ANKRAH v. ANKRAH [1966] GLR 60

Division: SUPREME COURT

Date: 24 JANUARY 1966

Before: OLLENNU, APALOO AND LASSEY, JJ.S.C.

CASES REFERRED TO

(1) Asenso v. Nkyidwuo (1956) 1 W.A.L.R. 243, W.A.C.A.

(2) Akomea v. Biei, Court of Appeal, Cyclostyled Judgments, January-June 1958, p. 98 unreported.

(3) R. v. Hartington Middle Quarter (Inhabitants) (1855) 4 E. & B. 780; 24 L.J.M.C. 98; 24 L.T. (O.S.) 327; 19 J.P. 150; 1 Jur. (N.S.) 586; 3 W.R. 285; 3 C.L.R. 554; 119 E.R. 293.

(4) Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627; 15 L J.Ch. 441; 67 E.R. 530.

(5) Square v. Square [1935] P. 120; 104 L.J.P. 46; 153 L.T. 79; 39 S.J. 403.

(6) Wright v. Beckett (1834) 1 Moo. & Rob. 414; 174 E.R. 143.

(7) R. v. Birch (1924) 93 L.J.K.B. 385; 88 J.P. 59; 40 T.L.R. 365; 68 S.J. 540; 18 Cr.App.R. 26, C.C.A.

(8) R. v. Golder [1960] 1 W.L.R. 1169; 124 J.P. 505; 104 S.J. 893; [1960] 3 All E.R. 457; 45 Cr.App.R. 5, C.C.A.

(9) Watt (or Thomas) v. Thomas [1947] A.C. 484; [1947] 1 All E.R. 582; [1948] L.J.R. 515; 176 L.J. 498; 63 T.L.R. 314, H.L.

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NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court setting aside a decision of the Nyakrom-Nkum Local Court. The facts are sufficiently set out in the judgment of Ollennu J.S.C.

COUNSEL

A. W. Acquaah for the appellant.

K. Ohene-Ampofo for the respondent.

JUDGMENT OF OLLENNU J.S.C.

The plaintiff-appellant herein, and the defendant-respondent herein, are sister and brother of the whole blood. The suit commenced with a writ of summons issued out in the Local Court B of Nsaba on 16 March 1960; judgment was given by that court in favour of the plaintiff on 11 November 1960, but the same was set aside by the High Court, Cape Coast, on 17 November 1961, on the ground of irregularity, and a new trial was ordered. It was eventually tried by the Nyakrom-Nkum Local Court.

The writ of summons is in the nature of pleadings and it is as follows:

“The plaintiff was in 1957, declared the customary successor to the late Kofi Eburahin by the head and principal members of her family. Plaintiff then being a native doctor living at Mankesim, could not manage the affairs reposed on her and therefore appointed the defendant to act for her. Plaintiff has now come home and is asking for her right but the defendant has flatly refused to recognise her as such. Plaintiff therefore sues the defendant to show cause why he should not relinquish the acting appointment and offer the plaintiff the full right to enjoy her succession.” The defendant pleaded not liable, and contended that he is successor in his own right, and that he is not acting for and on behalf of his sister, the plaintiff. He thus traversed the material averments made by the plaintiff, namely, (i) that she is the duly appointed successor to late Kofi Eburahin, and (ii) that the defendant is in charge of the estate as acting successor and agent of the plaintiff.

Two issues were therefore joined for determination, namely,

(i) whether the plaintiff is the duly appointed successor to Kofi Eburahin, and if she is;

(ii) whether the defendant’s management of the estate is as an acting successor appointed by the plaintiff.

