DIVISION: IN THE SUPREME COURT
DATE: 2ND JULY, 1963
BEFORE: ADUMUA-BOSSMAN, BLAY AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Kwamin v. Kufuor (1914) 2 Ren. 808; P.C. ‘74-’28, 28, P.C.
(2) Waya v. Byrouthy (1958) 3 W.A.L.R. 413
(3) Abowaba v. Adeshina (1946) 12 W.A.C.A. 18
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Accra, unreported, given in favour of the plaintiff in an
action for a declaration of title to land, damages and perpetual injunction brought against the defendants.
COUNSEL
Dr. de Graft-Johnson for the appellants.
K. Ohene-Ampofo for the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
[His lordship stated the facts as summarised in the headnote and continued:] Learned counsel for the
defendant’s submission was that the learned judge was wrong in his view that Opanin Kofi Dade was a
disinterested witness because as Osafohene of the Kotropei stool and, therefore, a principal elder of that
stool which claims the right of alienation of the land in dispute and the only representative of the stool
who gave evidence for the plaintiff he could hardly be described as a “disinterested witness.” It is really
difficult to understand how the learned judge came to describe this witness as a “disinterested witness”
and indeed learned counsel for the plaintiff had to concede that the description was inapt. But counsel for
the plaintiff submitted that the trial judge made a mistake in his reference to this witness, for he actually
intended to refer to John Agyakwa whose name appeared on the deed of gift as the interpreter and who
gave evidence for the plaintiff. Counsel then referred to the evidence of the said Opanin Kofi Dade in
substantiation of his submission that the learned judge could not possibly have meant to refer to that
evidence. That evidence reads as follows:
“I am literate. The Kotropei stool granted land to C. B. Botchway; his said land forms boundary with the land
in dispute. I read and interpreted the deed executed on it to Nana Bamforo, and to the first defendant, who
understood it and witnessed the execution of that deed, he touched pen and I made his mark on it.”
Counsel submitted that the deed referred to by this witness was a deed of conveyance executed in respect
of the land granted to the said C.B. Botchway and not the deed of gift on which the plaintiff’s claim was
founded.
[p.225] of [1963] 2 GLR 223
The answer to that is that that piece of evidence is equally capable of reference to the plaintiff’s deed of
gift, and since the plaintiff’s counsel for reasons best known to himself did not tender in evidence the
said C.B. Botchway’s deed of conveyance (which he said he had in his possession at the trial) the only
reasonable inference that can be drawn is that that evidence referred to the plaintiff’s deed which was the
only deed before the court. If the trial judge made a mistake, as counsel submitted, it is not easy to
understand why counsel did not take the necessary steps under the “slip” rule to have the judgment
corrected in this important matter. This court cannot at this stage institute an enquiry into counsel’s
allegation and I must therefore accept the statement of the trial judge as being what it says on its face. The
learned judge’s view of the evidence of the execution of the deed of gift is wrong for two obvious
reasons. First, the foundation for that view is that Opanin Kofi Dade was a credible witness because he
was a “disinterested witness.” It is not humanly possible, however charitable one may like to look at
things, to fit that description to a witness who represented the Kotropei stool in its claim to ownership of
the disputed land, and counsel’s submission in this regard must be upheld. Secondly, the deed of gift does
not bear out the conclusion that Opanin Kofi Dade interpreted the deed.
It follows therefore that the trial judge’s conclusion that the deed was interpreted to the first defendant
and he understood the contents thereof rests on a completely wrong assessment of the evidence on that
point, and that conclusion is therefore wrong. Even if I were to accept counsel’s submission that the trial
judge actually meant to refer to the evidence of John Agyakwa as the evidence relied on by him for his
conclusion aforesaid I would still hold that that conclusion was wrong in that the evidence of John
Agyakwa does not come up to the standard required in law to affect an illiterate Ghanaian person with the
knowledge and full appreciation of the contents of a document written in the English language to which
he has appended his mark. The learned judge held that on the view which he had taken of the facts the
case of Kwamin v. Kuffour1 did not apply. I do not agree.
