ASANTE v. BOGYABI AND OTHERS [1966] GLR 232

Division: SUPREME COURT

Date: 14 MARCH 1966

Before: SARKODEE-ADOO C.J., APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Nubuor v. Ampadu, Court of Appeal, 31 May 1960, unreported.

(2) Bruce v. Attorney-General, Court of Appeal, 25 November 1957, unreported.

[p.234] of [1966] GLR 232

(3) Larbi v. Cato [1960] G.L.R. 146, C.A.

(4) Russell v. Martin (1900) 1 Ren. 193.

(5) Tsrifo V v. Dua VIII [1959] G.L.R. 63.

(6) Yaw v. Domfeh [1965] G.L.R. 418, S.C.

(7) Craven v. Craven (1957) 107 L.J. 505, C.A.

NATURE OF PROCEEDINGS

APPEAL from the judgment of Acolatse J. (as he then was), in the High Court, Accra, wherein he gave judgment for the respondents in an action for a declaration of title to a house and cocoa farms.

COUNSEL

G. R. M. Francois for the appellant.

Harold Darko for the respondents. JUDGMENT OF SIRIBOE J.S.C.

This appeal is from the judgment of Acolatse J. (as he then was) delivered in the High Court, Accra, on 1 October 1962, and concerns a piece or parcel of land with house No. G1 thereon situate at Kwabeng in Akim Abuakwa, and 21 cocoa farms, full particulars or descriptions of which as to boundaries are set out in the statement of claim and defence filed.

By that judgment, the learned judge dismissed the claim of the plaintiff-appellant (hereinafter referred to as the plaintiff) for a declaration of title to the house and farms in question, together with £G500 damages for trespass, and an injunction to restrain the defendants-respondents (hereinafter referred to as the defendants) respectively and their agents from interfering with his possession and enjoyment as beneficial owner of the said properties. Instead, there was judgment entered for the first, second, third and fourth defendants on their counterclaim for title to the said properties as being the properties of the Aduana family of which the plaintiff and the first four defendants are members, the remaining three defendants were the children of some of the male members of the family.

It is appropriate to mention at this stage that as disclosed by the evidence, the Aduana family own the Mankrado stool, and that the person appointed to occupy the stool automatically becomes the head of the family. Apart from one house (which does not form part of the subject-matter in dispute), the Mankrado stool as admitted by the parties, has no property of its own. Members of the family who are appointed to occupy the stool retain their own self-acquired properties whether they vacate the stool by abdicating, or through the process of destoolment, or death.

The present dispute arose as a result of the death of one Kwaku Tenkorang, a member of the family who was the Mankrado until his death some time in 1951. Tenkorang’s only brother of the full blood one Tawoo, predeceased him in the year 1914, so that by the death of [p.235] of [1966] GLR 232

Tenkorang, their immediate line became extinct, they being the only issue of their deceased mother one Yaa Tenkorangmaa. The latter was a cousin to both the mother of the plaintiff called Kesewa, still alive, and Nyarkoa (deceased), the mother of the first and fourth defendants. The second defendant is the direct maternal nephew of the first and fourth defendants. As to the third defendant, the evidence does not state exactly how he is related to the others.

The case for the plaintiff is that the house in question was the self-acquired property of his uncle Tawoo who made a customary gift of it to him in the year 1914 at a time when the plaintiff was attending the Abetifi Training College and that it was the plaintiff’s mother Kesewa, the plaintiff’s ninth witness, who paid the aseda of ten shillings and six pence on his behalf at the time the gift was made in the presence of people, both outsiders and members of the family, some of whom are dead.

In addition to the house, Tawoo also gave him his Raleigh bicycle and five of his cocoa farms which he cultivated jointly with Tenkorang. All this, according to the plaintiff, happened before Tawoo’s death some time in the year 1914. Tenkorang, the plaintiff went on, looked after the house for him until the year 1919, when he wanted to transact business with it, and so it became necessary for exhibit H (the deed of gift) to be prepared by Tenkorang for him. Apart from occupying the house and controlling it as his property, the plaintiff has since the gift improved upon it, and has also acquired a piece of land abutting the house on which he has erected a £G17,000 concrete storey building.

