COURT OF APPEAL
DATE: 17 MAY 1971
SIRIBOE JSC ANIN AND ARCHER JJA
CASES REFERRED TO
(1) Akomea v. Biei (1958) Oll.C.L.L. 186, C.A.
(2) Paintsil v. Aba [1964] G.L.R. 34, S.C.
[p.173] of [1971] 2 GLR 171
(3) Ababio v. Darkwa (1956) 1 W.A.L.R. 124, W.A.C.A.
(4) Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.
(5) Quaye v. Mariamu [1961] G.L.R. 93, S.C.
(6) Asante v. Sarkis, Supreme Court, 29 November 1960, unreported.
(7) Nubuor v. Ampadu, Court of Appeal, 31 May 1960, unreported.
(8) Philipps v. Philipps (1878) 4 Q.B.D. 127; 37 L.T. 556; 27 W.R. 436, C.A. (9) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18.
(10) Yartey v. Construction & Furniture (W.A.) Ltd. [1962] 1 G.L.R. 86, S.C.
(11) Adejumo v. Abegunde, Supreme Court, 28 June 1965, unreported; digested in (1965) C.C. 154. (12) Taylor v. Taylor, Court of Appeal, 20 January 1969, unreported; digested in (1969) C.C. 47. (13) Crabbe III v. Quaye, Court of Appeal, 31 July 1970, unreported.
(14) Angu v. Attah (1916) P.C. ‘74-’28, 43.
(15) Fori v. Ayirebi, Court of Appeal, 19 January 1970, unreported.
(16) Amissah v. Krabah (1931) 2 W.A.C.A. 30. P.C.
(17) N.W. Salt Co., Ltd. v. Electrolytic Alkali Co., Ltd. [1913] 3 K.B. 425.
NATURE OF PROCEEDINGS
APPEAL from a decision of the Accra High Court in which judgment was awarded in favour of the respondents for a declaration of title to a tract of land and farms, recovery of possession and damages for trespass. The facts are fully set out in the judgment of Anin J.A.
COUNSEL
Dua-Sakyi for the appellants
K. N. Olaga for the respondents.
JUDGMENT OF ANIN JA
Anin JA delivered the judgment of the court. The plaintiffs, members of a land syndicate, instituted this action in the Accra High Court for a declaration of title to a tract of land known as Akwamu Kotoku land situate at Worobong near Begoro. They also claimed recovery of possession of the area trespassed upon, damages for trespass, and injunction against the defendants.
The plaintiffs’ case, as appearing from the statement of claim, is that, as members of a land syndicate, they purchased the land in 1924 from the Begoro stool during the reign of the late Nana Twum Antwi. They entered into possession after the alleged purchase and cultivated cocoa and food crops on the land. Later, between the years 1928 and 1929, the government acquired the land as part of a forest reserve, and they were prohibited from entering the reserve. During the ensuing inquiry conducted by the Reserve Settlement Commissioner, Mr. W. H. Beeton, in 1935 (hereinafter called the “Beeton inquiry” or “Beeton”), the alienation made to the plaintiffs’ syndicate was not disputed either by the Begoro stool or by any other person. The plaintiffs further alleged that after the Beeton
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inquiry, their rights of ownership to the land were confirmed and demarcated on the inquiry plan by an order of the Governor, No. 17 of 1936 (exhibit B) without any objection. The plaintiffs disclosed that in December 1952 their farms were the subject-matter of another forest reserve inquiry (hereinafter called the “Cooke inquiry” or “Cooke”); and they eventually secured the release of their farms. They re-entered their property in 1953. From that date until the commencement of this action in 1962, the defendants, all subjects of the Begoro stool, and therefore bound by the acts of the stool, trespassed persistently on their land despite protests from the plaintiffs.
By an amendment to the statement of claim, the plaintiffs pleaded that the defendants are “estopped by conduct from challenging their title in that they sat by and acquiesced in the plaintiffs’ proof of their title before the Beeton inquiry.” They further pleaded that the defendants are estopped by record on account of the findings of the said commission of inquiry.