Under customary law a successor may appoint another member of the family to exercise the office for him, but such appointment must be with the approval of the family since the estate is vested in the family, and the family must be satisfied as to the suitability of the [p.65] of [1966] GLR 60 person who would take charge of and administer it in the absence of the successor. Since the plaintiff admits by her pleadings that the defendant was administering the estate at the date and at all material times, the main issue the local court had to determine was the first issue, namely, whether or not the plaintiff is the duly appointed successor to Kofi Eburahin. This, in normal circumstances, is a very simple issue of fact which could be proved by witnesses – members of the family and non-members-who were present at the family meeting at which the appointment was made. This issue, however, was in some ways complicated by the effect and implications of some previous litigation in respect of the estate. The first litigation appears to be suit No. 26/1957 in the High Court, in which one Kofi Ansah was the applicant for letters of administration in respect of the estate, and the plaintiff herein was caveatrix; the second is a suit in the Agona Local Court B; the writ in that suit was issued on 31 October 1957, the suit was originally numbered 261/57 but the number was later changed to 210/57. In that suit the said Kofi Ansah, claiming to be the successor to Kofi Eburahin, sued eight persons for trespass to a farm of the deceased which he alleged he was administering as successor. The first of the eight defendants in that suit is Kwame Saah, the head of the family, who is the first witness for the plaintiff in this suit, and the third and the fifth defendants are respectively the plaintiff and the defendant in these proceedings. It is apparent on those two proceedings that the second suit was commenced while the administration suit was already pending in the High Court, and that an application for transfer of the trespass suit to the High Court to be consolidated with the administration suit, was refused by the judge of the High Court who ruled as follows: “The grant of letters of administration does not necessarily involve a declaration of who is successor to the deceased according to native custom. That is a matter which can best be decided by the native court.” And again, an application to the High Court to refer the issue of succession raised in the administration suit to a local court, was also refused by the learned judge of the High Court, as disclosed in the judgment in the administration suit delivered on 11 January 1958. That judgment of the High Court was tendered in the proceedings before the local court in suit No. 210/57, the trespass suit, the judgment which was delivered on 6 November 1958. The whole of the proceedings of the local court in the said suit No. 210/57, including the judgment of the High Court in suit No. 26/1957, were tendered in the present proceedings before the local court as exhibit B.

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Three other documents were admitted in evidence in this case; one is a judgment of the High Court dated 20 January 1961, dismissing an appeal by Kofi Ansah against the judgment of the local court in the trespass suit, this was marked exhibit C; one is a motion for joinder supported by affidavit sworn to on 19 November 1958, by Kwame Saah, the head of the family, in a suit brought by one Yaw Dankwah against S. K. Ankrah, the defendant herein, and the fifth defendant in the local court suit No. 210/57, and the third is a ruling made by the local court on 22 November 1958, granting Kwame Saah’s application for joinder; the ruling was marked exhibit A and the motion and affidavit were together marked exhibit E. In the evidence given by him in the trespass case, exhibit B, Kwame Saah deposed that at the conclusion of the funeral obsequies of Kofi Eburahin, the family appointed the fifth defendant (defendant herein) successor to Kofi Eburahin. His exact words are:

“A day was fixed for the final obsequies of the late Eburahene I sent to inform the plaintiff but he refused to attend the call. I filed notices and finally performed the obsequies. The family then met and elected the fifth defendant the customary successor to the late Eburahene. We collected £G40, 1 (one) live sheep and (one) 1 bottle of rum as aseda from the fifth defendant.”

The linguist of the family gave similar evidence in that case. Again in paragraph (2) of the affidavit, exhibit E, sworn to in support of his application for joinder, the said Kwame Saah deposed as follows: “That I am the head of Kofi Eburahin’s family and I appointed the defendant herein as successor and inheritor of the deceased person’s movable and immovable properties which include the property, the subject-matter of this action.” But in the present suit, the very same Kwame Saah, giving evidence in support of the plaintiff said inter alia:

“About five years ago, I performed the final obsequies of the late Kofi Eburahin at Gomoa Obil. The next day I sat down with the members of Twidan to find a successor to the late Kofi Eburahin, myself and some of my elders went into consultation to find out a successor to the late Kofi Eburahin and the present plaintiff was unanimously chosen to succeed the late Kofi Eburahin, deceased. We returned from our consultation to the assembly. I instructed my linguist, who rose up and told the people assembled there, that the elders together with the head of the family have unanimously agreed and chosen Eku-Fio (plaintiff) to succeed the late Kofi Eburahin, deceased. The [p.67] of [1966] GLR 60 said Eku-Fio agreed and was made the successor of the late Eburahin, deceased. We demanded from the plaintiff amount of £G40, a live sheep and a bottle of schnapps according to native custom and usage. The said Eku-Fio (plaintiff) paid the said amount. After this the said Eku-Fio (plaintiff) asked leave of the family for consultation. She returned from her consultation and told the families gathered together that owing to the business she was doing at Mankesim, she chose her younger brother, the defendant herein, to look after the affairs until her return from Mankesim. The families agreed and defendant was made a caretaker.”

