FORI v. AYIREBI AND OTHERS [1966] GLR 627

Division: SUPREME COURT

Date: 30 JUNE 1966

Before: AZU CRABBE, OLLENNU AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) Yoguo v. Agyekum [1966] G.L.R. 482, S.C.

(2) Edward Ramia, Ltd. v. African Woods, Ltd. (1956) 1 W.A.L.R. 193, W.A.C.A. affirmed [1961] G.L.R. 2, P.C.

(3) Dadzie v. Kokofu [1961] G.L.R. 90, S.C.

(4) Akofi v. Wiresi (1957) 2 W.A.L.R. 257, W.A.C.A. [p.631] of [1966] GLR 627

(5) Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.

(6) Wilkinson v. Edusei [1963] 1 G.L.R. 393, S.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the High Court, Kumasi, that the plaintiff stool had failed to prove their title to a piece of land and consequently that they were not entitled to the reliefs sought. The facts are fully set out in the judgment of Ollennu J.S.C.

COUNSEL

Victor Owusu for the appellant stool.

H. V. A. Franklin for the respondents-syndicate.

K. Dua-Sakyi for the seventh, eighth and eleventh respondents and the first co-respondent. D. S. Effah for the second co-respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Apaloo J. (as he then was), given in the High Court, Kumasi. The claim which is for (i) damages for trespass, (ii) accounts and (iii) injunction, was made originally against the first fifteen defendants, some of the respondents herein. The first co-respondent, hereinafter referred to as the Banka stool, was joined upon his application; the main grounds he relied upon for his application are contained in paragraphs (5), (6) and

(7) of his affidavit in support of the application and are:

“(5) There is an agreed boundary between the Banka stool land and the Jadamwa stool land, and by further agreement from ancient times the Banka stool is entitled to one-half of the interests and profits of the Jadamwa stool land, recently placed on a permanent basis by an arbitration before the Bodwesangohene in proportions of one-third for Banka and two-thirds for Jadamwa.

(6) The land held by the above-named persons, the seventh, eighth, tenth and eleventh defendants is within the Banka stool lands and two-thirds for Jadamwa.

(7) That the particulars of claim attached to the plaintiff’s writ, namely, the claim that the northern boundary of Jadamwa stool land is the Deben river, takes in a large portion of Banka stool land. The boundary between Jadamwa and Banka is a watercourse named Nsamanfogore-Adowa and not the Deben river which is on Banka lands.”

The second co-respondent, hereinafter referred to as the Ofoase stool, was joined upon his own motion; the grounds for the joinder are:

[p.632] of [1966] GLR 627

“(a) That Ampatatwum stool of Ofoase is the owner of the land in question now claimed by the plaintiff [appellant].

(b) That some time in the year 1925, my predecessor Nana Kwadjo Adjei I, the then occupant of the stool granted farming rights over portions of the land in question upon certain terms and conditions to Kwaku Ayirebi and some of the defendants herein, who have since such occupation thereof been observing and performing the said conditions. (c) That the lands now occupied by the plaintiff were originally for the Ampatatwum stool of Ofoase but were later granted to the plaintiff ‘s stool by virtue of some family arrangement.

(d) That the interest of Ampatatwum stool of Ofoase in and to the lands now occupied by the defendants and claimed by the plaintiff would be greatly affected if I am not permitted to join in the suit now pending for determination and assert my stool’s rights thereto, and therefore make this affidavit in support of the motion to that effect.”

The land claimed by the appellant stool is fully and clearly described in the particulars attached to the writ of summons, and also in paragraph (2) of their statement of claim, and is as follows: “The plaintiff’s stool is the absolute owner of all the lands bounded on the north by Deben river down to Kwame Ano village, on the west by Tabretuo stream and river Anum, on the east by Odei river and on the south Anum river,” and is delineated on a plan exhibit C made by a surveyor appointed by the lower court, and is thereon edged in red.

Eleven of the respondents, namely, the first, second, third, fourth, fifth, sixth, ninth, twelfth, thirteenth, fourteenth and fifteenth, hereinafter referred to as the syndicate, claimed to have purchased a portion of the land in dispute jointly from the appellant and the Ofoase stool and therefore allege that they were in lawful possession. The Banka stool in their statement of defence pleaded inter alia:

“(i) In answer to paragraph (2) of the statement of claim and particulars the co-defendant states that the boundary between the plaintiff ‘s stool land and that of the defendant, Nana Brako Ababio II of Banka is not the Deben river but a watercourse named Nsamanfogore-Adowa.

(ii) The co-defendant is not in a position to admit or deny paragraph (3) of the particulars of claim.

(iii) In answer to paragraph (4) of the particulars the co-defendant states that four of the original defendants sued by the plaintiff, namely, No. 7 Narkoli, No. 8 Dokoo, No. 10 Manti and No. 11 Kwasi Anuobi are tenants of

[p.633] of [1966] GLR 627 the Banka stool and that the lands occupied by them do not belong to the plaintiff’s stool.

