DOMPREH v. PONG AND OTHERS [1965] GLR 126

DIVISION: SUPREME COURT

DATE: 8 MARCH 1965

BEFORE: MILLS – ODOI, OLLENNU AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Kodilinye v. Odu (1935) 2 W.A.C.A. 336. (2) Rufai v. Ricketts (1934) 2 W.A.C.A. 95. (3) Cobblah v. Gbeke (1947) 12 W.A.C.A. 294. (4) Gyesiwa v. Mensah, W.A.C.A., 10 December 1947, unreported. (5) Kwasi v. Larbi (1952) 13 W.A.C.A. 76, P.C. (6) Ankrah v. Dabra (1956) 1 W.A.L.R. 89, W.A.C.A. (7) Twumasi v. Badu (1957) 2 W.A.L.R. 204, W.A.C.A. (8) Yaw v. Amobie (1958) 3 W.A.L.R. 406, C.A. (9) Asare v. Donkor [1962] 2 G.L.R. 176, S.C. (10) Paul v. Kokoo [1962] 2 G.L.R. 213, S.C.

NATURE OF PROCEEDINGS

APPEAL from a decision of Sowah J. in the High Court (unreported) wherein he dismissed the plaintiff ‘s claim for a declaration of title to certain farms. COUNSEL

G. D. Ampaw for the appellant. No appearance by or on behalf of the respondents.

JUDGMENT OF MILLS-ODOI, J.S.C.

The plaintiff in this action has appealed to this court against the judgment of Sowah J., dated 8 February 1963 by [p.128] of [1965] GLR 126 which the learned judge dismissed his claim for a declaration that six farms situated at Batabi were his self-acquired properties. His claims for damages for trespass and a perpetual injunction were also dismissed. The basic claim was that the six farms were the self-acquired properties of the plaintiff and it was grounded upon the following averments contained in paragraphs (3), (4) and (5) of the statement of claim: “(3) As such citizen he [plaintiff] cultivated the farms described in the writ of summons as far back as 1944, and has been re-cultivating the same regularly up to July 1962. (4) Plaintiff was afterwards, that is to say, in 1946, made the Odikro of Batabi, but was destooled in 1959. (5) On his destoolment these farms the subject-matter of dispute, were specifically handed over to the plaintiff by the Akyeasehene and his linguist the persons deputed by the Okyihene and his elders and the Oyoko stool elders to take charge of the stool properties of Batabi.” In a statement of defence, the defendants vehemently denied the averments referred to above and pleaded that the six farms, were cultivated by the people of Batabi for the plaintiff while he was occupying the stool. They pleaded further that “before the plaintiff was enstooled as Odikro of Batabi he was not resident at Batabi but was rather resident at Akinkansu where he was a boat builder, and therefore he did not cultivate any farm or farms at Batabi before his enstoolment in 1946.” Upon these pleadings the following issues were raised for the determination of the trial court: “(1) Whether or not the plaintiff cultivated the farms, the subject-matter of the dispute while he was the occupant of the stool of Batabi. (2) Whether the said farms were handed over to the plaintiff on his destoolment with the consent of the elders of the stool.” As the claim was substantially for a declaration of title, it was undoubtedly the responsibility of the plaintiff, on whom the onus lay, to satisfy the court by evidence that the ownership thereof was vested in him. It has been held that the plaintiff “must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him.” Per Webber C.J. in Kodilinye v. Odu.1 See [p.129] of [1965] GLR 126 also Amodu Rufai v. Ricketts,2 and in the words of Harragin C.J. in Ayite Cobblah v. Tettey Gbeke, “It is a recognised principle in land cases and it does not admit of argument that the plaintiff, when claiming a declaration of title, must succeed on the strength of his own case.”3 In order to discharge this onus, the plaintiff went into the witnessbox and gave evidence to the effect that the farms in dispute were cultivated by him, not prior to the date of his appointment as Odikro of Batabi, but during the period he was occupying the Batabi stool as Odikro. In his evidence-in-chief he said he cultivated the said farms three years after his assumption of office as Odikro and under cross-examination he also deposed inter alia, as follows: “I made the farms while I was on the stool; the statement in paragraph (3) of the statement of claim is not correct.” It is beyond doubt, therefore, that the evidence of the plaintiff referred to supra in support of his claim for a declaration of title is at variance with the averments contained in paragraph (3) of his statement of claim. His evidence supports the very core of the case put forward by the defendants that the six farms, were not cultivated by him before his enstoolment as Odikro of Batabi. In the circumstances, the plaintiff took up a new line of action and fought the case on the ground that the disputed farms were all cultivated by him, while he was on the Batabi stool, out of the salary which the stool paid him by virtue of his office as Odikro. After hearing all the evidence, the learned trial judge found that the farms were cultivated while the plaintiff was in occupation of the Batabi stool as Odikro and held that, “on the plaintiff ‘s destoolment as Odikro of Batabi the farms made by him became (by customary law) the properties of the Batabi stool and he was not entitled to keep them.” Upon those findings of fact and the declaration of the customary law the learned trial judge dismissed the plaintiff’s claims and entered judgment for the defendants. The plaintiff has filed a number of grounds which were argued collectively as amounting, in substance, to two main grounds, namely: (a) That the disputed farms were cultivated by the plaintiff from the salaries which he received from the elders of the stool while he was in office as Odikro; and in accordance with customary law the said farms became his self-acquired properties as distinct from stool properties.