If the trial had been in a court other than a local court, most of the documents tendered in evidence would have been rejected as inadmissible; and even in the case of those which are admissible, they could only have been admitted upon proper proof. But being a local court all the exhibits including the whole of the proceedings in the trespass case were tendered during the course of the defendant’s case, even though no foundation had been laid for them during the course of the plaintiff ‘s case, and even though Kwame Saah was not cross-examined upon the evidence he had given in the earlier case and facts he had deposed to in the affidavit, which appears to be inconsistent with his evidence in the present case. This procedure is permissible in a local court, where the practice and procedure are regulated by customary law, and since the customary law has no strict rules of evidence, all matters relevant to the dispute and which can assist the local court in arriving at the truth to enable it to resolve the issue, are, generally speaking, admissible even though they may strictly not be admissible in a court of law: see Asenso v. Nkyidwuo1 and Akomea v. Biei.2

Before the defence closed, the local court magistrate recalled Kwame Saah, and examined him, and also caused him to be cross-examined by the defendant on the statements he had previously made which are inconsistent with the testimony he had given. The procedure so adopted by the local court, to give Kwame Saah opportunity to explain a matter first raised after he had given his evidence, is in accord with customary law as it is with common law rules of procedure.

The explanation which Kwame Saah gave for his previous testimony that the family appointed the defendant successor to Kofi Eburahin is that:

[p.68] of [1966] GLR 60

“According to custom if a successor or chaplain [sic.] in asafo company comes before the family or the asafo company and appoints his accredited representative and if approved by the family or the asafo the party so appointed becomes the sole representative of the duties of the person who appointed him.” And when cross-examined by the defendant he further said: “The custom is when a successor or chaplain [sic.] comes before a family or asafo and appoints one to act for them or her and the family or asafo approves of it then the one acting is to fulfil as if the real person is alive.” The evidence given by the defendant and his witnesses is a repetition of the testimony given by Saah in the trespass case, exhibit B. The local court magistrate, having reviewed the evidence given by both sides, accepted the case of the plaintiff including the explanation given by Kwame Saah for his previous testimonies, and entered judgment for the plaintiff for the relief she sought.

The defendant appealed from that judgment of the local court to the High Court, and the High Court set the same aside on two grounds each of which is based upon exhibit E, the proceedings and judgment in the trespass case; these are: (i) that the plaintiff is estopped by the proceedings which included the evidence of Kwame Saah the head of the family and that of the linguist of the family, from disputing that the defendant is the duly appointed successor to Kofi Eburahin, since, as the learned judge said inter alia: “The proceedings in exhibit B were conducted in the local language and to the hearing of the respondent who had every opportunity of correcting any mistakes that her own witnesses were making.

In the present action all that the defendant-appellant did was to give evidence in almost precise terms as given by Kwame Saah and his witnesses in the Kofi Ansah case and to tender exhibit B in support of the evidence given by him and his witnesses”; and (ii) the decision in exhibit B that the defendant was successor to Kofi Eburahin is binding upon her as res judicata. In support of this view the learned judge cited the case of R. v. Hartington Middle Quarter (Inhabitants).3

Two grounds of appeal were filed and argued; these are:

“(i) Because the learned judge was wrong in holding that the plaintiff-respondent-appellant was estopped per rem judicatam from putting forward the claim she did.

[p.69] of [1966] GLR 60

(ii) Because the learned judge was wrong in setting aside the judgment of the local court magistrate on facts.”

