the court below is set aside including the order as to costs; any costs paid should be refunded. For that judgment the following is substituted: the claim of the plaintiff and that of the co-plaintiff in each of the two suits consolidated is dismissed, and judgment entered thereon for the second, third and fourth defendants. The appellants will have their costs in this court fixed at £G141 14s 0d. and their costs in the court below assessed at 175 guineas. DECISION

Appeal allowed.

S. K. D.-B.