It would be observed that in Kwamin v. Kuffour and in the more recent case of Waya v. Byrouthy2 in
which the principle in Kwamin v. Kuffour was applied, the illiterate person affected in each case was
actually a party to the contract written in the English language. In this case the illiterate persons
concerned (that is the first defendant and his family-head) were not parties to the deed; they were attesting
witnesses only. The evidential requirements necessary therefore to affect them with an intelligent
knowledge of the precise and relevant contents of the deed are far greater
[p.226] of [1963] 2 GLR 223
than those enunciated in Kwamin v. Kuffour. In that case Lord Kinnear reading the advice of the Privy
Council said,3
“when a person of full age signs a contract in his own language his own signature raises a presumption of
liability so strong that it requires very distinct and explicit averments indeed in order to subvert it. But there
is no presumption that a native of Ashanti, who does not understand English, and cannot read or write, has
appreciated the meaning and effect of an English legal instrument, because he is alleged to have set his mark
to it by way of signature. That raises a question of fact, to be decided like other such questions upon
evidence.”
Earlier in that opinion the learned Lord had said,4 “The question is whether his [i.e., the illiterate
person’s] knowledge is proved, and the respondent cannot be required to prove a negative.” And again
“the possibilities of misunderstanding are so obvious as to render it imperative on the appellant, who
alleges his [i.e., the illiterate person’s intelligent consent to a contract expressed in a language which he
did not understand, to prove that it was clearly explained to him.”5
As I have already indicated the illiterate persons concerned in this appeal were attesting witnesses only
and there is no presumption that an attesting witness has any knowledge of the contents of a document the
execution of which he attests; indeed the presumption is the other way round, and a much heavier onus
therefore rests upon the plaintiff in this appeal to prove that the first defendant and his head of family
attested the document by appending their marks thereto with an intelligent knowledge of the fact that the
land granted thereby was their stool land and that with that knowledge they consented to its execution in
the manner alleged. There is no evidence to show why Nana Bamforo considered it necessary to invite the
first defendant and his head of family to witness the execution of that document, and Agyakwa’s evidence
does not establish that he brought specifically to the knowledge of these persons what was, undoubtedly,
the most important content of that document, namely, the description of the land being granted. Merely to
say, as Agyakwa said in his evidence, that “The first defendant was present when each of these deeds was
executed. He made his mark to each of them as attesting witness” and that,”I read and interpreted the
contents of each of the documents, exhibit A and exhibit B, to all the people who executed them,
including the first defendant, who seemed perfectly to understand the contents of each of them before he
touched my pen, and I made his mark on each of them,” is in my view very far from being enough to
establish an intelligent knowledge on the part of the first defendant of the description of the land
comprised in the deed and his consent, with that knowledge, to the grant. The first defendant’s case that
he was tricked by Nana Bamforo into appending his mark to the deed does not appear to me from the
evidence
[p.227] of [1963] 2 GLR 223
to have been answered at all. The first defendant cannot in these circumstances be estopped by the mere
fact of his mark appearing on the deed from challenging Nana Bamforo’s right to alienate the land.
With regard to this aspect of the appeal learned counsel raised a point of procedure which having regard
to the view I have expressed does not seem to call for much consideration. That point is that the first
amendment of his defence which consisted in withdrawing entirely the existing defence and substituting
therefor a new defence operated to render nugatory the plaintiff’s reply to the original defence, and as the
plaintiff did not deliver a fresh reply to the amended defence there was no plea of estoppel by the plaintiff
before the court which should not have permitted evidence on that issue to be given. Whatever the
procedural position is, counsel has no right to complain of the reception of the evidence on estoppel for he
should have objected to that evidence, and not having done so he is, on the authority of Abowaba v.
Adeshina,6 barred from pursuing his objection in this court.
On the issue of ownership of the land I find it even more difficult to appreciate the trial judge’s finding in
favour of the plaintiff. The plaintiff’s counsel appeared to have been so complacent about his plea of
estoppel that he regarded any positive evidence of the alleged grant to his grantor’s stool as of secondary
importance. It was a most unsatisfactory way of conducting a case of this nature. There was no evidence
by the plaintiff which could be accepted on any principle of the judicial assessment of evidence as
establishing the grant alleged.