Arguing the first ground, learned counsel for the plaintiff submitted that the learned judge of the High Court misdirected himself in holding that the judgment in exhibit B operated as res judicata, because the parties to the present suit were co-defendants in the trespass suit, having a common interest, and without conflict of interest. In support of this submission, counsel cited Cottingham v. Earl of Shrewsbury.4 Learned counsel for the defendant on this ground submitted that in the suit, exhibit B, there was conflict of interest between the parties herein as to who is successor to Kofi Eburahin. The law on the subject as to when a decision in a case can operate as res judicata between co-defendants, is clearly set out in Halsbury’s Laws of England (3rd ed.), Vol. 15, p.199, para. 376 as follows: “In order to create a res judicata as between co-defendants, three conditions are requisite: — there must be a conflict of interest between the defendants concerned; it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and the question between the defendants must have been finally decided.”

The case of Cottingham v. Earl of Shrewsbury (supra) cited by counsel for the plaintiff was decided upon that principle.

The question then is, was there a conflict of interest between the co-defendants in the proceedings in exhibit B? A few extracts from the judgment in exhibit B itself will answer the question: “The case for the plaintiff is as follows: ‘The late Eburahin of Gomoa Obil was his uncle and after his death about three years ago, the family head, the second defendant herein made him the customary successor’. By succession, he became the absolute owner of the whole estate, movable and immovable of the late Eburahin. . . Defendants called three witnesses prominent among them is Nana Obenkye Atta III, Adontenhene of Gomoa Amanfro. He deposed on oath that he, though a divisional chief, is a son to the Twidan family and has right under native custom to settle all internal differences in his father’s family. He confirmed the fact that an arbitration was held at which he was the president. The case was between the plaintiff and the members of the family. The plaintiff was found guilty of mismanaging [p.70] of [1966] GLR 60 the properties entrusted to his care as caretaker. He asked him to slaughter a sheep to pacify the family but the plaintiff refused to comply with the award and was deposed by the family … In this very case the plaintiff was tried before Nana Obenkye Atta III, Adontenhene of Gomoa Amanfro. In spite of his position as a divisional chief, he is a male child in the Twidan family and so he is clothed with the necessary powers under the custom to arbitrate on the matter.

The plaintiff’s refusal to slaughter a sheep to pacify the family is a sign of disrespect not only to the family but also to the Adontenhene, their male child, and his deposition is justified.

The plaintiff’s extravagant life has been proved. Since he was appointed the caretaker to such a vast estate, he has not been able to tell us as to what use he has put the proceeds of the farm as well as the huge sums withdrawn.

The letters of administration in his possession is not a clue to his being a successor.” These extracts disclose that the co-defendants in the suit, exhibit B, had a unity of interest, which is to assert that Kofi Ansah the plaintiff in that suit had been deposed as successor to Kofi Eburahin, and as caretaker of the late Eburahin’s estate. Thus the learned judge misdirected himself in holding that R. v. Hartington Middle Quarter (Inhabitants) (supra) applied; consequently his conclusion on the law is erroneous.

Counsel for the defendant submitted that even if the judgment in exhibit B cannot create res judicata between the parties, the proceedings, particularly the evidence given by Kwame Saah, and the linguist of the family, as well as exhibit E, the affidavit of Kwame Saah, operate to estop the plaintiff, a party to the suit exhibit B and a member of the family, from denying that the defendant is successor to Kofi Eburahin. The only principle upon which these matters can operate to estop the plaintiff would be the principle of representation, or holding out, i.e. estoppel in pais. For representation to operate as estoppel it must be representation of fact made to one who is not in a position to know the true facts, and who is consequently led to act upon it to his prejudice. These principles are discussed in full in Halsbury’s Laws of England (3rd ed.), Vol. 15, pp. 223-230. Can it be said that the defendant is likely to be deceived by the evidence given by Kwame Saah and others in exhibit B if that evidence is false, and is there any evidence of injury he has suffered by acting upon such representation or holding him out as a successor? None whatsoever. [p.71] of [1966] GLR 60