In their statement of defence, the defendants averred that they had been in continuous and undisturbed possession of the disputed land for a period of twelve to fifteen years and had cultivated farms out of virgin forest and established farming communities therein. They denied the alleged sale of the land by the Begoro stool to the plaintiffs. They alleged that in 1926 the Begorohene evinced an intention to sell the disputed land to the plaintiffs. But before the actual customary sale and payment of the purchase price could be made, the government incorporated the disputed land in a proposed forest reserve acquisition which came into force in 1927. With regard to the Beeton and Cooke inquiries, the defendants denied that the plaintiffs either laid any claim to the disputed land or were prohibited from entering it or secured its release as alleged. The defendants contended that the release of the said land in 1952 was not due to any representations made by the plaintiffs. The land was in fact released to the Begoro stool for the benefit of the subjects of the stool generally. As subjects, the defendants asserted their native customary right of entering the land and cultivating farms on unoccupied virgin forest land. In the circumstances, they denied having trespassed on the disputed land, and contended that it was rather the plaintiffs who had trespassed on their farms since 1961.
By a later amendment of their defence, they pleaded that the plaintiffs were estopped by conduct from challenging their title to the disputed land. Additionally, they claimed protection under the Farm Lands Protection Act, 1962 (Act 107), and contended that any defect in their title had been cured by operation of law under section 2 (1) of the Act.
The plaintiffs led evidence about their alleged purchase of the land in dispute; the farms they cultivated on the land; the forest reserve acquisition by the government; the Beeton and Cooke inquiries; and finally, about the alleged acts of trespass. The defendants, for their part, adduced evidence in support of the main averments in their statement of defence. They highlighted the non-performance of the guaha custom by
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the plaintiffs and maintained that there was consequently no valid alienation of the land to the plaintiffs under customary law.
The learned judge devoted virtually the whole of his ten-page judgment to a consideration of the rival pleas of estoppel raised by the parties, and upheld the plaintiffs’ pleas.
An important ground of appeal argued before us by learned counsel for the appellants was that the learned judge erred in law and on the facts in holding that the defendants were estopped per rem judicatam by the decisions in the Beeton and Cooke inquiries, and also by conduct in standing by while the plaintiffs proved their title to the land during the said inquiries. When it is recalled that the whole judgment of the court below is devoted to a consideration of the pleas of estoppel relied upon by the parties, it is clear that the fate of this appeal hangs predominantly on the soundness or otherwise of this ground of appeal. It would be necessary, however, at the outset to refer to the concise history of the said inquiries, which is contained at page 104 of exhibit A (the record of proceedings and judgment in the Proposed Worobong Forest Reserve—Akim Abuakwa Portion—by Cooke) tendered in evidence by the plaintiffs-respondents:
“History:
(1) The previous history of this inquiry is long and involved. The proposed reserve lies partly in the State of Akim Abuakwa and partly in Kwahu, and was originally constituted under bye-laws of these states. The bye-laws passed by the former state were numbered 3 of 1928 and after approval by the Governor on December 9th, 1929. The Akim Abuakwa bye-laws contained a proviso that certain lands claimed to have been alienated to strangers should be excluded from the reserve, if after inquiry the claims were found to be valid, while no such provision occurred in the Kwahu bye-laws. It was found that large numbers of claims for areas of alienated land existed in both estates, and as the bye-laws could not for that reason be satisfactorily applied, a notice of the Governor’s intention to constitute the area a forest reserve under section 5 (1) of the Forests Ordinance was issued on June 15th, 1933 and published in Gazette No. 47 of 1933. By issue of this notice the state bye-laws were automatically revoked, and Mr. W. H. Beeton was appointed as reserve settlement commissioner.