(iv) In further answer to the statement of claim and the particulars the co-defendant states that there is an agreement between the Banka stool and the Jadamwa stool as, to the boundary of the two stools in respect of their lands and that by further agreement between the Banka stool and the Jadamwa stool the co-defendant’s stool is entitled to one-half of the interests and profits of the Jadamwa stool lands, recently placed on a permanent basis by an further arbitration between them before the Bodwesangohene in proportions of one-third for Banka and two-thirds for Jadamwa and the plaintiff’s claim to the title of absolute owner, and to sue for damages, an account and perpetual injunction without reference to the co-defendant is denied.

(v) To the above extent the co-defendant disputes the plaintiff’s claim but does not deny his right to sue for damages for trespass other than against the seventh, eighth, tenth and eleventh defendants.” (The emphasis is mine.) The Ofoase stool also pleaded that ownership of the land occupied by the syndicate which is a portion of the land in dispute is vested in them. Upon the pleadings the following issues were settled for trial:

(i) As between the plaintiff (appellant) stool and the Banka stool (first co-respondent):

(a) determination of the boundary between the land of the plaintiff stool and the land of the Banka stool;

(ii) as between the plaintiff stool and the Ofoase stool (second co-respondent.):

(b) determination of the boundary between the land of the plaintiff stool and land of the Ofoase stool;

(iii) as between the plaintiff stool and the syndicate:

(c) whether the syndicate occupy the land as purchasers thereof from the plaintiff stool or as abusa tenants; and

(iv) as to the other defendants

(d) whether the land they occupy is the property of the plaintiff stool.

In view of the plea of the Banka stool that the boundary between their land and the appellant’s land “is not the Deben river but a watercourse named Nsamanfogore-Adowa” and of the respondents, plea that the land occupied by them is outside the boundaries of the appellant’s land, the trial court made an order for a plan and specifically directed that:

[p.634] of [1966] GLR 627

“(1) The plaintiff to file a plan of the land in dispute and to serve the defendants and co-defendants with a copy of such plan. The plan to show the area occupied by each defendant and in the case of cocoa farms, the number and approximate age of trees in each farm.

(2) The co-defendant to attend the survey and point out the watercourse he claims to be the boundary between him and the plaintiff.”

The plan produced, exhibit C, shows the land surrounded on all sides by rivers and shows one corner pointing vertically southward, with the adjacent sides running north-east and north-west. The surveyor who carried out the survey gave evidence, which was not disputed by the Banka stool, that although the Banka stool attended the survey, they were unable to point out the Nsamanfogore-Adowa watercourse which they pleaded is their western boundary with the appellant’s stool lands; they denied having a boundary with the appellant stool and rather pointed out some places running approximately east to west which they then alleged marked their boundary with the Ofoase stool.

Among the evidence given in support of the appellant’s case are (i) exhibit G a validated decision given in 1930 under the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions Validation) Ordinance,1 which inter alia fixed the Debi river as the western boundary of Banka stool land; (ii) evidence of the Jimachi stool, the undisputed owners of the land adjoining the land in dispute on the west, their evidence is that they form a boundary with the appellant’s stool land and that the boundary is marked by the Anum river; and (iii) a validated concession, exhibit H, the extent of which is delineated on the plan, exhibit C, and thereon edged in chrome orange covering a large portion of the northern section of the land in dispute.

In a lengthy judgment, the learned judge of the High Court held that the appellant stool had failed to prove their title to any portion of the land and consequently dismissed their claim to each of the reliefs sought. Against the decision of the lower court the appellant stool appealed on seven grounds; these were argued in groups, and may, for convenience, be summarised in the order in which they were argued as follows:

(1) The learned judge misunderstood and misdirected himself on the legal effect of a validated decision made under Cap. 144, and consequently erred in holding, in spite of exhibit G, that the Banka stool owned land west of the Debi river;

[p.635] of [1966] GLR 627

(2) the learned judge erred in ignoring the issues set down for trial, and consequently misdirected himself in accepting evidence led by the Banka stool which is at complete variance with their pleadings;

(3) the learned judge misdirected himself on the factual implications and legal effect of the validated concession granted by the plaintiff stool to A. Lang & Co.;

(4) the learned judge misdirected himself in holding that receipts tendered by the syndicate are binding upon the plaintiff stool, and consequently that the syndicate are purchasers and not abusa tenants; and

(5) the judgment is against the weight of evidence.