About eight months prior to Tenkorang’s death in 1951, the latter sent for the plaintiff from Kumasi where he was then operating as a timber merchant and upon his arrival, Tenkorang made a gift of all his cocoa farms including those jointly made with Tawoo to him. This was at a meeting of members of the family including some outsiders specially convened by Tenkorang, where he announced that what he was doing was in fulfilment of the declared wishes of both himself and his brother Tawoo. The documents covering most of these farms which were apparently the subject-matter of purchase made by Tenkorang were then and there handed over to the plaintiff, who produced a bottle of schnapps as aseda (i.e. thanksgiving) with which, the evidence continues, the first defendant who was also present, poured libation and the remainder was drunk by all those who had gathered there. Following the said gift, the plaintiff says that he appointed one of his cousins, Kwadjo Amankwa, the plaintiff’s seventh witness, a son of the late Tawoo, as caretaker of the farms, who accounted for the proceeds of same to him before the death of Tenkorang.

[p.236] of [1966] GLR 232

When Tenkorang died the family met and appointed the plaintiff as his successor in his private capacity, for which he paid an aseda of £G2 8s., and the first defendant who was appointed to succeed to the deceased as the Mankrado, also paid an aseda of £G50. It was after this, that with some reluctance (being a Christian) he accepted the stool which the first defendant relinquished on grounds of ill-health. The plaintiff was later destooled after occupying it for a period of about ten years. As a result of the defendants’ interference with his possession and enjoyment of the properties as owner thereof, since his destoolment, he instituted this action claiming the reliefs aforementioned.

The defendants on the other hand deny the plaintiff’s allegation of the gifts, and further contend that the properties in question are for the Aduana family and became such, following the death of Tenkorang whom they allege, succeeded to Tawoo and one Badu’s properties. They further allege that after Tenkorang’s death, the family met and resolved that the said properties be attached to the Mankrado stool. Thereafter, the first defendant was appointed to succeed to both; he accepted the appointment and paid an aseda of £G50, but had to give it up to the plaintiff on grounds of ill-health. Although the plaintiff has been destooled as Mankrado and has been replaced by the first defendant, the plaintiff still refuses to surrender the properties in dispute to him.

In the course of his judgment dismissing the plaintiff’s claims and entering judgment for the defendants in the manner already stated, the learned judge said as follows:

“The whole evidence for the plaintiff and the defendants resolved itself upon the credibility of the basis of the plaintiff’s claim and the defendants’ case in answer thereto. I have assessed each witness who gave evidence before me in respect of their demeanour in the witness box. The plaintiff’s mother is an old woman, hard of hearing, I gathered the impression her evidence was to protect her son in his claim to the properties that they were given to him by way of customary gifts in the presence of witnesses.” Pausing here for a moment, I would observe that the learned judge failed to point out in what respects that witness’s alleged hardness of hearing affected the evidence she gave or how it affected the plaintiff ‘s case. The mere fact that her evidence tallied with that of the plaintiff did not necessarily mean that she was protecting her son’s claims before the court, for apart from this witness, there were eight others called by the plaintiff some of whose evidence as will be seen presently, quite clearly supports the plaintiff. [p.237] of [1966] GLR 232

The learned trial judge then went on, “In my opinion the gift alleged in each case did not have as much publicity as it should, having regard to the nature of the gift. . . “ He had, before coming to this latter finding, expressed himself in the following words which seem to be the main ground of complaint as far as this appeal is concerned. He said: “I am aware that it is difficult to sift the truth from the evidence of two contesting parties lined up against each other as if it were a team of cricket eleven and may the best side win.” From that judgment the plaintiff has appealed to this court. Before the hearing was begun, it was brought to the notice of the court for the first time, that the first defendant Kofi Mensah had died since the judgment of the trial court. This was confirmed by learned counsel for the defendants who also informed the court that the second defendant is the present acting Mankrado and head of family. Consequently, both counsel consenting, it was ordered that the second defendant be substituted in that capacity for the appeal to proceed. The first ground of appeal argued that:

“The learned judge of the court misdirected himself in holding that the sifting of evidence for the truth in a case in court is like lining up a ‘team of cricket eleven and may the best side win.’ This misdirection of looking for the best side rather than for the best evidence, irrespective of side, led to personalities and casting of aspersions on youth or age or hardness of hearing.”