(2) Mr. Beeton held an inquiry from 8 October to 23 November 1935, and delivered judgment on the latter date. Order No. 17 of the Governor, dated 29 February 1936, incorporating the findings of Mr. Beeton’s judgment, was published in Gazette No. 16 dated 7th March 1936, but appeals were lodged by five alienation claimants to the West African Court of Appeal. Judgment of that court was delivered on 18 December 1936, allowing the appeals of two of the appellants and ordering that their lands be excluded from the proposed reserve. The cases of the remaining three appellants were remitted to the reserve settlement commissioner with orders to exercise his powers under section 11 of Cap.63 (now section 12 (1)
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of Cap. 122) to assess lump sum compensation for commutation of admitted rights of which the exercise was prohibited. In compliance with this judgment, an order under section 15 (2) of the Forests Ordinance was issued in notice No. 572 published in Gazette No. 53 of 1937, excluding from the reserve the lands of the two successful appellants, Tetteh Kwaku Kwao and Tetteh Kwaku Adjowoo. Mr. Beeton began hearing the remitted claims in July 1937 but was unable to complete his inquiry. Mr. H. C. Ellershaw was therefore appointed reserve settlement commissioner in succession by notice No. 983 published in the Gazette dated 18 September 1937.
(3) Mr. Ellershaw gave judgment on 19 November 1937, but appeals were lodged against this by all parties, which were decided by the West African Court of Appeal on 8 December 1938. The court ruled that Mr. Ellershaw’s judgment was no judgment as it had not been incorporated in an order of the Governor, and that the effect of the court’s previous appellate order of 18 December 1936 was to set aside Mr. Beeton’s judgment in toto, necessitating the delivery of another complete judgment. It was further held that, if Mr. Beeton could not complete the inquiry and another reserve settlement commissioner were appointed, he should rehear the whole evidence de novo before delivering final judgment. The matter rested there while the government considered the implications of the West African Court of Appeal’s judgment, and further action was delayed by the war. Finally in Gazette No. 94 of 1951, notice No. 2397 was published revoking Order No. 17 of 1936 (constituting the Worobong Forest Reserve), and in the same Gazette another notice No. 23999 was published appointing me as reserve settlement commissioner for the area of the proposed forest reserve as amended by the exclusion order issued in notice No. 572 of 1937, mentioned above.”
Mr. Dua-Sakyi in his able argument drew our attention to the above-quoted passages and submitted that the learned judge erred in upholding the plaintiffs’ plea of estoppel per rem judicatam; because the Beeton inquiry did not result in a final unimpeachable judgment. He submitted further that Beeton did not decide anything. Alternatively, if Beeton made any positive findings, then it must be concluded from the setting aside of the Beeton findings, and the Governor’s order thereon, that those findings have been annulled and are of no legal validity or effect whatsoever.
In our opinion, Mr. Dua-Sakyi’s submissions on the judge’s ruling on the plaintiffs’ plea of res judicata are irrefutable; and it is to the credit of learned counsel for the respondents that he honourably conceded that he was unable to support the judgment on that issue. We entirely agree with him. Since the Beeton judgment was set aside on appeal, and the concomitant Governor’s order No. 17 of 1936 was revoked by Gazette notice No. 2397 of 1951; and since the abortive Beeton and Ellershaw inquiries were superseded by the Cooke inquiry of 1952-53, it is clear that the learned judge erred in holding that the defendants were estopped per rem judicatam by the decision in the Beeton inquiry.
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As a matter of fact, the area claimed by the plaintiffs did not form part of the subject-matter of the Cooke inquiry; and the learned judge erred on the facts in holding otherwise. At p. 105 of exhibit A, we read from Cooke’s judgment that “the boundaries of the proposed forest reserve were revised by the Forestry Department.” The revised total area before Cooke measured 71 square miles, of which 48.79 fell within the Akim Abuakwa State, as against the original total of about 130 square miles before Beeton. Even more significant is Cooke’s finding that the lands claimed by,
“7 alienation claimants (including the plaintiffs) were totally excluded from the proposed reserve as a result of the subsequent revision of the boundaries of the reserve … These persons (including the plaintiffs herein) who came to court to make their claims, were informed that they were no longer concerned with the inquiry, since their land had been excluded from the area with which the court was dealing” (vide pages 106-107 of exhibit A). In other words, there was no adjudication of the alienation claims of the plaintiffs by Cooke; since the land claimed by them fell outside the area of the proposed forest reserve as revised. Consequently, the learned judge misdirected himself on the facts by holding that the Cooke inquiry resulted in a res judicata in favour of the plaintiffs as against the defendants. The res, or the subject-matter of the plaintiffs’ claim, not being before Cooke, could not have been adjudicated upon. The plea of res judicata consequently fails, and the learned judge erred in law and on the facts by holding that the defendants were estopped per rem judicatam and that “both the Beeton and Cooke inquiries constitute final judgments.”
