BADU v. BI
[SUPREME COURT, ACCRA]
DATE: 28TH MAY, 1962
COUNSEL
A. Asafu-Adjaye with him Prempeh for the defendant appellant.
No appearance for the plaintiff respondent.
[p.407] of [1962] 1 GLR 406
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
The action resulting in this appeal was commenced by the respondent before this court in the
Ahafo/Ano Local Court “C” where by her writ of summons she claimed in effect £G50 damages for
trespass to a cocoa farm situate at a place called Kwame-Kyemkrome on Afarihene’s stool land
described as “having boundaries with the properties of Kwasi Manu, forest and a farmstead of Kwasi
Manu.”
The appellant before this court counterclaimed for (1) declaration of ownership, (2) £G50 damages
for trespass and (3) injunction to restrain interference with his right and title in respect of the same
farm.
The parties will be referred to shortly as the plaintiff and defendant respectively. The trial court gave
judgment for the defendant dismissing the plaintiff’s claim. On appeal by the plaintiff to the
Asantehene’s “A2” Court, that court allowed the appeal and set aside the judgment of the trial court.
The court did not, however, by what would seem to be inadvertence, give judgment for the plaintiff
upon her claim. The defendant appealed to the Land Court, Kumasi, but the appeal was dismissed,
and he has brought this further appeal to this court. The judgment of the Land Court was just an
adoption of the decision of the Asantehene’s Court, so this appeal resolves itself into a question of
competition between the decision of the Asantehene’s Court and that of the trial court; or perhaps it
would be more accurate to say that the determination of the appeal depends upon a consideration of
the question as to whether or not there was any good or sufficient cause or reason for the
Asantehene’s Court as an appellate court, interfering with the decision of the trial court. It falls
therefore firstly to consider the proceedings before the trial court and the judgment.
The plaintiff’s case was that one Kofi Asiwubuoo acquired forest land at Kwame-Kyemkrome from
the Afarihene’s stool and cultivated part of it and planted cocoa and foodstuffs before his death, after
which he was succeeded by his nephew Kwasi Manu (or Menano or Amenano). This successor was
the plaintiff’s husband, and he having cultivated a portion of forest, gave or granted a portion of the
cultivated area or farmstead to the plaintiff for his infant son Kwabena Amuah by her, whereupon she
planted cocoa and foodstuffs in it. The portion granted formed boundary with land in the occupation
of her husband, the boundary being marked by “a timber tree, thence to Odum tree, thence to Owawa
tree, and thence to the farmstead of Menano (decd.)”. She left the farm for about three years and when
on her return she went to cultivate the same, the defendant came along and took steps to restrain her
from further entry into the farm. The matter eventually came before an arbitration presided over by
one Kwabena Gyau, and there Yaw Pem, successor of Kwasi Menano as head of Asiwubuoo’s family,
was called to state what he knew about the matter, and he stated that he knew a grant was made to the
plaintiff but did not know the farm; he knew also that a grant was made to the defendant but did not
know that farm also. Eventually an inspection was directed and commenced but the defendant swore
“Ntamkese” (the Ashanti Great Oath) and thereby prevented the inspection from continuing to
completion. The plaintiff did not respond to the oath, but later sent labourers to the farm to cultivate
the same, when the defendant got her arrested, and on her release she instituted the action resulting in
this appeal.
[p.408] of [1962] 1 GLR 406
She called as her first witness Yaw Pem, whose short material evidence was the following:
“My elder brother Kofi Asiwobuoo (decd.) acquired land at Kwame-Kyemkrome. He gave part of the
cocoa farm cultivated to the defendant. After the death of Kofi Asiwobuoo, Amenano succeeded him.
The successor Amenano allotted part of the farmstead to the plaintiff. Amenano informed the whole
family of the gift. I succeeded Amenano (decd.) … When I intended to view the farms of the deceased Amenano I fell ill. Later on I was called by Kwabena Gyau on the dispute of the same property of the
plaintiff and the defendant. I told the arbitrators that I do not know the boundary of the disputed farm.
The land was not viewed when the defendant swore the recognised ‘Ntamkese’ claiming it.”