At this point it is appropriate to refer to the case of Square v. Square.5 The brief facts as set out in the headnote to the report are as follows: A man petitioning for a decree of nullity of an English marriage on the ground of the survivorship of a former husband of the woman to whom, as the petitioner alleged, she had been married previously in Scotland was met by a plea of estoppel in pais. Particulars of the alleged estoppel were that in an earlier suit in that court by the former husband of the woman for divorce from her on the ground of her adultery with the present petitioner, the petitioner as co-respondent in that suit had expressly adopted a plea of the woman denying the validity of the Scotch marriage, and further that in certain proceedings then taken by the woman in the Scottish court seeking a declaration that she and the petitioner were husband and wife and praying that the former husband of the woman should be “put to silence in respect of false and calumnious allegations by him that he was married” to the woman, the petitioner had not only been party to those proceedings as “curator and administrator” of the woman and “for his own interest in the premises” but had also been a party to the settlement of them, resulting in the former husband of the woman admitting that there had been no legal marriage in Scotland between him and the woman and withdrawing his suit and subsequently marrying another woman in England. It was held that although the petitioner had adopted the plea by the woman denying the validity of the Scottish marriage he had not done so with intention to mislead the woman, whose knowledge of the facts was greater than his own. Both parties were simultaneously making the same statement for a common purpose, neither could be estopped as against the other by the making of it. In the course of his judgment, Langton J., after considering all the leading authorities on the point, stated inter alia6: “It is true that Square himself made the statement quite categorically that the Scotch marriage had not taken place, but he never made it to the respondent. Whatever his knowledge or belief may have been at any moment, he was certainly never in a position to inform, still less to mislead, the respondent upon the subject. Her knowledge of the facts must at all times have been greater than his. The fallacy lies in supposing that because he may have led her to believe that he would always act in a certain way he cannot now be allowed to act differently. A volte-face of this character may open a man to grave reproach, [p.72] of [1966] GLR 60 possibly even to some kind of action for breach of promise or contract, though I do not pretend to see how such an action could lie; but there is no attempted change of any statement of fact made by Square to the respondent. And if considered in the light of the second and third conditions laid down by Lord Russell of Killowen the matter becomes clearer still. Square did not make the statement which he made by his plea in the English proceedings or elsewhere with any intention that the respondent should act upon the faith of the statement. The respondent was at the same time making the same statement upon her own initiative for a common purpose.”

Those words apply mutatis mutandis to this case, and I adopt them. I say that in the suit exhibit B the evidence that Kwame Saah and the linguist of the family gave on behalf of all the parties to that suit, including the parties herein, was not given with any intention that the defendant should act upon the faith of that evidence, indeed that evidence was given equally on behalf of the defendant for a common purpose.

Again, it may be asked, did the success of the defence put up jointly by all the defendants in the suit exhibit B, depend upon proof that one or other of the eight defendants had been appointed successor to Kofi Eburahin, and if so, which of them? The answer is no. The success of their defence depended upon proof that Kofi Ansah, the plaintiff in that case, had been removed from office as successor to Kofi Eburahin or as caretaker of the estate. Therefore when the local court in exhibit B concluded their judgment in the following words: “We believe the case for the defendants to the effect that the late Eburahin’s funeral has been finally observed and that Kweku Tawiah, fifth defendant, is by custom, the successor to the late Eburahin. Plaintiff’s claim is of no weight. We therefore find the defendants not liable to the claim. Judgment for the defendants”; the expression of their belief that the fifth defendant therein, the defendant in this suit, is the successor to Kofi Eburahin, if it can be called a decision at all, is at its best, obiter, and that the only effective decision is the finding that the “plaintiff ‘s [Kofi Ansah’s] claim is of no weight.” I must say that other considerations would have arisen, if the eight defendants in exhibit B had been the plaintiffs, and had together claimed a declaration that the defendant is the duly appointed successor to Kofi Eburahin. [p.73] of [1966] GLR 60