In view of the conclusion reached, it is unnecessary to consider the further argument of Mr. Dua-Sakyi that the Beeton and Cooke inquiries, not being lites inter partes or contests between parties about title to land but being rather administrative inquiries which may, but need not necessarily result in final, unimpeachable judgments, could not create res judicata. It is enough to comment in passing that by the combined effect of sections 9 (as amended), 10, 14, 15, 16 (as mended), and 17 of the Forests Ordinance, Cap. 157 (1951 Rev.), adequate machinery has been provided for the trial of disputes as to title to land within a proposed forest reserve either by the reserve settlement commissioner himself or by the appropriate native court or appeal court (or district court under the Courts Decree, 1966 (N.L.C.D. 84)), and for the incorporation of the findings of the trial or appellate court in the reserve settlement commissioner’s judgment. Section 14 makes provision for the extinction, in certain cases, of rights in or over any land in respect of which no claim has been made or of which no knowledge has been acquired at any inquiry. It is therefore our conviction that, generally speaking, a plea of estoppel per rem judicatam can be successfully raised only in cases falling within the ambit of the above-quoted sections of the Ordinance after an adjudication on the merits and the delivery of judgment.
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Turning to the learned judge’s finding in favour of the plaintiffs on the issue of estoppel by conduct, Mr. Dua-Sakyi submitted that that finding cannot be sustained on the facts and in law. Learned counsel for the respondents shared the same view and felt unable to support the learned judge’s finding that the defendants are “also estopped by conduct in standing by while the plaintiffs proved their title in both Becton and Cooke inquiries from disputing the plaintiffs’ title to the land in dispute.” We are in entire agreement with both learned counsel. In the first place, as has been shown above, the Cooke inquiry is res inter alios acta as far as the parties herein are concerned. It did not cover the area in dispute between the parties; neither did the plaintiffs participate in the Cooke proceedings. In the second place, the entire Beeton proceedings and judgment were, as has been recounted in exhibit A above, subsequently annulled and a hearing de novo was ordered by the West African Court of Appeal in its judgment of 8 December 1938.
Reference has also been made to the revocation of the Governor’s order No. 17 of 1936 by the 1951 Gazette notice No. 2397. Since the Beeton proceedings and judgment were consequently annulled and vacated, it was wrong for the learned judge to rely on them for the purpose of establishing the truth or validity of either the alleged acquiescence on the part of the Begoro stool and privies or proof of title on the part of the plaintiffs. The probative value of the annulled Beeton proceedings and judgment on these contested issues of fact is nil. This is not a case where the earlier testimony was being resorted to for the legitimate purpose of challenging the credit of a witness in the pending proceedings. On the contrary, the earlier abortive proceedings were being used—quite wrongly— to establish the truth of essential averments of facts being made in a pending case.
The next important ground of appeal relied on by learned counsel for the appellants was that the learned trial judge erred in law and on the facts by decreeing title in favour of the plaintiffs despite their failure to prove a valid alienation of land under native customary law, and in particular, the non-performance of the custom of cutting guaha. It will be recalled that the gist of the plaintiffs’ claim was that the plaintiffs’ land syndicate purchased the land in dispute in 1924 from the Begoro stool, whereas the defendants contended that there had been no sale in favour of the plaintiffs but mere inchoate negotiations for a sale.
