ATTAH v. AIDOO AND OTHERS [1968] GLR 362

DIVISION: HIGH COURT, CAPE COAST

DATE: 4 APRIL 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

ACTION by the plaintiff for a declaration that the pledge and sale of family properties were unlawful and for an order to set aside the

[p.363] of [1968] GLR 362 sale. The facts are sufficiently set out in the judgment.

COUNSEL

Okyere Darko for the plaintiff.

I. Abban for the second, third and fourth defendants.

JUDGMENT OF ARCHER J.

The plaintiff, as customary successor of his late uncle Kobina Gurah, on behalf of himself and the family of the late Gurah, claims a declaration of title to and recovery of six farms, described in the statement of claim, from the four defendants, which said properties were unlawfully pledged by the first defendant Kobina Aidoo to the third defendant Alagbade and the fourth defendant Anaman, and later were unlawfully sold at the instance of the third defendant by the second defendant Minnow as auctioneer to the fourth defendant.

The plaintiff seeks also an order setting aside the said sale. He also claims £G10,000 damages for trespass and an account of the defendants’ occupation of the said cocoa farms and for mesne profits.

The plaintiff’s story is that his late uncle Gurah obtained land at Kwanyaku and Dunkwa and cultivated the land into cocoa farms. On his death, Gurah was succeeded by the first defendant, Kobina Aidoo as customary successor who took over the properties of Gurah. During Kobina Aidoo’s administration of the properties, he pledged these farms, without the knowledge and consent or approval of the family, to the fourth defendant and the third defendant. Subsequently, the third defendant Alagbade obtained judgment against Kobina Aidoo in respect of the pledge-debt and seized all the farms (except one) in dispute under a writ of fi. fa. and the farms were sold by the second defendant Minnow, an auctioneer, to the fourth defendant Anaman, by private treaty and not by public auction as required by law. The plaintiff’s case is therefore that as the pledges were made without the knowledge and consent of the head of family and the principal elders, the pledges were of no legal effect according to customary law. Moreover as the sale of the farms was not advertised and the sale did not take place by public auction, the sale should be set aside. In support of his evidence, the plaintiff brought four witnesses, Kwesi Kwakye, the plaintiff’s first witness, his head of family, Kobina Kartah the plaintiff’s third witness, the family linguist and Nana Kwame Ewusi the plaintiff ‘s fourth witness mankrado of Buduata, to prove that he has been appointed customary successor of the late Kobina Gurah in place of the first defendant Kobina Aidoo who was removed for mismanagement of the family properties. The first defendant has admitted that he has been removed and replaced by the plaintiff. I do not think the defendants are in a better position to dispute the plaintiff’s position as customary successor although it has [p.364] of [1968] GLR 362 been suggested that the first defendant has not been removed as customary successor and that the plaintiff has merely been put forward as a champion to claim these properties. I find therefore that the plaintiff has been appointed customary successor.