It was submitted on behalf of the appellant stool that the validated decision, exhibit G, made in 1907 and recorded in the boundary book in 1930 is binding upon the Banka stool, and since it fixed the western boundary of Banka stool lands on the Debi river, it operated as estoppel against the Banka stool, and the Banka stool therefore cannot be heard to assert ownership of the land in dispute east of the Deben river. For the Banka stool it was submitted that estoppel by record must be mutual and can only operate between parties to the dispute in which the decision is made; that the plaintiff stool were not parties to the dispute which terminated in the validated decision, exhibit G, therefore they cannot claim any right thereunder, and the Banka stool cannot be held bound by it vis-à-vis the claim by the plaintiff stool, and that the trial judge was right when he so held. Dealing with the validated decision, exhibit G, the learned trial judge said:

“Mr. Owusu for the plaintiff stool argued with a great deal of persuasiveness and with his acknowledged ability, if I may say so without seeming to be patronising, that the Banka stool was, by that demarcation, statutorily estopped, so to speak, from claiming any land west of the Odei river. Although not without some hesitation, I have come to the conclusion that that contention ought not to be sustained. Jadam was not represented at this palaver and could not be held bound by it. It therefore ill accords with one’s notions of justice, that Jadam should be permitted to use that demarcation against Banka when the latter cannot do the same. It certainly conflicts with the accepted equitable principle that estoppels must be mutual. Having come to a clear conclusion on the facts that what are now loosely described as Jadam stool lands in fact belong to Banka whose ancestors permitted the Jadams to settle on it on terms well known to customary law, it would, in my opinion,

[p.636] of [1966] GLR 627 be a fraud on the statute if Jadam could be permitted to rely on it in defeasance of the Banka title.” In so directing himself, the learned judge erred, in our view, in two material respects: (1) by failing to direct himself on the purpose of the Boundary, Land, Tribute, and Fishery Disputes (Executive Decisions Validation) Ordinance,2 and particularly on the proper interpretation of the imperative provision of section 3 thereof; and (ii) by failing to direct himself on the principle that although in equity estoppel must be mutual, a stranger to a former suit may successfully plead in a later suit to which he is a party that his opponent is bound by an admission against interest which he had made in the previous suit, i.e. that his opponent is estopped from denying what he had sworn to in the previous suit to obtain a declaration in his favour.

The object of the Ordinance, Cap. 144, as contained in the preamble thereto, is that “it is in the public interest expedient that the said decisions [decisions as to boundaries of land claimed by a stool, etc.] shall not now or hereafter be re-opened in regard to the said disputes and matters,” and section 3 (1) also provides that:

“Any executive decision in a dispute or matter relating to the ownership or boundaries of any land or to tribute or fishery rights in Ashanti given, confirmed, or approved by the Chief Commissioner prior to the commencement of this Ordinance, and officially recorded in a Boundary Book is hereby validated and invested with full and definite legal force and effect for all purposes whatsoever as against all persons whomsoever the rights of the Republic alone being reserved.” The plain, unambiguous, definite and imperative words “is hereby validated and invested with full and definite legal force and effect for all purposes whatsoever as against all persons whomsoever the rights of the Republic alone being reserved” permit, in our view, of no other interpretation than that a boundary demarcated and validated is binding not only upon the parties to the dispute which resulted in its demarcation, but also upon any other person who failed to assert an adverse claim when the demarcation of the land was publicly made.

Again, since in order to obtain protection of a validated decision for their lands, the Banka stool had to describe the whole of the land they claim to be vested in them, and had the same publicly demarcated, and since for that purpose they claimed and had the Deben river demarcated and finally settled as the western boundary

[p.637] of [1966] GLR 627 of their land, they cannot now be heard to claim ownership of the land on the other side of the Debi river unless they base their claim upon an acquisition made subsequent to the validated decision. The Banka stool never relied upon any acquisition subsequent to 1907, they based their claim upon an ancient original settlement. The contention of the plaintiff stool on this point must therefore be upheld. Now, one of the most important pieces of evidence of occupation tendered by the plaintiff stool is evidence of a validated concession granted by them to A. Lang & Co., Ltd. and covering the northern portion of the land in dispute including the area claimed by the Ofoase stool. The Ofoase stool did not intervene in the concession proceedings and the certificate of validity was granted without Opposition. The Bankahene is a signatory to the concession lease of which the certificate of validity was granted. Learned counsel for the plaintiff stool argued that upon a proper interpretation of the Concessions Ordinance,3 the Ofoase stool who stood by and did not challenge the right of the plaintiff stool to grant the concession are estopped from challenging the right of the plaintiff stool as landlords of that portion of the land; he argued further that the Bankahene concurred in the grant of the concession and did so as a statutory confirming party by virtue of the position he held as president of the state council, and not upon an inherent customary law right,, and his stool are therefore estopped from denying the ownership of the plaintiff stool to the land or their right to deal with the same as owners thereof. With respect to this concession, the Ofoase stool led some feeble evidence that after the grant of the certificate of validity they approached the holders of the concession, A. Lang & Co., Ltd., and asserted their right to the land, and that A. Lang conceded their right. The trial judge rejected the views advanced by counsel for the plaintiff stool; he directed himself as follows:

“The one solid piece of evidence on which the plaintiff stool placed considerable reliance as an act of ownership on its part, is the grant of land by the concession which is known as the Jadamwa timber concession, certificate of validity of which was granted by this court on 10 August 1955. The area of that concession is shown on the plan exhibit C and is coloured chrome orange. That area covers practically the whole of the land claimed by the plaintiff stool. The plaintiff ‘s evidence on this was that when the inquiry preceding the grant of the certificate of validity was held in this court, neither Ofoase nor [p.638] of [1966] GLR 627

Banka laid any claim to the land or sought to oppose the plaintiff, the Bankahene signed the concession lease as a witness. If that evidence be true, it is strong evidence against Banka that it acquiesced in the exercise of ownership of the land in dispute solely by Jadamwa. But the Banka evidence is that that assertion is false and that far from signing as a witness, the Bankahene jointly granted the land to Lang with the Jadamwahene. The plaintiff himself produced the concession lease (exhibit K). This proves the Banka claim to be true. The Bankahene was a co-lessor in that document, not a witness. This lease was dated 13 August 1953 and was executed a few days after Bodwesangohene’s arbitration and the fact that Jadamwahene permitted the Bankahene to make the grant jointly with him, is further evidence in support of the Banka claim. I do not of course forget that the concession notice (exhibit H) stated that the concession was being granted by the Jadam stool and the Banka Local Council. But that is clearly inaccurate. While the Jadamwahene and the Bankahene signed the lease as first parties, the Banka Local Council were described as second parties and were obviously confirming parties.

In my opinion, the probabilities of this case and all the available credible evidence wholly and decisively contradict the Jadamwa claim to absolute ownership of the land in dispute and support the Banka claim. I do not need to go into any further details. I believe I have said enough to indicate the process of reasoning which leads me to the firm conclusion that the claim of the Banka stool has in fact been established.” As regards the Ofoase stool the learned judge directed himself as follows:

“The one solitary act of ownership which that stool did on that land was the grant of the Jadamwa concession. This was unknown to Ofoase. The evidence completely satisfies me that when Lang in reliance on that concession, trespassed into this area, the Ofoase stool asserted its rights and got Lang to concede it. Accordingly, the trees felled in this area were sold back to Lang by the Ofoase stool.” Counsel for the Banka stool, in opposition to the submissions of counsel for the plaintiff stool, argued that the signature of the Bankahene is not capable of any other interpretation except that he is a joint grantor with the plaintiff stool of the concession, and not as a statutory concurring party; and for the Ofoase stool it was argued that by reason of the evidence they gave that A. Lang subsequently conceded their claim, the Ofoase stool cannot be estopped now from

[p.639] of [1966] GLR 627 opposing the plaintiff’s claim to the land. Both counsel for the Banka stool and the Ofoase stool therefore submitted that the directions the learned judge of the High Court gave himself are quite proper, and that his decision on this point is sound.

The issue to be resolved as regards the Banka stool is the capacity in which the Bankahene executed the concession lease. Conclusive proof was produced that Banka, Ofoase and Jadamwa constitute one state council area under the State Councils (Ashanti) Ordinance, 1952,4 that the presidency of that council rotated between the stools which are members of it, and that at the date of the execution of the concession lease, the Bankahene was the president. Section 24 (1) of this Ordinance provides that: “It shall not be lawful, without the consent of the State Council concerned, to alienate or pledge any Stool property, and any instrument, and any transaction or agreement (whether in writing or not), which purports to effect any such alienation or pledge shall, in the absence of such consent, for all purposes be null and void.” The required statutory consent is indicated by the president joining the grantor stool to execute the deed effecting the alienation.

Again, by customary law, alienation of stool land by deed is effected by the occupant of the stool executing the deed with the consent and concurrence of his elders and councillors; that requisite customary consent is evidenced by some of the principal elders and councillors signing as witnesses to the deed. Since the consent required to be given under section 24 (1) of the State Councils (Ashanti) Ordinance is statutory and not customary, the consent of the elders and councillors is not required to the execution by the president of the council, qua president. Again, section 75 of the Local Government Ordinance5 also requires the concurrence of the local council in alienation of stool land, and that regard must be given to that provision when dealing with alienation of stool land. These are the principles which the learned judge should have applied in interpreting the concession lease, exhibit K, and the notice of the concession form E, exhibit H, in order to decide upon the capacity in which the Bankahene executed the concession lease. The concession notice form E, exhibit H, states inter alia:

“The Concession was granted by [sic.] Gyadamwah [Jadamwa] timber concession by the Gyadamwah stool represented by Chief Kwasi Asiko, Gyadamwahene, acting for himself and as the [p.640] of [1966] GLR 627 representative of the elders, councillors and people of the said stool and Banka Local Council.” The proper interpretation of exhibit H therefore is that the only stool making the grant is the Jadamwa stool, and that it made it with the statutory consent of the local council as provided in section 75 of Cap.64. Again, the preamble to the concession lease, exhibit K, states:

“This agreement made the thirteenth day of August one thousand nine hundred and fifty- three between the Gyadamwah stool represented by Chief Kwasi Asiko, Gyadamwahene [Jadamwahene] with the assent and concurrence of the elders, councillors and people of the said stool of Gyadamwahene [Jadamwahene] and of Nana Brako Ababio II Bankahene which assent and concurrence is by native customary law requisite and necessary . . .”

This preamble makes it quite clear that the only elders and councillors whose consent and concurrence is by native customary law requisite and necessary are the elders and councillors of the Jadamwa stool not of the Banka stool. It follows then that the Bankahene executed the concession lease in a capacity which does not by customary law require the consent and concurrence of his elders and councillors. Therefore taking the notice of the concession, exhibit H, and the concession lease, exhibit K, together, the only reasonable explanation as to the execution of the concession lease by the Bankahene is that he executed it by virtue of the office he held as president of the state council, and by virtue of the provisions of section 24 (1) of the State Council (Ashanti) Ordinance, and not in exercise of an inherent customary right as joint owner. Therefore the learned judge, in our view, erred in holding that the Banka stool was joint beneficial grantor with the Jadamwa stool in the concession.

Turning now to the Ofoase stool, it should be observed first of all that that stool never pleaded that A. Lang at any time conceded their right to the land; moreover they did not call A. Lang to prove that they conceded the right of the Ofoase stool to the land, the subject of their concession and accepted them as their landlords. In those circumstances the evidence they gave in that regard amounts to nothing more than mere allegations or averment which call for proof, but which was not proved: see Yoguo v. Agyekum.6 Therefore in law that evidence should have been rejected by the court below. Again, one of the principal objects of the Concessions Ordinance is to ensure to the holder stability of title and undisturbed possession:

[p.641] of [1966] GLR 627 see Edward Ramia, Ltd. v. African Woods, Ltd.7 In pursuance of this object, section 32 (1) and (2) of the Concessions Ordinance provides8 :

“(1) A certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto, and shall be effective in respect of the whole area of land contained by the boundaries stated in such certificate, whether or not any discrepancy exists between such area and the area indicated by the notice and plan of the concession referred to respectively in subsections (1) and

(3) of section 8.

(2) A certificate of validity (whether issued under the provisions of this Ordinance or of any Ordinance repealed by this Ordinance) shall be conclusive evidence that all the requirements of the Ordinance under which it was granted or purported to be granted and all matters precedent and incidental thereto have been complied with, and shall not be liable to be impeached by any person by reason of any lack of notice of the boundaries or extent of the land in respect of which it is given, or for any other reason or on any other ground save that of fraud to which the holder of the concession is proved to be a party.”

Therefore once a certificate of validity of the concession in the present case was granted to them, A. Lang obtained a title which is good and valid against any person whomsoever claiming adversely thereto. It is therefore inconceivable that knowing their legal rights A. Lang would attorn tenants to the Ofoase stool in respect of the concession, or acknowledge Ofoase’s right to claim rents or to sell the trees within the concession to them. The evidence that they did so is therefore ridiculous; no wonder the Ofoase stool did not call A. Lang to substantiate that allegation.

The law is that once a concession has been validated the grantor thereof continues to be the person entitled to all the rights thereunder. Before a third party who had not intervened to oppose the grant of the certificate of validity can claim any rights under the concession he should either acquire title to the land from the grantor of the concession, or should obtain, in a court of competent jurisdiction, a declaration of his title to the land against the grantor mentioned in the certificate, and the court would then, upon application on notice of such person or of the holder of the certificate, endorse the certificate accordingly; this is by virtue of the provisions of section 32 (3) of the Concessions Ordinance which says: [p.642] of [1966] GLR 627

“In the event of the land referred to in any certificate of validity or any portion thereof becoming or being declared to be the property of any person other than the grantor mentioned in such certificate, the Court shall, on the application upon notice of such other person or of the holder of the said certificate, endorse on the certificate a statement to that effect and any other prescribed particulars, and the Court shall cause to be sent to the Accountant-General a certified copy of such endorsement.”

The Ofoase stool have not obtained a declaration of title against the Jadamwa stool, the grantors of the concession, and were not able to prove that they have become owners of the land since the grant of’ the certificate of validity. Their claim of rights in the concession should therefore not have been entertained by the trial court. In those circumstances the concession remains a solid unassailable piece of evidence of exercise of acts of ownership of the land by the plaintiff stool.