[p.130] of [1965] GLR 126

(b) That after the plaintiff ‘s destoolment the disputed farms were handed over to him by the Achiasehene with the consent of the elders of the Batabi stool and the defendants are estopped by conduct from claiming title to those farms because they had acquiesced in the said properties being handed over to him. As already indicated the matters raised in the grounds referred to supra contain facts which were not pleaded by the plaintiff in his statement of claim. There is nothing on the face of the record of proceedings to show that he amended his pleadings at any stage of the trial. Be that as it may, the plaintiff, during the course of the trial, was allowed to lead evidence on those new matters to substantiate his claim for a declaration of title and damages for trespass. Whatever line of action the plaintiff took, the onus still remained on him to prove that he was the owner of the said farms. To establish his claim of title on this new ground that the six farms were cultivated by him from the salaries he received from the stool, it became incumbent upon him to produce evidence of fact and circumstances from which the learned trial judge could be satisfied that the disputed farms were indeed his self-acquired properties. This the plaintiff could have done by producing evidence of witnesses whom he employed to cultivate the farms; that they were paid by him and that he supervised or directed some work on the land, or, at least exercised some overt acts of ownership indicating that he was the owner in possession of the farms. This he failed to do. All that he did was to go into the witness-box and say on oath: “As a chief of the area I am paid therefore anything that I acquire is my property. The revenue from the stool properties goes to the state council.” There is no principle of customary law which precludes an occupant of a stool from acquiring his own personal property as distinct from stool property and, according to Sarbah, in his Fanti Customary Laws (2nd ed.) at p. 99, “A stool-holder, who had kept his self-acquired property distinct from the stool property, to the knowledge of the senior and immediate members of the stool, can make a valid testamentary disposition of such self-acquired property to a member of the family.” However, the presumption is that any property acquired by an occupant of a stool was acquired from stool funds. Therefore the plaintiff who lays claim to the disputed farms as his self-acquired properties must call evidence to rebut the presumption. Yet the only evidence on this matter was his own bare assertion that as Odikro of Batabi he cultivated those six farms out of the salaries paid to him