The next point I wish to deal with is to find out whether or not these properties belonged to Kobina Gurah alone so as to transform them into family property on his death. The plaintiff maintained that it was Gurah himself who obtained the land and cultivated the farms. The first defendant also maintained that he came to the land after he had been appointed customary successor and that he was not a joint grantee. The third and fourth defendants, that is, Alagbade and Anaman on the other hand took the view that Kobina Gurah and his two brothers Kwesi Gyan and Kobina Aidoo, the first defendant, took the grant jointly and cultivated the farms and therefore on the deaths of the two brothers, Kobina Aidoo, the first defendant, continued to be in possession of the farms as a joint owner with a life interest and therefore the properties could not be strictly classified as family properties. Alagbade stated that he settled in the area about 1914 and he used to go round the surrounding villages to buy cocoa and he knew that the three brothers worked together on the land although their village was known as Gurah’s village. Yaw Gyasi the third defence witness, the mankrado of Kwanyaku, stated that the land was granted originally to the three brothers and that he was present when the land was measured and granted because as a member of the grantor-family his presence was desirable. Nevertheless, Yaw Gyasi the mankrado was not the person who granted the land. It was his predecessor who made the grant. There is evidence from exhibits H1-H3 that all receipts for the rent paid to the stool were issued in the name of Kobina Gurah in 1935 by Yaw Kurantsi II, the then mankrado of Kwanyaku. The first defendant also revealed in his evidence that as a young boy he stayed with his own father. When Kobina Gurah died, and the first defendant was appointed successor, the necessary customary rites were performed before Yaw Gyasi the third defence witness as landowner and in his own evidence, he recognized the first defendant as the new tenant. What puzzles me is why did Yaw Gyasi recognise the first defendant as the new tenant when he knew that the first defendant was already before the death of Kobina Gurah a joint tenant. I have considered the evidence very carefully and I am convinced that, as the village was known as Gurah’s village, as the receipts were issued in Gurah’s name, and as there is no evidence that the three brothers cultivated separate portions to the land, it is safe to hold that the land was originally granted to Kobina Gurah. I therefore find that the farms in dispute belonged to Kobina Gurah and on his death, they became family property [p.365] of [1968] GLR 362 under the management and control of the first defendant as customary successor.

The third point I wish to tackle is whether the pledges to Anaman and Alagbade were lawful and valid according to customary law. Ollennu’s book on Principles of Customary Land Law in Ghana at p. 122 states, “The pledge of land has many things in common with the sale and gift of land. Like those other two forms of alienation, pledge must be given wide publicity.” Then at pp. 127-128 the following principle is stated:

“By customary law, no valid alienation of a stool or family land can be made except by the occupant of the stool, acting with the consent and concurrence of the principal members of the family.

The one indispensable person in the alienation of stool or skin land is the occupant of the stool or of the skin, and the one indispensable person in the alienation of family land is the head of the family. But the occupant of the stool or skin alone, or the head of the family alone, is incapable of making a valid alienation of stool or family land. Any conveyance made by the occupant of the stool alone, or by the head of family alone, is null and void ab initio, and any alienation made by the principal elders alone without the occupant of the stool or the head of the family is likewise null and void ab initio. An alienation of stool or family land which on the face of it purports to have been made by the occupant of the stool or the head of the family acting with the consent and concurrence of the principal elders, and with that consent and concurrence evidenced by at least one principal member of the family (e.g., a holder of traditional office like a linguist) is not void, but it is voidable; that is to say, it is valid until it is declared void by a court of competent jurisdiction, at the suit of the family.”

That above are the principles which govern the alienation of family land and the necessary consents which must be obtained. Mr. Gordon R. Woodman, in an exhaustive article on “Developments in pledges of land in Ghanaian customary law” in [1967] J.A.L. 8 at pp. 9-10 states:

“There is no direct authority on the consents necessary for a valid pledge of an interest held by the customary-law corporate persons the stool and the family. Since however a pledge involves incurring a debt and the possible future loss of the interest, it would seem reasonable for the same consents to be necessary for a pledge as for the incurring of a debt without security, or the outright alienation of an interest in land.”

[p.366] of [1968] GLR 362

As the action of customary pledge is akin to a mortgage in certain essential aspects, I wish to rely on what Granville Sharp J.A. said in Adjei v. Appiagyei (1958) 3 W.A.L.R. 401 at p. 404, C.A.:

“A sale of land by the head of family without the assent or concurrence of the rest of the family is not void. It is voidable at the instance of the family, but the court will not avoid the sale if not satisfied that the family has acted timeously and with due diligence and that the party affected by the avoidance of the sale can be restored to the position in which he stood before the sale took place: Manko v. Bonsu ((1956) 3 W.A.C.A. 62). This applies as much in the case of a mortgagee as in the case of a sale if cancellation is sought.”