The trial judge relied on the evidence of Opanin Kofi Dade and the first defendant for his finding on the
issue of the grant and said in his judgment:
“The first evidence of the grant made to the Kotropei stool was given by the first witness for the plaintiff, an
elder of the Kotropei stool, when cross-examined he said as follows: ‘The land in dispute is within the large
area you have described; about 40 years ago a portion of that area was granted to us the Kotropei people
when we came to settle in the area. It was a gift the first defendant’s stool made to us and we performed the
necessary custom for it. It is correct that it is only four months ago that our boundary was finally settled upon
the intervention of the Omanhene. Yes the old boundary was abandoned. We were not mere licensees … The
first defendant said he did not know what his ancestor took from us when he granted us the land so he would
give us only a limited portion and he demanded a sheep and an amount of £G2 8s. which we gave him
together with rum, we gave these because the Omanhene asked us to.’ The impression left by this evidence is
that a boundary was demarcated when the original grant was made and the necessary custom for a valid grant
was performed. It was never suggested to this witness that the necessary custom to perform for a grant of
land as distinct from licence is one sheep, a bottle of rum and £G2 8s., nor was it suggested that his stool
only gave two bottles of rum, and did not give sheep and money upon the grant to them.
The next witness on this issue is the first defendant, all he said on the first day of his evidence is as
follows: ‘Yes I know Nana Bamforo. He
[p.228] of [1963] 2 GLR 223
came from a place called Kotropei where he was a chief, and settled at Senchi. It would be about 23 years
ago since Nana Bamforo settled at Senchi. When Nana Bamforo came he begged my ancestor to give him
some land to settle upon because there was no water at the place they first settled. My grandfather agreed
to give him a place to settle upon. Nana Bamforo was accompanied by his elders including his Mankrado.
We gave Nana Bamforo an area of land to settle upon, that land is situate on the Senchi-Kpong road. We
only asked Nana Bamforo and his people to settle on that land. We did not make a gift of it to them. The
ownership of the land remained in my stool.’ That evidence was given on the 12th October, 1961, the first
day he started to give evidence. The impression that evidence leaves is that a specific area was alloted to
Nana Bamforo. Nowhere in that evidence did he allege that for a grant of licence to occupy a land the
custom to perform is to give two bottles of rum, but for absolute gift the custom is to give £G2 8s., a
sheep and a bottle of rum. But on the 16th October, 1961, after he had had two adjournments he improved
upon his evidence. He said: `When the Kotropei people came they gave us drink, they gave the drink to
the chief to perform libation to the gods in order that their stay in the place would be prosperous. When a
stool makes a gift of land to a person the person should, in accordance with custom thank the stool with
an amount of £G2 8s., a sheep and a bottle of rum. Yes there are some Akwamus living on my land who
are not my subjects. There are no special terms for their occupation of the land. All I know is that they are
there for me’.” The inference drawn by the trial judge from these two pieces of evidence that a grant of a
specific area of land was made to the Kotropei stool and that upon the grant a boundary of the land so
granted was demarcated is hard to account for, for it is surprising that neither did Opanin Kofi Dade in his
evidence describe the boundaries of the land he alleged was granted to his stool nor did the trial judge
make any specific finding of the precise area of land which he held was granted to the Kotropei stool.
Indeed the very evidence of Opanin Kofi Dade that their boundary was finally settled only four months
before the hearing of the suit proves beyond a peradventure that no boundary was ever demarcated at any
time before four months prior to the hearing and then according to the same witness the boundary so
settled did not include in its extent the land in dispute. One of the essential requisites to be proved in an
allegation of a grant of land is the precise area of land alleged to have been granted. There is not a shred
of evidence of this requisite. Opanin Kofi Dade did not even state in his evidence the exact area of land
which his stool had actually occupied in order to enable the inference of a grant to be drawn from the fact
of possession.