Under examination by the court, he stated: “I did not frequent the farm during the lifetime of
Asiwobuoo and Amenano . . . I know the parties are having farms on that area”. Her second witness
was one Kromogo Wangara, a farm-labourer, who testified that about eighteen years ago he took over
as caretaker from one Kofi Adu who was the caretaker of the larger area originally acquired by
Asiwubuoo out of which a portion was granted by Asiwubuoo to the defendant’s sister, Yaa Nframa,
and another portion was granted after Asiwubuoo’s death by his successor to the plaintiff. That Adu
Kofi showed him the boundaries not only of the Asiwubuoo family land which he was to take charge
of, but the boundaries between that and the portion given to the defendant’s sister Nframa and the
portion given to the plaintiff. He went away to his home town for some time and on his return found
that the defendant had ploughed the plaintiff’s farm as well as that of Yaw Pem (which he succeeded
to after Menano’s death) so he reported to Yaw Pem, and eventually an arbitration took place about
the matter; in the course of which “when the arbitration members tried to view the land in dispute, the
defendant swore the recognised oath ‘Ntamkese’ that he owns the land in dispute” and this caused the
inspection to be abandoned. Under examination by the court he testified that:
“Adu Kofi showed me the boundary of Yaw Pem and the plaintiff. The plaintiff bounded not with
defendant … Adu Kofi showed me the boundary when Yaw Pem was in possession of his late brother’s
farm. The plaintiff is by the left side of the defendant.”
The plaintiff’s third and last witness was one Awudu Moshie, farmer, who testified that the plaintiff
passes through his farm to her farm and that about 30 years ago, the plaintiff bought cocoa pods from
him to plant in her farm, and that he visited the plaintiff’s farm once about a time when she was
engaged in “re-tilling a farmstead with cocoa, one by one in it.”
It will be observed from the evidence of the plaintiff and her witnesses that in so far as there was the
onus on her it was prima facie discharged, because her evidence of the grant by her husband was
corroborated by the evidence of Yaw Pem, the head of the family, and as to the identity or situation of
her farm, by the evidence of Wangara, the labourer in charge of the adjoining family property and
Awudu Moshie the neighbouring farmer who supplied her with cocoa for planting.
Turning now to the defendant’s case, it was to the effect that late Asiwubuoo was his father who
about 40 years ago acquired forest land from Afarihene, whereupon he (defendant) with his sisters
Adjoa Boaa, Yaa Ataa, and two others assisted him to cultivate it . The father, in due course, granted
them a portion of the cultivated land. On Asiwubuoo’s death he was succeeded by Amenano, who in
turn was succeeded by Yaw Pem, but neither Amenano nor Yaw Pem made any fresh cultivation.
[p.409] of [1962] 1 GLR 406
About two years before the commencement of the action resulting in this appeal, the plaintiff sent
labourers to the land and she informed him (defendant) that Amenano gave her “some cocoa in a
farmstead”, but he explained to her that the land had already been given to him by late Asiwubuoo.
The matter resulted in an arbitration before Kwabena Gyau and other elders, who collected £G2 7s.
from each side to inspect the land in dispute. Yaw Pem who was called to state what he knew about
the matter stated that “he knew not the plaintiff’s farm”, hence he (defendant) swore “Ntamkese” that
he was owner of the farm in dispute. The plaintiff did not respond, but subsequently brought
labourers to plough the farm, so he got her arrested by the local authority police who, however, later
struck out the case as a land case, after which the plaintiff sued him. Under cross-examination by the
plaintiff, he denied that the plaintiff’s late husband made any cultivation or farm at all; but it is
difficult to see how he reconciles this statement with his own admission contained in his counterclaim
that Manu (or Menano or Amenano) had a farmstead with which the land in dispute forms boundary.
His first witness, the local authority policeman who testified concerning the arrest and subsequent release of the plaintiff does not in any way advance his case; nor does his second and last witness
Kwame Nimoh, one of the elders who took part in the arbitration, who testified concerning the
arbitration proceedings which proved abortive because the defendant swore “Ntamkese” and
prevented inspection of the land in dispute.
It will be observed that by the defendant’s case he raised firstly, the issue whether any grant had been
made to plaintiff at all, for his case was that the plaintiff’s husband made no cultivation at all as
alleged and the plaintiff had no farm; and secondly, the issue whether the site of the farm in dispute
was given to him even before Asiwubuoo died so that his successor could not succeed to it to give it
to the plaintiff.