As regards the issue between the plaintiff stool and the syndicate, namely, whether the syndicate are abusa tenants or purchasers of the determinable title in the land, the learned judge resolved the same in favour of the syndicate. He based his decision on three points, (i) receipts tendered by the syndicate showing that they are purchasers, (ii) that the plaintiff stool have not demanded and received abusa tolls from the syndicate since the syndicate entered into possession of the land, and (iii) that guaha custom was performed to conclude the transaction.

It was submitted on behalf of the plaintiff stool and with respect to the receipts, that the learned judge of the High Court misdirected himself in holding that the receipts are binding on the plaintiff stool because

(i) on the face of each of those receipts the chief and elders of Jadamwa who purported to have given the receipts are illiterates, (ii) there is nothing on the face of any one of those receipts to show that the contents were read and interpreted to those illiterates before their marks were made thereto, and (iii) none of the witnesses of the receipts was called to prove the receipts.

These submissions of learned counsel for the plaintiff stool are reasonable. Section 4 of the Illiterates’ Protection Ordinance9 lays down the following mandatory provisions:

“Every person writing a letter or other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall — [p.643] of [1966] GLR 627

(1) Clearly and correctly read over and explain such letter or document or cause the same to be read over and explained to the illiterate person;

(2) Cause the illiterate person to write his signature or make his mark at the foot of the letter or other document or to touch the pen with which the mark is made at the foot of the letter or other document…”

On their face, there is nothing to show that the contents of the receipts were carefully read, interpreted and explained to the illiterate signatories thereto as required by section 4 (1) of Cap. 262, and that they perfectly understood the same before their marks were made thereto. But the omission to record that fact on the receipts could have been supplied by oral testimony of the literate persons who made their marks. But no such evidence was forthcoming. The most serious thing is that these receipts were admitted without proof; no evidence was led to prove that they were prepared upon instructions of the Jadamwahene and his elders, and no evidence was led as to their execution. It is true that these receipts were admitted without objection but their admission without proof that they were prepared upon the authority of and were signed by the plaintiff stool did not make them evidence against the plaintiff stool: see Dadzie v. Kokofu.10 Unfortunately the learned judge misdirected himself by failing to direct himself on this aspect of the case and the law relative thereto.

The argument of the learned trial judge that because there is no evidence that abusa tolls were ever demanded or paid, it is conclusive proof that the syndicate are not abusa tenants but rather purchasers of the land is fallacious. Where abusa or abunu tenancy is in respect of growing permanent crops like cocoa, oil palm, rubber, kola nuts, no abusa toll can be exacted and none is payable until the permanent crops begin to yield. The seasonal crops like cocoyam and plantain, which must be grown on the land in the interim to provide shade and protection for the young permanent trees and also regularly grown with the permanent crops, are the exclusive property of the tenant. As Coussey P. points out, the tenancy is granted “to a stranger to work on in return for a fixed share of the crops realized from the land,” i.e. crops contracted to be grown: see Akofi v. Wiresi.11 Thus mere possession of the land is not enough. Since in this case the crop being grown on the land is cocoa, no abusa toll may lawfully be exacted until the cocoa begin to yield. Therefore in order that their contention of non-payment of tolls can avail them, the [p.644] of [1966] GLR 627 onus is upon the syndicate to prove, not merely that they have been in possession of the land for a long period without payment of tolls, but rather that the farms have been yielding cocoa for a number of years, and that no tolls have been exacted from them since the farms began to yield. It is therefore a misdirection by the learned judge to hold that mere non-payment of tolls by the syndicate over a period is conclusive evidence that their occupation is in the right of purchasers and not as tenants.

Against the decision of the lower court that the guaha custom was performed and therefore the tenancy between the syndicate is one of purchase and not abusa tenancy, counsel for the plaintiff stool submitted that (i) the syndicate should not have been permitted to lead evidence of it because they failed to plead guaha custom specifically as they were required by Order 31, r. 9 of the Supreme [High] Court (Civil Procedure) Rules, 1954,12 to plead, since it is customary law, (ii) that no weight should have been attached to the evidence of guaha because it is very feeble, and was resorted to at the very last moment, long after the plaintiffs had closed their case. For the syndicate it was argued that in view of the provisions of section 76 of the Courts Act, 1960,13 which makes customary law a question of law and not a question of fact, the provisions of Order 31, r. 9 which necessitate pleading of customary law are redundant. It was further argued that Order 31, r. 9 is intended to prevent surprise on the other party, and that no surprise was sprung upon the plaintiff stool either by the non-pleading of the custom, or by omission to cross-examine witnesses for the plaintiff stool on it, because firstly, guaha is a general custom which need not be pleaded and also because the syndicate’s plea that they are purchasers of the land implied performance of guaha custom. As to the non-cross-examination of the plaintiffs’ witnesses on the performance of guaha it was further submitted that none of those witnesses was an eyewitness to the sale and therefore no useful purpose would be served in cross-examining any of them on it. The contentions of both counsel on this issue of guaha is based upon wrong premises that the performance of guaha custom is a question of law. The concept that the performance of guaha is the customary law mode of effecting a sale is a question of law, and the customary law is that where guaha is not performed there is no sale, where guaha is performed, there is a sale: see Angmor & Co. v. Yiadom III.14 But whether or not the guaha custom was performed in a particular case is a question of fact. The plea of the syndicate