Mr. Dua-Sakyi argued that the onus was on the plaintiffs to establish all the essential ingredients of customary purchase, such as competent contracting parties; mutual assent of such parties; the marking out or inspection of the land and its boundaries, and, if necessary, the planting of boundary trees and fixing of boundary marks; valuable consideration either paid, given or promised; and the cutting of guaha to the vendor stool in the presence of witnesses. On this last ingredient, the law is clear. Reference may be made to Sarbah’s Fanti Customary Laws (1968 ed.), pp. 86-87 and Danquah’s Akan Laws and Customs, pp. 216-219 for the propositions (a) that “the important thing is the cutting of guaha (or
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paying trama in case of a chattel) for ‘guaha cutting’ is the customary way of giving livery of seisin . . .”; (b) “In Akan land sale, the earnest-money or guaha is evidence that the sale is both complete and valid”; and (c) To prove any legitimate purchase of land, the courts have constantly, and rightly, sought to satisfy themselves as to whether this custom has been observed. It is in fact a sine qua non in the system, and where it is not observed, the sale is considered null and void. Ollennu in his Principles of Customary Land Law in Ghana also stresses the need for the performance of a special custom (called by the Akans generally as the “cutting of guaha’; by the Ashantis trama; and by the Ga-Adangbes as ‘yibaa foo’ or, ‘yibaa pom’). While Professor Enchill in his Ghana Land Law at p. 354 acknowledges “the importance of trama and other title transfer ceremonies by saying that their performance is required and must usually be complied with,” he makes the further point that: “the essence of their importance lies in the fact that they serve the primary function of providing conclusive evidence of the character of a transaction as a sale where that is disputed.” And he cites in support of this statement the important dicta of Ollennu J.(as he then was) in Akomea v. Biei (1958) Oll.C.L.L. 186 at p. 188, C.A. that,
“ ’guaha’ is a custom performed in certain parts of Ghana upon sale of land. It signifies the ‘cutting off’ of the title of the vendor from the land and vesting that title in the purchaser. In cases of uncertainty of the nature of a transaction between two persons in relation to land, evidence that the guaha custom was performed is conclusive . . . “
In the case of Paintsil v. Aba [1964] G.L.R. 34, S.C. where there was a controversy whether the transaction in issue was a sale or a pledge, the court held that it was a pledge. Among the reasons given for their conclusion at p. 39 was the one that “there is no evidence of guaha (delivery of seisin) having been cut, and as such, nothing was conveyed.”
In the West African Court of Appeal case of Ababio v. Darkwa (1956) 1 W.A.L.R. 124 at p. 126, W.A.C.A., the plaintiffs claimed title to the Owuram forest land which they asserted had been purchased by their predecessor in 1913 from the Akanteng stool. They were, however, unable to adduce any evidence to show that there had been any public demarcation of boundaries required by custom to establish a sale of land, but they relied on a deed of conveyance made in 1927. Among the reasons given by the court in dismissing the plaintiffs’ claims was their failure to adduce any evidence of sale “as required by native customary law, such as the ceremony of cutting of guaha,’ without which no sale of forest land can be deemed to vest title in the purchaser.”
In the Court of Appeal case of Tei Angmor & Co. v. Yiadom III [1959] 1G.L.R. 157 at p.161, it was held, in a case dealing with the alleged sale of Nkwatia (Kwahu) stool land, that:
“In order to conclude a contract for the sale of land in native customary law certain ceremonies have to be performed before ownership in the land can be transferred to a purchaser. That custom
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is known as the Guaha custom…. After the conclusion of negotiations, if the parties intend the ownership to pass from vendor to purchaser, they agree on a date when the customary ceremony will be performed. They then invite witnesses for the purpose, and proceed to the land. There representatives of each party collect some twigs or branches of trees on the land, and come before the witnesses. The parties face each other, the vendor holding one end, and the purchaser the other end, of the twigs or branches. They then declare the purpose of the ceremony, i.e. that the contract of sale is now being finally concluded, and they break the twigs into two. After this the witnesses receive witness fees, and this concludes the ceremony.”
To the same effect is the description of the ceremony of the cutting of Guaha in Dr. Danquah’s Akan Laws and Customs at p. 317; but it is a piece of string instead of a twig or branch which is broken into two; and he describes the customary fee paid—usually to two witnesses—as domefa (four shillings).
As has been pointed out by Ollennu in his Principles of Customary Land Law in Ghana at p. 116, the mode of performance of the custom of cutting of guaha differs from place to place. It would therefore be necessary to the party alleging customary purchase of stool land in a particular locality to describe the ceremony of guaha actually performed, where, as in this case, issue is joined on the due performance of the custom. In the present case, Mr. Dua-Sakyi drew our attention to the bare and solitary assertion of the second witness for the plaintiffs that guaha was performed, and submitted that this bare, unsubstantiated, allegation was not a sufficient discharge of the burden of proof of due performance of the custom, especially since the defendants denied that the guaha custom was performed. He contended that a full description of the custom actually performed was called for to enable the trial court decide that issue. Mr. Olaga, on the other hand, referred us to pieces of evidence on record in support of his contention that there was ample evidence of the due performance of the guaha custom. He further submitted that it was incumbent on the trial judge to make primary finding of fact on the contested issue of guaha; but since he had failed to do so, this appellate court which had neither seen nor heard the witnesses could not supply that omission. We agree.
