FOSU v. KRAMO [1965] GLR 629

DIVISION: HIGH COURT, SUNYANI

DATE: 11 NOVEMBER 1965

BEFORE: HAYFORD-BENJAMIN J.

CASES REFERRED TO

(1) Mills v. Addy (1958) 3 W.A.L.R. 357.

(2) Yerenchi v. Akuffo (1905) 1 Ren. 362.

(3) Kok Hoong v. Leong Cheong Kweng Mines, Ltd. [1964] A.C. 993; [1964] 2 W.L.R. 150; 107 S.J.

1037; [1964] 1 All E.R. 300, P.C.

(4) Dearle v. Hall (1823) 3 Russ. 1; 38 E.R. 475.

(5) Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172.

NATURE OF PROCEEDINGS

ACTION for declaration of title, perpetual injunction and damages for trespass. The facts are fully set out in the judgment.

COUNSEL

Kofi Acquaah for the plaintiff.

Owusu-Ansah for the defendant. JUDGMENT OF HAYFRON-BENJAMIN J.

The plaintiff by his writ of summons dated 29 July 1964 claims as against the defendant a declaration of title to one cocoa farm lying and being at a place commonly called Adwoano on Dwumo stool land and bounded on all sides by the properties of Kwame Dapaah, Akua Krah, Kofi Peprah and the Adwoa stream. He also claims an order for perpetual injunction and damages for trespass. There is no dispute as to the identity of the farm.

The plaintiff’s case as appearing on his pleadings is shortly, that on 8 July 1964, he purchased the farm the subject-matter in dispute, at a public auction conducted at Dwumo. This sale was effected under a power of sale contained in a mortgage deed executed between two brothers and a sister of the defendant as mortgagors and one Kwasi Kwakye, a licensed moneylender as mortgagee. The mother of the defendant signed the deed as a witness. After the purchase, the plaintiff says he entered into possession of the said farm, but the defendant and other men committed trespass on the farm on 28 and 29 July 1964 by forcibly entering the said farm and plucking and carrying away ripe cocoa pods.

The defendant denies the allegation of trespass and contends that the farm was cultivated by one Kwame

Poku deceased, his elder brother as his self-acquired property. After the death of this Kwame Poku the farm became, in accordance with custom, family property. He, the defendant, was elected the customary successor of Kwame Poku and also became head of the immediate family originating of course from the mother of Poku and the defendant, Yaa Fremaa. The defendant denies that any of his relatives have ever obtained a loan from Kwasi Kwakye, and contends that there could therefore be no mortgage deed executed in respect of the farm. He further contends that in any event, the farm being family property, individual members of the family have no right to dispose of it or offer it as security without the consent and concurrence of the other members of the family. He however admits that his elder brother Kofi Attim obtained a loan of £G1,000 on the security of this farm from one Barnie who is now deceased, and who has been succeeded customarily by one Kojo Kyei. Of this loan, £G268 6s. 8d. was paid by Attim leaving a balance of £G731 13s. 4d. for which Kojo Kyei obtained a default judgment in the High Court in

Sunyani. Kyei purported to go into execution by attaching the said farm under a writ of fi. fa. The defendant promptly filed an interpleader summons No. 17/64, and at the hearing Kyei through his solicitor admitted the claim by the defendant and the farm was accordingly released from attachment. He contended therefore that the plaintiff is estopped from disputing his title. He bases his plea of estoppel on two further grounds, namely:

(a) That the plaintiff and Kwasi Kwakye (whom he has sued on his counterclaim) are claiming through

Kojo Kyei (successor of the late Kwame Barnie) who has already admitted in the interpleader suit the defendant’s title to the farm.

(b) That Kwasi Kwakye has admitted at diverse places and in a statement to the police that he has never given any money to the said Attim the mortgagor-debtor.

The defendant further contends that the actual sale was fraudulent because the plaintiff and Kwasi

Kwakye are in effect attempting to claim payment of the alleged loan twice over from Attim. He also alleges that the conduct of the auction sale was irregular. The sale he finally states is wrongful since the farm belongs to the family and not to Kofi Attim personally. He therefore counterclaims against the plaintiff and Kwasi Kwakye for:

(a) nullification and setting aside of the purported sale of the disputed cocoa farm;

(b) declaration of title to the said farm; and

(c) general damages. Kwasi Kwakye’s case is that in May 1962, Attim sought a loan of £G930 from him on the security of family property, i.e. a cocoa farm. A mortgage deed was executed by Attim and all the other members of his family then available; the deed being witnessed by one Kwabena Sarfo, the Krontihene of Dwumo. He paid out the sum of £G930 and charged interest of £G70. The mortgagors being in breach of the terms of the mortgage, he served them with a month’s notice to settle the outstanding debt. They failed to do so, and he

[p.633] of [1965] GLR 629 instructed an auctioneer to sell the property by auction. The property was sold and the plaintiff bought it.