[p.645] of [1966] GLR 627 that they purchased the land is ambiguous; it may be purchase by deed, or purchase under customary law. Therefore if the case of the syndicate is that the sale and purchase was by guaha, they should have pleaded that fact specifically; having failed to plead that fact they should not have been permitted to lead evidence of it, and the evidence led should have been ignored by the trial court: see Wilkinson v. Edusei.15 Again, the law requires that a party should put as much of his case as possible to his opponent while the opponent or his witness is in the witness-box and has the opportunity to contradict the same; if he fails to do so, a court should not attach much weight to the evidence that he later gives on his behalf on that particular issue. That principle must be applied to this case; but the learned trial judge failed to apply it.

And now to the general ground that the judgment is against the weight of evidence. On the merits of the case the learned trial judge held that the plaintiff stool failed to prove their title to the land in dispute or to any portion thereof, on the following grounds:

(i) the plaintiffs failed to call three of the five stools whose land form a boundary with the land in dispute to support their boundary with them,

(ii) the Banka stool and the Ofoase stool who are boundary owners denied the boundary as claimed by the plaintiff stool,

(iii) that apart from the grant of the concession the plaintiff stool did not prove effective possession of the land, and

(iv) that the claim of the plaintiff stool of ancient settlement on the land cannot be accepted because in a record of discussion which took place in 1945 before a district commissioner, exhibit 5, it is shown that the district commissioner said: “In view of the ruling and other facts on record, I hold that neither the people of Jadam nor Kojo Appianin II have any claim to the land between the River Anum and Odei.”

Dealing with the question of boundaries the learned judge said: “Nature neatly demarcated this boundary as the plaintiff claims, it is entirely surrounded by water. On the south west, his land is separated from the stool land of Jimachi by the Anum river. A Kofi Abankwa who is the Okyeame of the Jimachi stool, gave evidence on behalf of the plaintiff stool and confirms the plaintiff’s evidence. The plan (exhibit C) shows that the stools which own contiguous lands with the plaintiff stool are [p.646] of [1966] GLR 627 Ofoase, Dwendwenasi, Otuokwai and Banka. No representative of the Dwendwenasi stool was called to testify to having a common boundary with the plaintiff. The remaining contiguous stools, namely, Ofoase, Banka and Otuokwai testified against the Jadam claim.”

According to the plaintiff stool and as delineated on the plan, the land they claim is bounded “on the west by Tabutuo stream and River Anum, on the east by Odei river, and on the south by Anum river.” According to them, (i) the Odei river their eastern boundary is the boundary between them and the Banka stool; (ii) the Anum river is the southern portion of their western boundary, and is between them and the Jimachi stool, (iii) the Tabutuo stream is the northern portion of their western boundary and is their boundary with the Ofoase stool, and (iv) that the Asamansuo stream, a continuation of the Odei river, together with Punpunasi stream is boundary between them and Dwendwenasi stool on the north. Now, as correctly stated by the learned trial judge in the passage cited above, the Jimachi stool gave evidence which confirmed the plaintiffs’ evidence; that evidence was not challenged. It therefore conclusively fixed the Anum river as the southern portion of the western boundary of the plaintiffs’ land. Again as earlier pointed out the Banka stool admitted forming a boundary with the plaintiffs, but pleaded that that boundary is Nsamanfogore-Adowa stream and not the Deben river as claimed by the plaintiff stool; it became necessary therefore for the trial court to determine which of the two is the boundary, the Deben river or the Nsamanfogore-Adowa stream. To resolve that issue the trial court, as earlier stated, ordered the Banka stool to attend the survey of the land to point out the Nsamanfogore-Adowa stream for the same to be demarcated on the plan. At the survey the Banka stool were unable to point out the Nsamanfogore-Adowa stream; to overcome their embarrassment, they changed their story and told the surveyor that they have no boundary with the plaintiff stool, rather, that they have boundary with the Ofoase stool. At the trial too they failed to prove any boundary whatsoever. In that situation the evidence given by the plaintiff stool that their boundary with the Banka stool is the Deben river stands uncontradicted. Furthermore, the validated decision, exhibit G, as pointed out already, operates as an estoppel against the Banka stool denying that their eastern boundary is the Debi river, and of course since their admitted neighbour on the east is the plaintiff stool, it goes without question that the Debi river was conclusively proved to be the boundary between the plaintiffs’ stool and Banka.

