ARYITEY v. AYELEY
[HIGH COURT, ACCRA]
DATE: 5TH APRIL, 1962
COUNSEL
G. Koranteng-Addow for the plaintiff-appellant.
W. B. Baddoo (with him P. Swaniker) for the defendant-respondent.
JUDGMENT OF OLLENNU J.
This is an appeal from a judgment of the Accra West Local Court delivered on the 19th October, 1961
dismissing a claim by the plaintiff to the ownership of a piece of land situate at a place called
Mgbemgbritey village, Mataheko, and damages for trespass. The cause of action as disclosed both in
the writ of summons and in the evidence is that the defendant had made a farm on the said land.
The said land is agreed by both sides to be portion of Sempe stool land. The plaintiff’s case is that the
land was granted and conveyed to him by the Sempe Mantse. The defendant on the other hand
claimed that the said land was sold to him by one Modua Abrahams who claims to be stool father to
the Sempe stool.
The plaintiff did not give evidence in chief. After taking the oath he simply said he relied upon the
statement or particulars of his claim as set out in his writ of summons. He was then cross-examined.
It must be pointed out that this practice of parties to suits in the local courts not giving evidence in
chief and simply saying they rely upon statements previously filed in court is a very risky gamble,
because the mere statement on oath by a person that he relies upon a statement he had filed is not
evidence. Thus if the party is not cross-examined, and if he should turn out to have no witness, there
would be no evidence which the court can properly take congnisance of in support of that party’s
case. But fortunately for the plaintiff, he called a witness, P.W.1, the headman of the area, and
representative of the Sempe Mantse in the area. He gave evidence of the grant of the land to the
plaintiff by the Sempe Mantse. The evidence this witness gave as representative of the Sempe Mantse
was not refuted in any way.
In addition to his evidence that the land was sold to him by the said Modua Abrahams, the defendant
gave evidence that he had sued and obtained judgment against the second witness for the plaintiff for
trespass to the said land, and that at the trial of that suit P.W.2 had said that she had been employed by
a certain person to put some planks on the land and that was how she got to the land. She did not,
however, say who the person was who had employed her to carry those planks. But in this case she
said under cross-examination that she had then discovered the person who employed her to convey
the said planks to the land, and that the plaintiff was that person.
There was nothing to show that the plaintiff knew of that case, in fact he was not cross-examined on
it, and when the defendant sought to tender the judgment in the said case the plaintiff objected on the
grounds that he knew nothing about that case, and that he was away at Kumasi
[p.227] of [1962] 1 GLR 225
when the case was said to have come on. The local court magistrate dismissed the plaintiff’s claim on
the grounds that:
“Plaintiff has not been able to establish and prove his alleged ownership of the said land in dispute. The
conveyance P.W.1 alleges the plaintiff obtained from the Sempe Mantse was not tendered in evidence to
substantiate the alleged conveyance of the said land to the plaintiff, neither did the plaintiff produce any other evidence apart from P.W.l.”
If P.W.1 had given evidence that the Sempe Mantse executed a conveyance of the land in favour of
the plaintiff this observation made by the local court magistrate would be quite in order. But the
witness did not speak of execution of any document by the Sempe Mantse. The evidence he, P.W.1,
gave is as follows: “In 1954, the plaintiff approached me for a plot of land and having shown him
(plaintiff) a vacant place the Sempe Mantse granted and conveyed the said land to the plaintiff.” The
words “granted” and “conveyed” do not necessarily mean conveyance by deed, particularly where it
appears that the grant was by a stool to a subject. The presumption of law is that the conveyance in
such a case would be by customary law unless the contrary is proved.
Again the local court magistrate appeared to think that a whole host of witnesses should be called
upon a particular point before that point could be said to have been proved. It is the quality of the
evidence which matters; quality it is which must be shown to be in preponderance, not quantity.
Thus, in this case, the land being Sempe stool land, the evidence given by an elder of the Sempe stool
who is at the same time the headman in charge of the area for the stool, that the grant of it was made
by the proper authority, i.e. the Sempe Mantse, and that evidence standing uncontradicted, not even
challenged in any way, there was no need whatsoever to call any other witness; and the credibility of
that witness not having been shaken in any way, that evidence is sufficient proof of the grant of the
land to the plaintiff and of the plaintiff’s title to it.
It was submitted by counsel for the defendant-respondent that while the reasons given by the local
court magistrate could not support his judgment, yet this court should uphold his said judgment, on
the grounds that the plaintiff-appellant is estopped by acquiescence. This submission, learned counsel
said is founded upon the evidence led by the defendant-respondent that he has a building on the land.
This submission is misconceived. None of the essentials which must exist together to constitute
acquiescence has been shown to exist in this case. As to the essentials of acquiescence, see Abbey v.
Ollennu,1(1) Korley v. Bruce2(2) and Obobi v. Atseku.3(3)
Now although the local court magistrate did not base his judgment upon exhibit A, the judgment
which the defendant obtained against P.W.2 for damages for trespass, he made comments upon it
which give the impression that he was inclined to regard it as operating as estoppel against the
plaintiff. It is therefore necessary to consider what effect, if any, that judgment has in the case.
Firstly, there being no evidence that the plaintiff knew of that suit during its pendency, the judgment
cannot operate as estoppel against him. Secondly, the defendant based his claim in that suit
[p.228] of [1962] 1 GLR 225
upon possession and so sued in trespass; his title was therefore not in issue. Consequently the
judgment in that case cannot affect the subsequent suit where the title to the land is put in issue.
For these reasons I would allow the appeal. The appeal is allowed, the judgment of the local court is
set aside including the order as to costs, any costs paid to be refunded. For that judgment the
following is substituted: there will be judgment for the plaintiff against the defendant for declaration
of title to the land and £G25 damages for trespass. The appellant will have his costs in this court
fixed at 15 guineas inclusive, and his costs in the local court agreed at £G6 11 s.
DECISION
Appeal allowed.