Kwakye further contends that Attim is the head of the defendant’s family.

Before dealing with the issues that arise for determination, I think it will be appropriate at this stage to dispose of the controversy as to who is the head of the family. In the particular circumstances of this case,

I do not think it is material who is the head of the defendant’s family. The defendant admittedly was away from Dwumo at all material times relevant to this case. According to him, he deputed Attim to look after this farm during his absence. The law is clear and settled that where there is no duly appointed head of a family, or where the duly appointed head is absent, the right to represent the family, to take charge of the family property and generally to exercise the powers of the head of the family is exercisable by the eldest male member of the family. As Ollennu J. (as he then was) said in the case of Mills v. Addy1:

“By native custom, absence of a duly elected head of the family, whatever the cause of that absence, is not permitted to prejudice the interest of the family. Therefore in the absence of a duly appointed head, the eldest male member of the family, and failing him, the eldest female member, acts as head of the family and takes charge of family property. See Sarbah, Fanti Customary Law (1896), p. 38.”

The farm in dispute being admittedly the self-acquired property of Kwame Poku devolved on his death onto his immediate family. Bentsi-Enchill in his book Ghana Land Law, after reviewing the authorities states at p. 41:

“We conclude then that the better view is the first one which holds that upon the death intestate of a person, both the legal title to and the beneficial enjoyment of his property devolve upon his immediate family. What is the immediate family of a man in a matrilineage? This is the group made up of persons whom Sarbah called ‘Real’ and ‘Proper’ successors. That is to say, a man’s mother, uterine brothers and sisters, and the issue of such sisters. This is the group which inherits the intestate’s property, the title thereto, as well as the right to possession and enjoyment of it.”

As Sarbah states in Fanti Customary Laws (2nd ed.), pp. 101-102:

“The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of

[p.634] of [1965] GLR 629 inheritance, but by his mother and her issue according to seniority . . .

There are . . . four kinds of successors, viz. Real, Proper, Ordinary, and Extraordinary.

The Real successor of a person is his mother.

We call those persons Proper successors who are the uterine brothers and sisters of the deceased, and the issue of such sisters; but never can the pedigree be traced out in the line of the male to.”

“[E]very woman” says Ollennu J., as he then was, in Mills v. Addy “becomes the originator of a family.”2

The family which in law is entitled to the cocoa farm left by Kwame Poku is the family originating from his mother Yaa Fremaa. The most senior male member of this family is Attim and the most senior female member is of course Yaa Fremaa herself. Whether or not the defendant is the head of the family, in his absence Attim was the proper person to act as such head. It would be intolerable if a head of family be allowed to globetrot around the countryside, and suddenly come home to impeach transactions solemnly entered into by those who according to customary law are authorised to act on behalf of the family even though third parties have thereby incurred liabilities and acquired rights. There will be no security in business transactions if the law makes this possible. It would then be possible for a family to snap their fingers at bargains deliberately made, bargains not unfair in themselves and in which the persons seeking to enforce them have a legitimate interest to enforce. This would be unreasonable, and customary law as

Griffith C.J. said in Yerenchi v. Akuffo “generally consists of the performance of the reasonable in the special circumstances of the case”.3

Having demonstrably established the irrelevancy of the issue as to the headship of the family, I shall now proceed to consider the main and central issue raised in this case, and it is eminently one of fact. It is this, did Attim and others borrow any money from Kwasi Kwakye? As I have already noted, the defendant is contending that both the plaintiff and Kwakye are claiming through Kyei. This is precisely what they are not doing. From their pleading and evidence before this court it is clear that they are setting up an independent loan transaction negotiated and effected by Attim and others with Kwakye. The evidence on behalf of Kwakye in support of this contention is in my view overwhelming. The mortgage deed has been examined by the police, and it bears the thumbprints of Attim