[p.647] of [1966] GLR 627

As regards the boundary with Ofoase the validated decision, the legal effect of which has already been dealt with above, estopped the Ofoase stool from denying the boundary proved by the plaintiffs. In view of the proof given by the plaintiffs of their boundary with Banka and with Ofoase, the bare denial made by the Banka stool and the Ofoase stool that those streams and rivers were the respective boundaries amounted to nothing.

And now to the Dwendwenasi stool; it is correct as stated by the learned trial judge that the Dwendwenasi stool were not called by the plaintiffs to give evidence on their behalf. There is evidence, however, that they attended the survey and confirmed the boundary as shown by the plaintiffs; this fact is recorded by the surveyor on the plan, exhibit C. Since the statement made by the representative of Dwendwenasi stool at the survey was not challenged by any other person, and since the surveyor who gave evidence about the making of the plan was not cross-examined on that matter, the implication is that that fact is not in dispute, there was therefore no need to call the Dwendwenasi stool to give further evidence of it. The law is that when a party makes an averment and that averment is not denied, no issue is joined on that averment, and no evidence need be led. Again, when a party gives evidence of a material fact and is not cross-examined upon it, he needs not call further evidence of that fact. That being the law, the learned trial judge misdirected himself in making capital of the fact that “no representative of the Dwendwenasi stool was called to testify to having a common boundary with the plaintiff.” We turn now to the finding of the trial judge that the plaintiffs did not evidence any exercise of acts of ownership over the land apart from the grant of the concession. The principle that it is unnecessary to adduce evidence in respect of assertions which are not denied by the other party applies also to assertions or claims made to farms, villages and ancient relics on the land during the survey. The plan coupled with the evidence of the surveyor which was not challenged shows that more undisputed claims are made by the plaintiffs to farms, villages and relics than are claimed by any of the other two stools; then there is the plea of the syndicate which was not amended that their possession of a portion of the land was as grantees of the plaintiffs. By that plea they admitted that whether as purchasers or as tenants, they were put in possession of the land by the plaintiffs. There cannot be a more open, positive or effective exercise of acts of possession of land than by placing a purchaser, tenant or a licensee on it. It is, therefore, not accurate when the learned trial judge stated that apart from granting the concession the plaintiffs did not evidence any exercise of acts of ownership of any portion

[p.648] of [1966] GLR 627 of the land they claimed. It necessarily follows that the learned trial judge erred on the question of possession also.

The fourth point upon which the trial judge rejected the plaintiffs’ claim to the land is that in a record tendered in evidence there is a decision given in 1945 by the District Commissioner, Obuasi, in connection with a claim made by one Kojo Appianih II, a former occupant of the plaintiff stool, the district commissioner had concluded that “In view of the rulings and other facts on record, I hold that neither the people of Jadam nor Kojo Appianin II have any claim to the land between the rivers Anum and Odei.” Upon this the trial judge observed: “It seems to me impossible that such a finding could have been made if Jadams were able to establish that the land was settled upon by their ancestors from ancient times.” Accordingly he concluded that the plaintiffs have no title to the land. The document from which the learned trial judge extracted the passage is exhibit 5. Examination of that document shows that the passage referred to in the judgment of the court below was taken out of its context. A careful reading of the document shows that the land in dispute in that case is land on the right bank of the river Prah, and between the rivers Anum and Odei, and near the Prah Anum Forest Reserve, and which is bounded on one side by the river Prah, on one side by the Anum river and on another side by the Odei river. Counsel for the plaintiffs identified the location of that land on a topographical sheet of the area, exhibit F in the case. If the learned judge had read the whole document and directed his attention to the topographical sheet, exhibit F, it would have become obvious to him that the land referred to in exhibit 5 on the right bank of the Prah, is completely outside the area of the land, the subject-matter of these proceedings. The defendants stand or fall with Ofoase stool through whom they claim title. Since it is shown that the Ofoase stool has no title, the defendants too acquired no title.

Each of the grounds relied upon by the appellants to support their appeal is sustained. The appeal must therefore be allowed, and it is accordingly allowed, the judgment of the court below is set aside including the order as to costs, the costs if paid should be refunded. For the judgment of the court below the following is substituted: There will be judgment for the plaintiff stool against the syndicate, the defendants, the Banka stool and the Ofoase stool for:

(1) two hundred pounds (£G200) or ¢480.00 damages,

(2) mesne profits from the land, and

(3) injunction restraining the syndicate, the defendants, the Banka stool, the Ofoase stool and each of them, their agents, servants and workmen from committing further trespass on the land. [p.649] of [1966] GLR 627 The appellants will have their costs in this court and in the court below.

DECISION

Appeal allowed.

S. E. K.