As has been repeatedly stated by this court, it is a trial judge’s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that this court can properly adjudicate as to whether the facts are properly found or the inferences properly drawn or the law properly applied. Although this court is not debarred from coming to its own conclusion on the facts, it cannot in this present case resolve the matters in controversy between the parties one way or the other in the absence of findings of the primary or the material facts: see Quaye v. Mariamu [1961] G.L.R. 93 at p. 95, S.C.
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In Asante v. Sarkis, Supreme Court, 29 November 1960, unreported, where the Supreme Court was unable to discover from the record the fact found by the trial Commissioner of Assize warranting the striking out of the plaintiff’s claim it relied on the principle previously applied in the case of Tetteh Nubuor v. Ampadu, Court of Appeal, 31 May 1960, unreported, that:
“The judicial process is a duty to resolve the facts in issue and facts relevant to the issue and then to apply the law to the facts. If the question: What were the facts found? Could not be answered with precision and particularity, the judgment ought to be held unsatisfactory.”
It is unfortunate that the learned judge omitted to make findings of the material facts in issue, especially whether the plaintiffs bought the land in dispute under the native customary law and whether the guaha custom was performed. Had he done so, we could have evaluated the evidence to determine whether the facts were properly found or the correct inferences drawn of the law, especially the customary law of guaha and sale, had been properly applied to the primary facts found. Since these material facts in issue have not been resolved by the learned trial judge, we have no option but to hold that the trial is unsatisfactory.
In a last-ditch attempt to save his clients from the expense and trouble of a re-trial, Mr. Dua-Sakyi in his reply contended that since the plaintiffs had failed to plead specifically the issue of guaha as they were bound to plead all material facts and custom relied upon by them in their claim, by virtue of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 19, rr. 4 and 3 1, the evidence adduced about guaha was inadmissible. He therefore invited this court to ignore this allegedly inadmissible evidence of guaha.
We are unable to agree with him on either limb of his argument. It is true, under Order 19, r. 4: “Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved . . .” The rationale of this rule was thus explained by Cotton L.J. in Philipps v. Philipps (1878) 4 Q.B.D. 127 at p. 139, C.A.: “In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they have to meet when the case comes on for trial.” In the same case, Brett L. J. observed at page 133: “If parties were held strictly to their pleadings under the present system, they ought not to be allowed to prove at the trial, as a fact on which they have to rely in order to support their case, a fact which is not stated in the pleadings.” Philipps v. Philipps (supra) decided that the plaintiff in an action for recovery of land must set out all the material facts upon which he intends to rely to prove his title.
In this case, the alleged purchase of Begoro stool land could have been made either by the native
customary mode of alienation or by the English mode of sale and conveyance. In paragraph two of the statement
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of claim, the respondents alleged purchase of the land from the Begoro stool simpliciter without indicating the particular mode of alienation relied upon. Under Order 19, rr. 7 and 8 of the Supreme [High] Court (Civil Procedure) Rules, the defendants could have asked for further and better particulars of the mode of alienation relied upon. It appears, however, that the appellants were neither embarrassed by this omission nor were they left in any doubt about the mode of alienation being relied upon by the respondents; for, in the statement of defence, they not only admitted knowledge of negotiations for a sale made by the respondents and the stool, coupled with demarcation of the land in the name of the respondent by the Benkumhene (i.e. chief of Begoro) and his elders, but also pleaded that, “before the actual sale and payment thereof and the necessary custom were to be performed, the government had taken steps to incorporate the land in a proposed forest reserve and there had consequently been no sale of the land.” This then was not a case where the defendants had, as a result of a defect in the opponent’s pleading, been put off their guard and were ignorant of the particular mode of alienation being relied upon by the adversary. Quite apart from the state of the pleadings, the case was actually contested on the basis of a customary alienation.