Then Granville Sharp J.A. continued at the same page as follows:

“It seems to me that in the circumstances of the present case, and in the state of the pleadings, the plaintiff was under the duty to prove (a) that he was the proper person to represent the family . . . in a suit relating to the family property; (b) that the members of family were wholly ignorant of the transaction . . . (c) that the family had not by any conduct subsequent to the date mentioned acquiesced in the transaction; (d) that they had acted timeously and with due diligence; and (e) that the defendant could, on a declaration of the court avoiding the transaction, be put in the same situation that his predecessor occupied before the mortgage was entered into by him.” In the present case before me, I intend to abide by the above five principles or requirements. But in doing so, I wish to remind myself that in such a suit the onus is upon the family to prove that in fact no consent of the principal elders was obtained: see Quarm v. Yankah II (1930) 1 W.A.C.A. 80.

The plaintiff in his testimony attempted to discharge this burden by relying on the evidence of the first defendant who said that if he had consulted the head of his family and the principal elders, they would not have given their consent and so he went to Anaman in the first place and deceived him by representing that the properties belonged to him and two others, namely, Kojo Atta and Kobina Appiah whose names appear on exhibit 2. From this exhibit 2 tendered by the fourth defendant Anaman, it appears that on 7 October 1947, the first defendant, Kojo Attah and Kobina Appiah pledged four cocoa farms to Anaman. Those four farms have been identified and are marked as farms Nos. 2, 4 and 5 in exhibit J. Farm No. 5 contains two smaller farms. This exhibit 2 evidencing the customary pledge was prepared by one Nyarku who is now dead. [p.367] of [1968] GLR 362

But it was signed, through marks and thumbprints, by the first defendant, Kojo Attah and by one Kwame Kwadoo for and on behalf of Kobina Appiah as pledgors. The witnesses to this document were Kobina Kartah, Kwao Odum, Yaw Gyasi, Bikorang, Mrs. Anaman, another Anaman and Nyarku. It is alleged that Kobina Kartah and Kwao Odum are members of the family of the first defendant.

On 15 October 1951, a second document exhibit 4DI was prepared confirming the earlier transaction of 7 October 1947 which was a pledge for six years converting the earlier term of six years into an indefinite pledge. The nature of the pledge was that one-third of the proceeds of the cocoa would be utilised in paying labourers’ wages, one-third for interest and the remaining one-third to liquidate the capital loan. Exhibit 4DI is signed by the first defendant, Kofi Baah as head of family, Kwesi Kwakye, Kofi Arku, Kwesi Krampa, Kofi Ahin, Kojo Yeboah, Kweku Besebi, Kwame Ahin, Yaw Baidu and others. Exhibit 4D1 was prepared by one Asher the defendants’ first witness who gave evidence. The plaintiff’s contention was that none of the persons mentioned in the document represented his family during these transactions and those mentioned did not know about these transactions The plaintiff maintained that Kwesi Kwakye the plaintiff’s first witness was his head of family and had no knowledge of these transactions. Kobina Kartah, the family linguist also had no knowledge of these transactions. Both Kwesi Kwakye the plaintiff’s first witness and Kobina Kartah the plaintiff’s third witness gave evidence and disputed their marks on exhibits 2 and 4D1. Kobina Kartah even offered his specimen thumbprint for comparison with the alleged thumbprint on exhibit 2. The plaintiff denied that Kofl Baah was his head of family. The plaintiff ‘s fourth witness Kwame Ewusi, mankrado of Buduata did not appear to know anything about these farms. When he was asked who had been in possession of the farms in dispute for the past six years, he replied that the plaintiff had been in possession and had been reaping the fruits. In support of the fourth defendant’s case, one Asher the defendant’ss first witness who prepared exhibit 4D1 stated that before the document was prepared there were about ten persons who were introduced by the first defendant as the principal members of his family. Both the fourth defendant and Asher the defendant’s first witness pointed out one Kofi Arku sitting in court as one of the persons who attended the meeting. Both Kwesi Kwakye the plaintiff ‘s first witness and Kojo Kartah the plaintiff’s third witness admitted that Kofi Arku has been attending court and that he was a member of their family. Kojo Arku’s name appears on exhibit 4D1, yet the plaintiff did not choose to put him in the witness-box although the burden of proof that there was no family consent rested upon him. [p.368] of [1968] GLR 362