On both issues it seems to me that whereas the plaintiff’s evidence is supported by the corroborative
evidence of her witnesses, the defendant’s evidence stands completely unsupported.
The trial court, however, wrongly I think, did not view the case in that light. Although appearing to
accept Yaw Pem’s evidence which they referred to in their judgment by saying: “the said Yaw Pem
stated that the plaintiff’s husband gave her a farm, but he knew not the farm”, and in spite of the
evidence of the plaintiff’s second and third witnesses, persons working in the locality, as to the
physical existence of the plaintiff’s farm in the locality separate and distinct from the defendant’s (or
Yaa Nframa’s) farm, it purported to accept the defendant’s uncorroborated statement that the plaintiff
had no farm there at all. It also purported to “disbelieve the evidence of the said Kantinka (Kramorgo
Wangara)” which, it is to be pointed out, the defendant had not by any questions in cross-examination
challenged at all, and did not appear to have considered the evidence of the plaintiff’s third witness, to
which no reference whatsoever was made. Although it recorded that there was an inspection, there
was no record of what was seen and what was not seen or of how the inspection either supported or
else discredited the case of either party. Its ultimate conclusion was that: “on the surrounding facts
judgment delivered in favour of defendant”, leaving it most obscure and dubious what those
“surrounding facts” were which warranted a judgment in favour of the defendant.
[p.410] of [1962] 1 GLR 406
On appeal to the Asantehene’s Court, that court found it necessary to inspect the farm or farms in
dispute, and in the light of the criticism already directed against the inspection by the trial court,
namely, that there is no record of what was seen or not seen and no indication of how the inspection
supported or discredited the case of either party, I am of the opinion that the inspection by the
appellate court was necessary and amply justified.
The court recorded the result of its inspection in these words:
“this court inspected the disputed area with the parties and their respective witnesses, and is perfectly
satisfied that what plaintiff and her witnesses showed appeared to be corroborative, and we accept the
boundary shown by them to be correct.”
As to this conclusion or finding of the appellate court, it seems to me to follow inevitably from the
circumstance that the evidence of the plaintiff’s second and third witnesses as to their knowledge of
the location of the plaintiff’s farm and its boundaries was completely unchallenged by the defendant.
The appellate court also dealt with the finding of the trial court that the plaintiff had no farm at all in
the area, and pointed to the cogent, and indeed decisive, evidence of Yaw Pem, the head of the family
to the contrary, and concluded as follows: “Defendant-respondent has argued that plaintiff-appellant
has no farm at all on the disputed area, whilst the successor to his late father has disproved this fact”.
It is clear that this is also an inevitable conclusion at which the appellate court was bound to arrive,
having regard to the irrefutable nature of Yaw Pem’s evidence on the point, the trial court’s own
acceptance of that evidence of Yaw Pem, and the final direction contained in their own seemingly
contradictory judgment that: “The plaintiff has right to claim her share of farm from Yaw Pem”.
Finally the appellate court dealt with the trial court’s unwarrantable rejection of Kantinka Wangara’s
evidence and pointed out that:
“The evidence of the plaintiff’s independent witness in the person of Kantinka Wangara who had been
caretaker of the disputed farm (meaning Asiwubuoo’s area out of which the smaller farms of both parties
were carved out, as the witness explained), for upwards of eighteen years, carried heavy weight in favour
of plaintiff-appellant.”
In this last observation, the appellate court was giving the correct and right estimate or evaluation of a
boundary-owner’s evidence, and the conclusion was amply justified in my opinion by the
circumstance already referred to, that the evidence was, at any rate, unchallenged. The appellate court
concluded by saying:
“In view of the circumstances, this court would have no hesitation to uphold the appeal. The appeal is
allowed, and the judgment of the court below which is not consistent with facts on record is upset.”
and I am of opinion the conclusion is a correct and sound one, and that the Land Court was right in
affirming it.
For the foregoing reasons I would dismiss the appeal and affirm the judgment of the Land Court
confirming that of the Asantehene’s Court.
[p.411] of [1962] 1 GLR 406
As, however, by inadvertence no judgment has been entered for the plaintiff on her claim, I would
rectify that omission by entering judgment for the plaintiff and awarding her £G10 damages for
trespass on her farm described as in the writ of summons.
DECISION
Appeal dismissed.
Judgment entered for plaintiff.