Dealing with this ground of appeal, counsel for the plaintiff took the court through the evidence in support of the plaintiff’s case and then cited these two cases: Nubuor v. Ampadu1 and Bruce v. Attorney-General.2

Relying on these cases, counsel argued that the learned trial judge failed in his duty to make a critical examination of the evidence given before him with the result that he made no findings of fact to enable him to say why he preferred the defence case to that of the plaintiff. The proper test to be applied in evaluating the evidence adduced at the trial, counsel contended, was not considered by the learned judge. The other ground of appeal dealt with concerns the learned judge’s finding that the gift in each case did not have as much publicity as it should. Arguing that ground, learned counsel referred to the evidence concerning the two customary gifts, the aseda paid in each case, the exercise by the plaintiff of rights of ownership and the additions made by him to those properties over a number of years to [p.238] of [1966] GLR 232 the knowledge of the family. All that coupled with the evidence about the approval given by the then Omanhene of Kibi and the Jasehene of Kwabeng to the plaintiff ‘s affidavit of ownership sworn to in support of the deed of gift, counsel urged, constituted sufficient publicity which satisfied the requirements of a gift of the type of properties in dispute. It was accordingly submitted on behalf of the plaintiff that the learned judge erred in rejecting his claims on the ground of inadequacy of publicity of the said gifts. [His lordship then reviewed the evidence and continued:] I am therefore of the view that there is ample evidence to support the customary gifts, the possession and user of the subject-matter by the plaintiff long before his enstoolment, which have been continued by him since his destoolment about seven years ago. There is also evidence which is admitted by the defence that apart from Tenkorang not accounting to any member of the family for the proceeds of the farms which were in his possession, he also made gifts of some of the farms to other people, namely, Lawrence Ernest Asumaning son of the late Tawoo; Kromo— daughter of Tenkorang; Abena Koranteng and one Abena Tenkorangmaa. All this he did, as the evidence shows, without reference to the family. This unfettered exercise of his rights over the properties is clear evidence that he was in control thereof as an individual owner capable of disposing of them as he chose prior to his death.

In the circumstances, the burden, in my view, shifted onto the defence to show that the properties in question were family properties and not self-acquired as contended by them: see the case of Larbi v. Cato3 where the Court of Appeal cited the case of Russell v. Martin4 and said as follows 5: “While it is true that customary law requires that the presumption in favour of family property should be rebutted by evidence, and that the onus is upon the one who asserts sole ownership, that onus shifts once it is shown that that person has been dealing with the property as his own, or that it came to him by gift or by testamentary disposition from one who dealt with it as his own.” It thus becomes necessary to refer to the following piece of the defence pleading while considering the case which they put up:

“In further answer to paragraph (5) of the statement of claim, the defendants say that after the death of Kwaku Tenkorang (the only surviving real brother of Tawoo) it was resolved by the [p.239] of [1966] GLR 232 whole family at a meeting before the head of the family, that is, first defendant, that the whole of the properties left by Tenkorang should attach to the Mankrado stool and no individual should take the properties.”

It was argued on behalf of the defence that the reason for the meeting, and for the resolution allegedly passed thereat, was that by the death of Tawoo and Tenkorang their immediate line of succession became extinct. Whether anything of the sort did take place at all, the contrary opinion of which I hold, I am of the further opinion that the reason assigned for it seems to be rather the more conceivable cause of why the two brothers in their lifetime agreed to dispose of their self-acquired properties in the manner described by the plaintiff and his witnesses. Now, having pleaded in the manner set out above, it was expected that the defence would lead evidence to prove that averment so pleaded, but surprisingly enough, this is what the first defendant says about it, “I was present at the funeral of Tenkorang. I was the one appointed by the family to succeed to the properties of Tenkorang. The properties have nothing to do with the Mankrado stool.” That certainly is in conflict with the pleading just referred to, making the story of the alleged meeting unbelievable and thereby counsel’s arguments based thereon wholly untenable. But perhaps a more significant point to be observed is this material conflict between the first and second defendants. According to the former, he was regularly with Tenkorang looking after him during his illness, and Tenkorang did not say anything to any member of the family when he was about to die. The second defendant on the other hand said it was he who took Tenkorang to the hospital at Koforidua then suffering from a stroke and later brought him back to Kwabeng. Although Tenkorang was unable to speak, he regained his power of speech about five days before he died, and that during that brief period, Tenkorang convened a meeting of the family (the plaintiff, plaintiff’s first witness, plaintiff’s second witness, plaintiff’s fourth witness and plaintiff’s sixth witness not being present). At that meeting, Tenkorang told them about an amount of £G1,500 he received from the first defendant for safe-keeping, but which amount he Tenkorang had spent on his building. Tenkorang then asked the first defendant to look after his wife and children and at the same time handed over all his properties to the first defendant as caretaker. The question then arises — Which of the two defendants is to be believed? Before attempting to answer that, it is, I think, necessary to examine further the defence case and so first that of the defendants’ first witness.