While on this issue of estoppel by representation or holding out there is a piece of evidence of vital importance which should not be overlooked, that is, the proceedings before the High Court in respect of the application of Kofi Ansah for letters of administration to administer the estate of the said Kofi Eburahin. As earlier pointed out, those proceedings must have been pending at the time that the suit exhibit B was instituted, and were concluded while the suit exhibit B was pending. Now, the proceedings in connection with letters of administration show that Kofi Ansah as applicant for letters of administration and the present plaintiff as caveatrix. It follows that when notices citing next-of-kin issued upon Kofi Ansah’s application, the only member of the family who entered a caveat, and later filed an affidavit of interest to initiate a trial of the administration suit is the plaintiff. Order 60, r.17 of the Supreme [High] Court (Civil Procedure) Rules, 1954,7 provides that the caveator must be a person having an interest in the estate of the deceased, or his solicitor or an agent duly authorised by such person. There is evidence that the plaintiff does not live in the hometown of the family where notices citing next-of-kin would be filed. In view of Order 60, r. 17, it cannot be disputed that a person who would be entertained by the High Court as qualified under customary law to enter a caveat in an administration suit would be a person who claims to be successor to the deceased duly appointed by the family; and where no successor has been appointed, then the head of the family, or any member of the family appointed to represent the family in that behalf. How was it then that if the defendant is the successor duly appointed by the family, it should be the plaintiff, a midwife by profession living at Agona Swedru away from home practising her profession, and not the defendant who was at Gomoa Obil in charge of and managing the estate, and not even the head of the family or any other member of the family living at home, who went forward to contest the claim of Kofi Ansah to the grant of letters of administration? It was the defendant himself who tendered the judgment of the High Court in those proceedings in evidence in the present case as part of exhibit B, but he chose to give no “explanation whatever for this extraordinary conduct of his, in sitting by and allowing the plaintiff to litigate her interest in the property, and to contest the claim of Kofi Ansah to succession.

Of course, a possible explanation favourable to the defendant is, that at that date he was not disputing the claim of Kofi Ansah to a right to manage and administer the estate; and that his case is that [p.74] of [1966] GLR 60 it was after the deposition of Kofi Ansah as successor or caretaker that he the defendant was appointed a successor. But that will not make sense because as shown by exhibit B it was about that same time that he, the plaintiff, Kwame Saah and five other members of the family interfered with the estate and were sued by Kofi Ansah for trespass, which means that at that time, he, together with the seven others, was contending that Kofi Ansah had no right to be in charge of the estate. Besides the proceedings both in the administration suit and the trespass suit, exhibit B, disclose that the contention of the family all through was that Kofi Ansah had only been made caretaker of the estate pending the appointment of a successor, and the judgment of the High Court in the administration suit further shows that the sole grounds upon which the learned judge who tried that case rejected the contention of the family is that only uterine nephews and nieces of Kofi Eburahin could constitute his family to appoint his successor and that Kwame Saah the head of the family, the linguist, and the other principal members of the family had no locus standi in the appointment. In those circumstances the defendant’s conduct in standing by and allowing the plaintiff to contest Kofi Ansah’s claim to letters of administration as successor remains unexplained. And now to the second ground of appeal. Counsel for the plaintiff submitted that the simple issues the local court was called upon to resolve are: (a) whether or not the plaintiff is successor to Kofi Eburahin, and if so, (b) whether or not she, with the consent of the family, appointed her brother, the defendant, to act for her. These, counsel submitted, are issues of fact depending upon the credibility and veracity of the witnesses, and that these are matters in which the trial local court has special advantages which the High Court as a court of appeal did not possess. Counsel further submitted that there is sufficient evidence testified to by credible witnesses which fully warrants the conclusion of fact arrived at by the trial local court. In these connections counsel submitted that the learned judge of the High Court misdirected himself in setting aside the findings of fact made by the trial local court.

Counsel for the defendant in reply contended that since Kwame Saah the head of the family, the principal witness for the plaintiff, and the linguist of the family gave evidence in the proceedings exhibit B saying that the defendant had been appointed successor to Kofi Eburahin, the said Kwame Saah and other principal members of the family cannot now be heard to deny that the defendant is the successor. In my view these submissions of counsel for the defendant are untenable for the reasons which I now proceed to give.