Bikorang the defendant’s second witness also stated that the plaintiff’s third witness Kojo Kartah, the family linguist was present when exhibit 2, that is, the first document, was prepared in 1947. But the man who seems to have been prominent throughout these transactions was Yaw Gyasi alias Yaw Koranteng, the mankrado of Kwanyaku, the defendant’s third witness. This chief appears to have arranged both the two loans, the first of £G523 15s. and the second of £G260 stated in exhibits 2 and 4D1 respectively. Yaw Gyasi took part in the inspection of the farms before the first loan was granted. He remembered that six persons were present—they include Kojo Attah, Kobina Appiah (nephews of Kobina Aidoo, the first defendant) and Kobina Kartah and Kwao Odum another nephew of Kobina Aidoo. On the second occasion when exhibit 4D1 was prepared ten persons were present and were introduced as the first defendant’s people. The fourth defendant also stated in evidence that when Kobina Aidoo, the first defendant, stated that he wanted the money to pay family debts, Kobina Attah, the family linguist did not object and confirmed what he said. I have considered the evidence very carefully and I have noted that although Asher the defendant’s first witness who prepared exhibit 4D1 is related to the fourth defendant, I find that it was Yaw Gyasi the defendant’s third witness and the first defendant who called him to prepare that document. On the strength of the evidence of the fourth defendant supported by the evidence of Bikorang the defendant’s second witness and Yaw Gyasi the defendant’s third witness, I find that Kobina Kartah the family linguist was present when exhibit 2 was executed. I also find that Kofi Arku who has been attending court and who admittedly is a member of the first defendant’s family was present when exhibit 4D1 was executed. Kwasi Kwakye stated that he became head of family on Gurah’s death but his name appears on exhibit 4D1 as one of the persons who executed the document. Although Yaw Gyasi the defendant’s third witness does not remember and does not know Kwasi Kwakye, it seems that Kofi Baah was the one introduced as head of family at the time.

Has the plaintiff discharged the onus on him? I think not. He has merely alleged that apart from Kwasi Kwakye the plaintiff’s first witness and Kobina Kartah the plaintiff’s third witness, all the persons mentioned in exhibits 2 and 4D1 are not members of his family. But has he told the court, who and who should have given the necessary consent or concurrence? In other words apart from the head of family and family linguist already mentioned, who are the other principal members of the family whose presence or concurrence was necessary? The plaintiff has chosen not to divulge the names of these principal elders. I have therefore come to the conclusion that [p.369] of [1968] GLR 362 the plaintiff has failed to prove that the necessary consent was not obtained. On the contrary, there is abundance of evidence adduced by the fourth defendant and his witnesses that members of the first defendant’s family were present when the two transactions took place. I cannot therefore say that the pledge to the fourth defendant was contrary to customary law.

I shall now deal with the pledge to the third defendant Alagbade. On 13 August 1950, by exhibit C the first defendant borrowed £G52 from the third defendant and executed a written document evidencing a pledge of three cocoa farms as security for the loan. The three farms were identified by Alagbade as the one large farm numbered 3 on exhibit J. Alagbade never went into possession as a customary pledgee although exhibit C stated that the creditor should pluck the cocoa. As the terms of the pledge were not complied with by the first defendant, Alagbade took out a summons in the district magistrate’s court at Swedru and obtained judgment for £G78 plus £G3 5s. costs, vide exhibit 3D1. A writ of fi. fa. exhibit B was issued as a result and four farms described in the account sales exhibit A, were sold to Anaman. Those four farms were identified as Nos. 2, 3, 4 and 5 in the sketch plan—exhibit J.

As the pledge to Alagbade never took effect I do not propose to consider whether that pledge was valid or not. In any case Alagbade obtained judgment and attached the farms allegedly pledged to him together with those pledged to Anaman.