The respondents led evidence of guaha and of such indicia of customary alienation as inspection; demarcation; bargaining and part-payment of purchase-price; and the offer and acceptance of drinks and sheep. No objection was taken by the defendants to the introduction of evidence about the customary mode of alienation. They even cross examined the plaintiffs and their witnesses on the issue of guaha. When it came to their turn to testify, the defendants called expert evidence to show the incompleteness of a customary sale in the absence of guaha cutting; and the bulk of evidence adduced by them tended to show that the acts of the plaintiffs and the stool’s representatives stopped short of a completed sale of land under customary law. Both counsel in their addresses dwelt in turn on the performance or non-performance of guaha. Can it now be legitimately contended that, since guaha was not expressly pleaded by the plaintiffs, the trial court ought to have rejected evidence of the custom let in without objection? Or that this appellate court should ignore the evidence on record about guaha and the customary mode of alienation as inadmissible? On the authorities, the answer is definitely no.
The correct principle is as stated in Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 at pp. 19-20, where the defendant failed to raise the plea of waiver which was a material fact in the defence and therefore ought to have been pleaded, but they adduced, without objection from the plaintiff, evidence of the waiver:
“The object of pleadings is to compel the parties to define the issues upon which the case is to be contested and to prevent one party taking the other by surprise, by leading evidence on material facts of which the other has no due warning.
The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of evidence to establish it.
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There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal, but in our opinion the case is different where evidence, which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the Judge.
In our opinion the evidence as to waiver of forfeiture in this case falls within the latter class, and the trial Judge was bound to take it into consideration, and the appellant not having raised his objection at the trial is precluded from doing so on appeal.”
The principle enunciated above was applied by the Supreme Court in Yartey v. Construction & Furniture (W.A.) Ltd. [1962] 1 G.L.R. 86 at p. 90, S.C. where the appellants had not pleaded their capacity to sue but adduced evidence at the trial, without objection from the respondents, about their appointment and capacity to sue for and on behalf of a community. The court held that once that evidence was admitted without objection, the court was bound to consider it.
Reference may also be made to the following cases: Adejumo v. Abegunde, Supreme Court, 28 June 1965, unreported; digested in (1965) C.C. 154, held that, “Where evidence of a matter not pleaded has been admitted without objection, the court is bound to take it into consideration in arriving at its judgment,” and Taylor v. Taylor, Court of Appeal, 20 January 1969, unreported; digested in (1969) C.C. 47, where it was held as follows:
“A distinction can be made between evidence which is per se inadmissible and evidence which would have been rejected as inadmissible upon an objection being taken at the trial … Unless the evidence sought to be excluded is the type which is inadmissible per se, this court will not allow a party to the proceedings to complain about any evidence led in the trial court as being inadmissible when he had every opportunity to raise formal objection to it at the time when questions were being asked.”
See also dicta in the recent cases of Crabbe III v. Quaye, Court of Appeal 31 July 1970, unreported (hearsay evidence inadmissible per se); and in Fori v. Ayirebi, Court of Appeal, 19 January 1970, unreported, majority decision of Full Bench of the Court of Appeal, where the relevant authorities are gathered.
On the above authorities, it is clear that Mr. Dua-Sakyi (who did not appear for the defendants in the court below but is, of course, bound by the record and by the acts and default of the former learned counsel) cannot now be heard to complain about the reception of evidence on guaha.
With regard to the second limb of Mr. Dua-Sakyi’s argument based on Order 19, r. 31, it is our view that the rule of pleading first introduced
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by the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), has been revoked by necessary implication by substantive law, originally by section 67 of the Courts Act, 1960 (C.A. 9), (which was in force at the time of the trial of the action) and by paragraph 65 of the Courts Decree, 1966 (N.L.C.D. 84), both statutory provisions being indentically worded, and finally by article 126 (1) (e), (2) and (3) of the Constitution, 1969.
Order 19, r. 31 reads thus:
“In all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the tribe or tribes to which it relates.”