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The law as I understand it is that if in litigating a family’s right to property against a non-member or non-members of the family, e.g. against another family, the head, the linguist and other traditional representatives of the family give evidence in their said representative capacities, i.e. for and on behalf of the family amounting to admissions against the interest of the family, that evidence will be binding on all members of the family, and the family will be estopped by it, in a subsequent suit against any other non-member of the family; unless they are able, to the satisfaction of the court trying the subsequent suit, to reconcile their former evidence with their evidence in the subsequent suit, or unless they give satisfactory explanation for the contradictions. That is not the case here, the suit in exhibit B and the present suit are both inter-family disputes, no outsider was involved. So that if any point arises as to inconsistent evidence given by a witness who testified in both cases, that conflict must be considered only in relation to the particular witness who gave the inconsistent testimonies and to no other person. Secondly, where a witness is proved, in a previous suit, to have sworn the contrary of what he testifies in a subsequent suit, two situations can arise. One is where the witness is unable to give a satisfactory account for the inconsistent testimonies; the other is where he gives an explanation which the trial court accepts as reasonable for his former evidence. In the first case, the effect of the contradition is to destroy his credibility and to render the evidence he gives at the subsequent trial negligible; but the earlier testimony or statement used to contradict him is not admissible evidence of the truth of the fact stated therein and is not evidence upon which the court should act to make findings: see Wright v. Beckett,8 R. v. Birch9 and R. v. Golder.10 In the second case, i.e. where the witness offers an explanation for his giving the previous testimony inconsistent with what he testifies in the suit being tried, it will be for the judge trying the case to form his own opinion of the credibility and veracity of the witness, and either accept or reject the evidence given before him; but there again, as stated above, the previous statement or testimony used to contradict the witness, is not admissible evidence of the truth of the fact stated therein. Thus the decision of the trial court, as to the credibility of the witness and the weight to be attached to his evidence, is again a question of fact, and a court of appeal should not interfere with the same except [p.76] of [1966] GLR 60 upon the well settled rules as set out in Watt (or Thomas) v. Thomas,11 cited by the learned judge of the High Court.

The position of the plaintiff’s case then is this: at its very worst, the credibility of Kwame Saah will be destroyed by his previous testimony and render his evidence given at the trial in this case so negligible that it should be excluded. But when Kwame Saah’s evidence is excluded, there still remains abundant evidence given by other witnesses whose credibility is beyond dispute, and which evidence, if believed, is enough to warrant a decision in favour of the plaintiff’s claim that she is the duly appointed successor to Kofi Eburahin; one such witness is the plaintiff’s fifth witness Kojo Anu, head of a family at Gomoa Obil, the hometown of the family of the parties to the suit. He, Kojo Anu, as shown by the evidence, was invited by the head and elders of the Eburabin family to witness the election of a successor to Kofi Eburahin. His invitation is in accordance with customary law, which provides that elders of and respectable members of the community may be invited to witness the election of a successor to a deceased member of any family in the community, even though they may not belong to that family; and this is usually done in cases where there are contested claims to appointment. This fifth witness for the plaintiff testified in examination-in-chief as follows:

“Both plaintiff and defendant’s uncle by name Eburahin died about four and a half years ago. After the final obsequies of the said Eburahin, deceased, the head of family by name Kwame Saah sent for me. I was then in my house at Gomoa Obil. I went and saw that the families had met at the said deceased’s own house. After having taken my seat the linguist of the family told me that they have met for the purpose of electing a person to succeed the late Eburahin, deceased. This done the families together with the sons went for consultation to elect a person to succeed the said late Eburahin, deceased. They returned from their consultation and Ebusua Kyiami Kwamina Acquah rose up and told the families that they resolved at the consultation and have elected Eku-Fio (plaintiff) to succeed the late Eburahin, deceased. Eku-Fio agreed to take up the duties. Ebusua Kyiami the said Kwamina Acquah rose up and demanded an amount of £G40 from the said Eku-Fio for accepting the successorship. They demanded also a bottle of schnapps and a live sheep. All these were paid to the said Obaapanyin Kwamina Acquah in the presence of the whole family. This done, the said Eku-Fio (plaintiff) rose up and told the families that she would like the [p.77] of [1966] GLR 60 defendant to be caretaker for her as she has got lot of business to be done at Mankesim and when that business is over she would come back to take over from him (defendant). Defendant gladly accepted the offer. All the people and families assembled had drinks completed with merriment. This done the meeting came to an end and I went to my house. The said sheep was slaughtered and I had my share. That is all I know in this suit.”