[p.131] of [1965] GLR 126 by the stool elders; but there is not a tittle of evidence to prove that the farms were in fact acquired by him from his own private funds while he was on the stool. The submission of learned counsel for the appellant on this ground, therefore, is not supported by the evidence. Turning over to ground (b) learned counsel for the appellant argued that as the parties voluntarily submitted themselves before Nana Achiasehene, who conducted an inquiry and found as a fact that the disputed farms were the self-acquired properties of the appellant and therefore handed them over to him with the consent of the defendants, the latter are estopped by their conduct from laying claim to those farms. It is apparent, on the face of the record, that the parties never attended any arbitration before Nana Achiasehene to determine the question of title to the six farms. Again the evidence by the plaintiff that the elders of the Batabi stool acquiesced in the handing over of the disputed farms to him by Nana Achiasehene after his destoolment was denied by the first defendant, Bafour Kwaku Pong, the successor to the plaintiff, whose evidence at the trial, material to this issue, reads as follows: “Before the plaintiff was destooled he was suspended and the matter was referred to Nana Achiasehene. He then appointed the fourth defendant Kwame Owusu and Okyeame Kwesi Ekyirim to be regent pending the hearing of the charges. When Nana Achiasehene found him guilty of the charges and the plaintiff was destooled, we asked [him] to account for the stool properties; but he refused saying that he would do so if the Omanhene of Akim Abuakwa, or Nana Achiasehene or the district commissioner requested him to do so. I therefore informed Nana Achiasehene to get the properties for me, but he did nothing about it and so I went and reported to the district commissioner who wrote to Nana Achiasehene and the plaintiff and we met at the district commissioner’s place.” Assuming for a moment that there was a meeting by the parties before Nana Achiasehene to inquire into the question of ownership of the disputed farms, the onus was on the plaintiff to prove that that meeting constituted an arbitration and that all the essential elements of a binding customary arbitration as laid down by a long line of cases, of which the following are a few, were present: Gyesiwa v. Mensah,4 Kwasi v. Larbi,5 Ankrah, v. Dabra,6 Twumasi v. Badu7

[p.132] of [1965] GLR 126 and Yaw v. Amobie.8 What then are the essential elements which must be present to show that the parties submitted themselves to arbitration in order to make any award binding them? The answer to the question is given by this court constituted by Sarkodee-Adoo J.S.C. (as he then was), Ollennu J.S.C. and Akufo-Addo J.S.C. (as he then was) in Asare v. Donkor,9 in the following words10: “It is correct that one of the recognised ways in which arbitration proceedings may be initiated by customary law, is for one of the parties to a dispute to lodge a complaint against his opponent to the would-be arbitrator with a request that he should arbitrate upon it, and the would-be arbitrator then sends for the other party and obtains his consent that the dispute be decided by arbitration. But to amount to a submission to arbitration, it must be shown that when the other party came, upon being sent for, a full explanation was made to him that his opponent had made a request that the dispute should be determined at an arbitration, not in court, and that the person to whom he lodged the complaint should preside over the dispute as the arbitrator. It is only when the person against whom the complaint is made agreed after such explanation, i.e. if with full knowledge of the implications he also expresses his agreement to the proposal of the complainant that an arbitration should be so held, that there could be a lawful submission to arbitration by both parties, otherwise not.” Again, in the case of Paul v. Kokoo,11 this court made the following pertinent pronouncement.12 “The law is now too clearly settled to admit of any dispute or doubt that the only solid foundation of a valid customary arbitration and binding award is the voluntary submission by the disputants, however much they may be quarrelling, of their dispute to a relatively disinterested third party to make a fair investigation into it and give a decision on it for them.”

In the present case although the evidence shows that the plaintiff and the elders of the Batabi stool attended a call by the Achiasehene, it is beyond doubt that they did so in connection with the destoolment charges which the stool elders had preferred against the plaintiff, and in respect of which the Omanhene of Akim Abuakwa deputed the

[p.133] of [1965] GLR 126 said Achiasehene to go into and give his decision. The destoolment charges were successfully proved against the plaintiff and he was destooled in 1961. Thereafter the plaintiff and the stool elders did not at any stage submit themselves to an arbitration before the Achiasehene to enable him to make a fair investigation as to the ownership of the six farms, the subject-matter in dispute. And the evidence of the plaintiff, material to this issue, clearly shows that there was no such arbitration. It reads as follows: “When I was odikro the elders destooled me. The Achiasehene and his elders came and inspected the land and found that the farms belonged to me and gave the farms to me.” In my opinion the arbitrary steps taken by the Achiasehene and his elders purporting to give title of the disputed farms to the plaintiff do not constitute an arbitration by customary law. The submission by learned counsel for the plaintiff that the defendants are estopped by conduct from laying claim to the said farms is therefore wholly untenable. For these reasons I would confirm the judgment appealed from and dismiss the appeal. There being no appearance for the defendants, there will be no order as to costs.

JUDGMENT OF OLLENNU, J.S.C.

I agree.

JUDGMENT OF SIRIBOE, J.S.C.

I also agree.

DECISION

Appeal dismiss

K.T.