Section 67 (1) of the Courts Act, 1960 (now repealed and replaced by the identically worded paragraph 65 (1) of the Courts Decree, 1966 (N.L.C.D. 84)), enacts as follows: “Any question as to the existence or content of a rule of customary law is a question of law for the Court and not a question of fact.” (The emphasis is mine.) Article 126 (1) (e) states that the “common law” is one of the components of the laws of Ghana. And article 126 (2) enacts that, “The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.” (The emphasis is mine). Article 126 (3) defines “customary law,” as “the rules of law which by custom are applicable to particular communities in Ghana.”
Order 19, r. 31 was enacted in 1954 at a time when a customary law rule relied on by a party in any proceedings had to be proved by evidence and was therefore to be treated as a question of fact. The prevailing rule was that native law and custom material to a case must be proved in the first instance by calling witnesses acquainted with them until the particular customs have, by frequent proof in the courts, become so notorious that the courts take judicial notice of them: see Angu v. Attah (1916) P.C. ‘74-’28, 43; and Amissah v. Krabah (1931) 2 W.A.C.A. 30 at p. 31 both decisions of the Privy Council. With the introduction of the first Republican Constitution, 1960, and the establishment of courts manned almost entirely by Ghanaians, section 67 (1) of the Courts Act, 1960 (C.A.9), was enacted making the existence or content of a rule of customary law for the first time, a question of law for the courts and not a question of fact. Henceforth, the courts are deemed to have judicial knowledge of the customary law, as they are deemed to have judicial notice of any other of the laws of Ghana. A special procedure was at the same time provided under section 67 (2) and (3) of the Courts Act, 1960 (C.A. 9)—(see now paragraph 65 (2) and (3) of N.L.C.D. 84)—for a form of judicial inquiry to be invoked by the courts as and when the need is felt during the hearing of a suit for the ascertainment of the existence of or content of abstruse or lesser-known rules of customary law.
[p.185] of [1971] 2 GLR 171
Since the present position is that the existence and content of a customary law rule is, in the words of the Courts Decree, a question of law for the courts and riot a question of fact, and since under the Constitution, 1969, the rules of customary law including those determined by the Superior Court of Judicature are part of the common law of Ghana, there is now no longer any rhyme or reason for the pleading of rules of customary law which are treated as questions of law. Order 19, r. 31 has, in our respectful view, been repealed by necessary implication with the enactment of section 67 (1) of the Courts Act, 1960, now repealed and replaced by paragraph 65 (1) of the Courts Decree, 1966 (N.L.C.D. 84), and the promulgation of the Constitution, 1969 (vide article 126 (1) (e), (2) and (3)). And since the Supreme Court of Judicature Act, 1875 (38 & 39 Vict , c. 77), the general rule of pleading has been that a party need not plead law or evidence: see N. W. Salt Co., Ltd. v. Electrolytic Alkali Co., Ltd. [1913] 3 K.B. 425. Order 19, r. 4 only requires the pleading of material facts; neither law nor evidence. For the above reasons, we reject Mr. Dua-Sakyi’s second argument based on Order 19, r. 31.
It is common ground between both counsel in this court that the learned judge should have made primary findings about the alleged performance of guaha, as indeed about all other material issues of fact, such as completed customary sale; possession and the respondents’ acts of ownership; whether the land allegedly trespassed upon by the appellants was virgin forest or not; and whether the land was in the effective occupation and ownership of the plaintiffs prior to the acquisition of the forest reserve by the government and the two inquiries. Although, sitting in this apellate court, we are not debarred from evaluating the facts as found by the trial judge, yet we cannot in this present case discharge the function assigned to the trial judge of resolving matters in controversy between the parties. The perception and the resolution of the facts in issue are within his sole and exclusive jurisdiction.
In the circumstances, we are driven to the conclusion that the trial of the case was unsatisfactory and that there must be a re-trial. We would therefore allow the appeal and set aside the judgment appealed from, together with the order as to costs and damages. We hereby remit the case to the court below for a hearing de novo by a different judge. The successful appellants shall have their costs in this court, assessed at N¢631.75. Costs of the abortive trial to abide the result of the rehearing.
DECISION
Appeal allowed. Re-trial ordered. S. A. B.