And the evidence he gave under cross-examination in full is as follows:

“You have been at Gomoa Obil during the yearly festival. Anybody who got near the god of the family then is a successor to a deceased family. You came near the god because Eku-Fio has asked permission from the family to act on her behalf. All that I know is that Eku-Fio was made the successor of the late Eburahin, deceased and not you.”

Other witnesses for the plaintiff gave similar evidence. Against this evidence led on behalf of the plaintiff, the defendant, his mother who was his third witness, and one Kofi Obuenor his second witness, who is distantly connected with the family, each gave evidence asserting that it is the defendant and not the plaintiff who the family appointed to succeed Kofi Eburahin, and that the defendant’s dealings with the property was not as acting for the plaintiff. In the course of his evidence the witness Kofi Obuenor, the defendant’s second witness, admitted that he was not at the family meeting held at the final obsequies of the late Kofi Eburahin; and that was the meeting at which all who were present allege that the successor was appointed. At the conclusion of his evidence Kofi Obuenor, the second defence witness, had this to say: “I cannot say to the court that what Kwame Saah has stated on oath is falsehood.” Indeed as aptly stated by the learned judge from whose decision this appeal is brought:

“In the present action all that the defendant… did was to give evidence in almost precise terms as given by Kwame Saah and his witnesses in the Kofi Ansah’s case and to tender exhibit B in support of the evidence given by him and his witnesses.”

With the evidence for both sides as it stood before him, the trial local magistrate, first, felt satisfied with the explanation given by Kwame Saah for the evidence he gave in exhibit B which prima facie conflicts with his testimony in that case, and therefore preferred that evidence together with the other evidence led by the plaintiff to the evidence led by the defendant; consequently he gave judgment for the plaintiff. The High Court therefore should not have interfered

[p.78] of [1966] GLR 60 with that decision based upon facts unless it could demonstrate that it is clearly wrong, either because it is against the weight of the evidence, or because of some principle of law.

Now, I have already pointed out that the grounds upon which the High Court set aside that decision of the local court were not warranted; and I must say further that nothing which has been urged before this court has shown that the exercise of the local court magistrate’s discretion in preferring the evidence of the plaintiff to that of the defendant is not judicial. But more than that I am of opinion that the administration proceedings strongly bear out the reasonableness of Kwame Saah’s explanation.

Again, having regard to the erroneous view which the judge of the High Court took of the law, he, the judge, failed to consider the merits of the case as shown by the evidence. If the learned judge had directed his attention to the evidence given for both sides and weighed it carefully, he would, no doubt, have realised the strength of the unshaken evidence given by the plaintiff’s fifth witness, and have come to the conclusion that even if Kwame Saah’s evidence was expunged from the record, the evidence led for the parties taken together heavily weigh the probabilities in favour of the plaintiff, and consequently, that this is not one of the cases in which a court of appeal can justifiably interfere with a decision of a trial court based upon facts. Had he approached the issues in the proper way, and correctly directed himself on the law, the learned judge would, most certainly, have felt himself constrained to uphold the decision of the local court.

For the reasons given above, I would allow the appeal.

JUDGMENT OF APALOO J.S.C.

I agree. My brother has so fully dealt with the law and the facts that I have not thought it necessary to add anything of my own. I also think that the judgment of the local court should be restored with costs here and in the court below. JUDGMENT OF LASSEY J.S.C.

I also agree that this appeal should be allowed for the reasons given by my brother Ollennu.

DECISION

Appeal allowed.

S. K. T.