The plaintiff has attacked the sale of these farms on the ground that there was no proper advertisement or notices and as such the sale was irregular. It was further alleged that Minnow the second defendant privately sold these farms to the fourth defendant at the very low price of £G101 when the farms had been pledged for nearly £G783 15s. The relevant court documents were tendered to prove that there was no copy of any auction notice on the court file. The second defendant Minnow explained that it was the deputy sheriff who posted the notices and that he was instructed to sell the farms by public auction at Kwanyaku. The auction took place on 16 September 1952 and the farms were bought by the fourth defendant Anaman. He was issued a certificate of purchase—exhibit 4D3. The first defendant has denied any knowledge of the sale or notice of the sale. In his statement of defence he admitted that the auction notice was seen by him. Yet in the witness-box he denied seeing any notice. However the defendant’s fourth witness, Dadson, who prepared the statement of defence, confirmed that what he wrote in the statement of defence represented what the first defendant instruct him to write. In this respect too, I believe the evidence of Yaw Gyasi the defendant’s third witness who narrated how he approached the [p.370] of [1968] GLR 362 first defendant when the notices were brought to his knowledge. The impression I have gathered is that the first defendant did not take any steps in the matter when he saw the notice of sale.

So far as farm No. 1 on exhibit J is concerned, there is evidence from exhibit 2D1 that one Kwame Dapaa obtained judgment against the first defendant and this farm was sold in execution to Kwame Ehutu. This sale took place in June 1950 and a certificate of purchase—exhibit 4D2 was issued to Kwame Ehutu. The fourth defendant testified that he subsequently bought this farm from Kwame Ehutu who handed over to him the certificate of purchase. He also stated that Kwame Ehutu executed a conveyance to him but he could not trace this conveyance. The first defendant gave a different story in this connection. He maintained that he went to Anaman for an extra loan of £G200 to pay Kwame Ehutu and Anaman arranged to pay Ehutu and retrieve the property for the family. If really, exhibit 4D1 was executed for that purpose, it would have been clearly stated in that document that the fourth defendant was advancing the loan for the purpose of retrieving the property from Ehutu for the benefit of the first defendant’s family. There is no doubt that all the farms on exhibit J ultimately went into the possession of the fourth defendant by purchase. So far as farms Nos. 1 and 3 on exhibit J are concerned, I have no doubt that they were sold. However as regards farms Nos. 2, 4 and 5, I entertained earlier some doubts as to whether it was proper for Anaman to have bought these farms when in fact they were pledged to him and he could have put in a claim to stop the sale. No interpleader proceedings took place because he never put in a formal claim to the deputy sheriff. His explanation was that it was too late. The rules of court enable a claim to be lodged even after the public auction because the sale does not become absolute until a certificate of purchase has been issued. I have always held the view that as the deputy sheriff exercises his powers not only under rules of court but also under the common law, it is unsafe to seize property which is subject to a mortgage or a pledge because at common law the sheriff cannot seize an equity of redemption under a writ of fi. fa.: see Lyster v. Dolland(1792) 1 Ves. 431 and also Scott v. Scholey (1807) 8 East 467 at p. 485 where Lord Ellenbough C.J. stated as follows:

“The sale of such an interest, if it were to be made at all by the sheriff, must necessarily be made under circumstances of still greater ignorance and uncertainty as to its value, than attend sales of any other description of property; and not only without any legal means of delivering a present possession of the thing sold, but in general without having even the type or instrument of any legal interest whatsoever, present, or future, in the subject [p.371] of [1968] GLR 362 of such sale, to exhibit to the sight, or deliver to the hands of a purchaser.”