[p.240] of [1966] GLR 232

No doubt, the purpose of calling the defendants’ first witness, Okyeame Kofi Abokyi, who admitted in cross-examination that although he is the linguist to the Abontendomhene of Kibi, nevertheless he attended the funeral of Tenkorang as the representative of the Omanhene of Kibi bearing the latter’s linguist stick, was to corroborate the defence’s contention that the first defendant was appointed in the dual capacity as successor to Tenkorang’s properties as well as to the Mankrado stool. He is the witness to whose evidence, learned counsel for the defence in his arguments urged this court to attach great importance, on the ground that he is an independent witness having no interest in the case one way or the other. Suffice it to say, however, that on this issue of the appointment of the first defendant, the defendant’s first witness’s evidence rather weakened the defence case; for after stating that he was present at the funeral and giving some confused evidence about what transpired there, he ended up under cross-examination by saying, “At that meeting nothing was said about succession to properties apart from the appointment to the stool which Kofi Mensah [referring to the first defendant] declined on ground of ill-health.” I am therefore constrained to hold that that piece of the defendants’ first witness’s evidence considered together with what he said about the aseda, namely, that the ordinary successor to a deceased person pays £G14s. or £G2 8s. but the successor to the Mankrado stool pays £G50 as aseda, substantially supports the plaintiff’s case that the appointment of the first defendant was in respect of the Mankrado stool and nothing more.

Another piece of evidence from the defence side which tends to support the plaintiff’s case is that of one Kwabena Poakwa, an older member of the Aduana family, and it is this:

“I know the plaintiff has made an addition to the house in question. There was no property attached to the Mankrado stool when Tenkorang was made a Mankrado except one house [admittedly not the one in dispute] in which the stool is housed.”

Where admissions relevant to matters in issue between parties to a case are made by one side, supporting the other, as appears to be so in the instant case on appeal, then it seems to me right to say that that side in whose favour the admissions are made, is entitled to succeed and not the other, unless there is good reason apparent on the record for holding the contrary view: see the case of Tsrifo V.v. Dua VIII,6 where Ollennu J. (as he then was) in the course of that judgment enunciated the following principle which has recently

[p.241] of [1966] GLR 232 been quoted with approval by this court constituted by Mills-Odoi J.S.C. (presiding), Apaloo and Bruce-Lyle JJ.S.C. in Yaw v. Domfeh7:

“ ‘Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible’.” I find nothing apparent on the record which precludes the application of the above principle to the present case.

Concerning the house in dispute, the evidence of the second defendant who described himself at the trial as acting for the first defendant as Mankrado and the leading defendant in the case, was that he was a small boy aged about three years when Tawoo died in 1914. As such he could not know if Tawoo gave away his house before he died.

With regard to the cocoa farms in dispute, the first defendant’s answer given to a question by the trial court was that:

“Tenkorang in his lifetime had farms of his own. Some of the farms in dispute are his own properties and the others to which he succeeded. I cannot tell the number of farms which are Tenkorang’s own properties in this action because they were being cultivated in different areas.”