On the issue of the plea of estoppel by the arbitration awards raised by the defence it is worthy to note
that not only did the plaintiff not plead to it but also the trial judge was clearly wrong when he held that
the first defendant produced no evidence to substantiate his averment of arbitration and an award thereof
in 1946 and 1947, because the first defendant
[p.229] of [1963] 2 GLR 223
did produce evidence of these awards when he made the following statement in his evidence: “About
fifteen years ago one Mr. Botchway applied to Nana Bamforo for land, and Nana Bamforo granted it to
him. I therefore questioned Nana Bamforo for granting that land without my knowledge. I handed the
matter to Nana Nifahene with a complaint that I did not understand why Nana Bamforo should give my
land away to someone without my knowledge. There was a meeting and the case was gone into and
judgment was given in my favour that he had no right to give away my land without my knowledge. I was
pacified with £G1 4s. The arbitrators had 12s.
Later I discovered that a portion of my land had been given to one Bannerman. I discovered this when I
returned home from Akwapim. I referred the matter also to the Nifahene, and again he was found to be in
the wrong. I was given £G1 4s. as pacification fee, the arbitrators took 12s. The land now in dispute is in
the same area as those in dispute in the former disputes.” As regards the arbitration of 1957 the trial judge
was undoubtedly right in holding that the plaintiff could not be estopped by it because the grant to him
was prior to the award and he was not a party to that arbitration. But in my view that should not have
been the end of the consideration which should have been given to the evidential value of that award, for,
although not an estoppel against the plaintiff, it was evidence of the absence of title in the plaintiff’s
grantor and it should have been considered in that light.
On the whole the defendant’s appeal must succeed, but subject to the observations that follow and the
consequent order which in my view should be made by this court. One very unsatisfactory feature of the
trial was the apparent indecision of the defendants as to what their case exactly was and the inability of
the plaintiff to take full advantage of his procedural rights. The defendants seemed to have shaped their
defence in the light of the evidence and they amended their defence twice, the last amendment being after
the close of the plaintiff’s case. When the last amendment was made the trial judge made the following
record. “Leave granted as prayed, the counter-claim is struck out. Liberty reserved to the plaintiff to file
reply to the amended statement of defence if he should so desire.” It was by this final defence that the
plea of estoppel by the arbitration awards of 1946 and 1947 was first raised. The learned judge
commented on the failure by the plaintiff to deliver a reply for which liberty was reserved to him as
follows:
“Although liberty was reserved to the plaintiff to file a reply to the final amended statement of defence, that
liberty was not exercised, but no miscarriage of justice has been occasioned by that omission because the
first defendant produced no evidence to substantiate his averment of arbitration and an award thereof in 1946
and 1947.”
[p.230] of [1963] 2 GLR 223
It is in my view not quite correct to say that the plaintiff’s failure to deliver a reply did not occasion any
miscarriage of justice. That conclusion was based on the learned judge’s view of the absence of evidence
of the arbitration awards which I have shown to be wrong.
Order 28, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 19547, permits a judge to allow a
party to amend his pleadings “at any stage of the proceedings . . . on such term as may be just . . . for the
purpose of determining the real questions in controversy between the parties.” Although the plaintiff’s
counsel should have applied for an adjournment to consider the new defence and to plead to it by way of
a reply, counsel’s failure to do so should not in all the circumstances have prevented the trial judge from
adjourning the hearing to enable the plaintiff’s counsel to consider the position created by the amended
defence, for an adjournment would in my view have been a juster term upon which to allow the
amendment than granting the plaintiff liberty to reply and proceeding with the hearing.
In all the circumstances the ends of justice will be adequately met by allowing the appeal and remitting
the case to the court below for re-trial.
I would therefore allow the appeal set aside the judgment appealed from and remit the case to the court
below for re-trial which shall proceed only on the issue of the ownership of the land in dispute without
reference to any issue of estoppel raised by the fact that the defendant and his head of family were
attesting witnesses to the deed of gift. For this purpose I would direct that Nana Bamforo the plaintiff’s
grantor be joined as a co-plaintiff.
Costs both here and below are to be paid by the plaintiff as a condition precedent to the re-trial.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal allowed with costs.
Case remitted to court below on the question of ownership of the disputed land.
K.T.