However it seems to me that, in Ghana, rules of court enable the immovable properties of a judgment debtor to be attached including his equity of redemption. I have not been able to find any decided authority which disables a pledgee from purchasing the pledged property under a writ of fi. fa. In the absence of such prohibition, it follows that the fourth defendant was at liberty to purchase the pledged farms which were already in his possession. As he bought only the equity of redemption vested in the first defendant, the fourth defendant stepped into the shoes of the first defendant. The only absurd result is that the fourth defendant has to redeem the pledged farms from himself. The title of the first defendant is therefore extinguished by the sale and his right to redeem has been transferred to the fourth defendant. It seems therefore that the first defendant has lost his equity of redemption notwithstanding the maxim in customary law that once a pledge always a pledge. The pledge debt is also transferred and the fourth defendant cannot claim it from the first defendant. The only aspect of this case which has exercised my mind is that each of the two certificates of purchase—exhibits 4D2 and 4D3 states that the purchaser has bought the right, title or interest of Kobina Aidoo the first defendant. I have already held these farms were family properties and that the first defendant was the customary successor of these farms. He therefore had a right to deal with these farms with the consent of the principal members of the family. There is also evidence that these debts were incurred by the first defendant to meet funeral expenses of members of the family. There is also evidence that some members of the family were present on the two occasions when the first defendant approached Anaman for the loans. These members of the family allowed the first defendant to represent himself to Anaman and the other witnesses as a person who had capacity to deal with these farms. I therefore hold that as these debts including that due to Alagbade were incurred on behalf of the family with their knowledge the properties of the family could properly be attached and the family members are already estopped from saying that only the right or interest of the first defendant was sold. Kobina Kartah, the family linguist, Kwesi Kwakye, the present head of family, Kofi Arku struck me as persons who pretended that they did not know of the first defendant’s activities with Anaman. They want this court to believe that from 1950 to 1960 they took no interest in these farms and were completely ignorant of the sales which took place in 1950 and 1952 when in the words of Kobina Kartah, his own father had farms near the farms in dispute. My conviction on a reasonable balance of probabilities is that although the [p.372] of [1968] GLR 362 first defendant became customary successor on the death of Kobina Gurah, the principal members of the family assisted him to dissipate these properties and allowed him to deal with these properties as if they were his own properties. For a period of eleven years, that is, from 1950 until 1961 they did not assert any rights in a court of law challenging these pledges or these sales in execution. My feeling is that they knew what was happening and they did not bother because the first defendant had incurred these debts on behalf of the family. Yaw Gyasi, the defendant’s third witness stated in evidence in chief that when Anaman complained that notices of sale had been posted on the pledged farms, he saw both the first defendant and Kobina Kartah and asked why the farms had been pledged and the first defendant confirmed the attachment. Kobina Kartah is the family linguist and he must have been aware of the attachment of these family properties by Alagbade but he did nothing. I therefore hold that as there is evidence that the plaintiff’s family have lost these properties and valid certificates of purchase have been issued, the plaintiff has failed to prove his claim and his claim for a declaration of title is hereby rejected. The first defendant committed no trespass when he pledged the farms to Anaman. As to the two executions, he had no hand in them and did not commit trespass. There is no evidence that the second and third defendants have committed any trespass. The fourth defendant was legally entitled to possession of farms Nos. 2, 4 and 5 and became legally entitled also to farms Nos. 1 and 3 after the sale of the said farms to him. The fourth defendant therefore committed no trespass. As the plaintiff’s family knowingly divested themselves of these properties through the first defendant’s activities, the plaintiff is not entitled to an account.

I have tried in vain to find any just grounds on which to rely to set aside the sales but it seems to me that the farms were in the possession of the fourth defendant twelve to thirteen years before the plaintiff’s writ was issued. There is no doubt that it is a long period within which one would expect the fourth defendant to husband these farms at great expense. It is now too late for the plaintiff and his family to complain.

For the above reasons the plaintiff ‘s claim is dismissed. In view of the first defendant’s deception of Anaman, I order that he should not be entitled to any costs. The second, third and fourth defendants are awarded their costs assessed at N¢200.00.

DECISION

Action dismissed.

S. K. T.