By their own evidence just referred to, it is quite clear that the two principal defendants portrayed complete ignorance about the true position of the properties in dispute. For them to succeed on their counterclaim, it was necessary in view of the denial by the plaintiff to prove specifically what properties they allege Tenkorang succeeded to, which as contended by them and their counsel, in accordance with custom, he made his own properties and those he succeeded to as family properties, thereby preventing him from disposing of them without the consent of the family. On this issue, the defendants failed lamentably, because it is not sufficient to establish the proof required by merely asserting that Tenkorang succeeded to certain deceased members of the family, and leaving it at that for the court to come to the conclusion that in those circumstances whatever property Tenkorang possessed in his lifetime became family property. To hold so, would amount to laying [p.242] of [1966] GLR 232 down a dangerous proposition of customary law, namely, that in every case a successor’s properties (whether acquired by him before or after his appointment as such) becomes family properties, even though, as happens in many cases, the deceased may die leaving no estate at all, or where he did, it may be of no economic value. Another example is where the deceased died leaving an estate, but it was subsequently sold to defray debts incurred by him prior to his death, thereby leaving nothing of his in the hands of his successor. In such cases, I am of the opinion that it would be repugnant and contrary to all principles of natural justice and good conscience to hold in modern days that the self-acquired properties of a successor must be held to be family properties simply because of the succession.

I think the correct opinion is that, it is only where it can be shown that the estate left by the deceased is substantial, proceeds from which the successor assumes possession of, which he either uses in acquiring more properties, or for the improvement of his own properties, or applies the same to his own use in some other way, that his, and those properties succeeded to by him, can rightly be said to be family properties, which cannot be disposed of by him without reference to the family. As already stated the defendants failed to prove anything of the sort.

On the other issue concerning the alleged resolution passed to attach Tenkorang’s properties to the Mankrado stool, as well as the alleged appointment of the first defendant to succeed to the properties and the stool, no satisfactory evidence was led in proof of the same.

Thus having failed to establish their counterclaim, the learned judge ought not to have given judgment for the defendants as he did, for it was based upon an inadequate consideration of the evidence given before him. It is clear from the said judgment that the learned judge, with all due respect, fell into great error; that of failing in his duty to resolve the facts in issue and facts relevant to the issue which would have enabled him to come to the correct conclusion that the plaintiff was entitled to his claims before the court. The two cases relied on by counsel for the plaintiff, I therefore agree, are directly in point. In Nubuor v. Ampadu (supra) the court after allowing the appeal ordered a retrial as was done in the case of Craven v. Craven.8 On the other hand, in Bruce v. Attorney-General (supra), the Court of Appeal did not consider it necessary to follow that procedure. The portion of the trial judge’s judgment which came before the court for consideration was as follows, “In view of the uncertainty of the evidence, I do not think the plaintiff has established his claim,

[p.243] of [1966] GLR 232 although it is all very borderline. There will be judgment for the defendant with costs.” In his judgment van Lare (then Acting Chief Justice) said9:

“Where a judge says, ‘it is all very borderline’ I am afraid he cannot be taken to have made up his mind one way or the other with a degree of certainty. . . Under the circumstances this Court is left to decide for itself the point in dispute from the proper inference to be drawn from the evidence as a whole.” It accordingly allowed the appeal in favour of the plaintiff after considering the evidence. I find a similar situation in the instant case where the learned judge in his judgment expressed himself thus, “I am aware that it is difficult to sift the truth from the evidence of the contesting parties lined up against each other as if it were a team of cricket eleven and may the best side win.” Such expression and others used by him, and his final conclusion considered together in the light of the evidence appearing on record as reviewed in this judgment, shows that he cannot be taken to have made up his mind one way or the other with that degree of certainty as to the matters in issue. Therefore following the practice adopted in Bruce v. Attorney-General (supra) I would say that upon proper inference to be drawn from the evidence as a whole, the plaintiff is entitled to judgment on his claims for declaration of title, and for injunction; though not for damages, because on his own showing, he has been in possession of the properties throughout.

In the circumstances I would allow this appeal and set aside the judgment of the trial court. In substitution therefor, I would enter judgment for the plaintiff for a declaration of title to the house and farms in question, and also for an injunction as claimed, but would dismiss the other relief for damages for trespass for the reason stated.

JUDGMENT OF SARKODEE-ADOO C.J.

I agree.

JUDGMENT OF APALOO J.S.C.

I also agree.

DECISION

Appeal allowed, claim for declaration and injunction granted.

No damages for trespass.

Counterclaim dismissed.

E. D. K.