[p.635] of [1965] GLR 629 and his brother and sister. It also bears that of the mother Fremaa. The terms of the mortgage as set out in the deed have been corroborated and confirmed by oral evidence which I accept. The due execution of the deed has been proved by evidence of sufficient cogency. The defence faced with this unimpeachable mortgage deed have set up the story (I use the word deliberately) that the loan in fact was negotiated and effected with Barnie, but as he had no moneylender’s licence, he allowed the document to be made in the name of Kwakye, who was his bosom friend and who had the requisite licence. There is no evidence of an admission either to the police or to any other person by Kwakye that he had not in fact paid any money to

Attim. The defence places great reliance on the suit brought by Kyei against Attim for £G731 before the

High Court, Sunyani, in which judgment went against Attim by default. I must confess that I have never come across and I hope I shall never come across the legal proposition which states that if B. and C. are bosom friends, an admission by A. that he is indebted to B. is proof or even evidence that he does not owe

C.

The binding force of the default judgment even as against Attim is extremely limited. The Privy Council has recently in the Malayan case of Kok Hoong v. Leong Cheong Kweng Mines Ltd.4 restated the effect of a default judgment. They held that while there is no doubt that by the law of England, which was the law applicable to the case, a default judgment is capable of giving rise to an estoppel per rem judicatam, the question is whether the judgment prayed in aid should be treated as concluding and for what conclusion it was to stand. Default judgments, they went on, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and they could estop only for what must necessarily and with complete precision have been thereby determined. Lord Radcliffe in delivering the opinion of the Board said5:

“For, while from one point of view a default judgment can be looked upon as only another form of a judgment by consent . . . and, as such, capable of giving rise to all the consequences of a judgment obtained in a contested action or with the consent or acquiescence of the parties, from another, a judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and indeed, grave danger in

[p.636] of [1965] GLR 629 permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default.”

If therefore the default judgment can be reopened even by Attim under certain circumstances, what evidential value is it against the plaintiff or Kwakye in this case? I say practically nil. The defence however contends that the fact that the two loans were both taken in 1962, one in March and the other in

May, tends to support their contention that it was in fact one loan. They say that it is not likely that one man Attim and members of his family could have mortgaged the same property twice in the same year to secure two separate loans. I am of the view that this contention is completely devoid both of logic and of reality. The success of such a contention will considerably relieve the burden on many a student of equity or real property; for a whole department of the equity and real property law deals with priorities between successive mortgages of the same property, and where all the mortgagees claim concurrent and contemporaneous rights of foreclosure or of sale. It is not the mere possibility, but the persistent reality of successive mortgages of the same property that lies at the foundation of the great learning surrounding the rule in Dearle v. Hall6 and other similar rules.

Moreover the evidence of the defendant himself makes it quite clear that in 1962 he had fallen into debt as a result of pre-financing his housing project. I fail to see how it can be said that it is unlikely that with the consent of the family he mortgaged this farm to two different mortgagees for loans to clear off the debt. The evidence of Kwakye on the circumstances leading to his failure to assert his rights under the mortgage to him in the lifetime of Barnie accords with common business sense and with basic legal and equitable principles. He says that after he had taken the mortgage from Attim and others, he learnt that the same farm had been the subject of a prior mortgage to Barnie. He complained to the Krontihene of

Dwumo, but later decided to allow Barnie to exercise his rights under his mortgage and obtain repayment of his loan, before he stepped in to exercise his own. In other words he postponed his rights and gave priority to Barnie. It was after the farm had reverted to Attim’s family that he stepped in to enforce his mortgage. This presumably was after Barnie’s death.

There is evidence adduced by the defendant himself that after Barnie’s death, his successor Kyei was more interested in calling in the loan, rather than to pursue the hazardous course of reaping the cocoa and paying off himself. The farm therefore naturally reverted to the family. This

[p.637] of [1965] GLR 629 conduct of Kwakye, the defendant contends, shows that he in fact did not advance any money, but that the loan was given by Barnie, the mortgage deed being executed in the name of Kwakye, and that

Kwakye had to wait till the death of Barnie to enable him fraudulently to assert that he also gave out a loan to Attim’s family. I am unable to agree. Kwakye’s conduct conforms to the basic rule both at law and in equity that competing interests will prima facie rank according to the order of their creation. Qui prior est tempore potior est jure; he who is earlier in time is stronger in law or where the equities are equal, the first in time shall prevail, is an equitable maxim of respectable antiquity and antecedents.

I do not see anything in the conduct of Kwakye remotely suggestive of fraud. Moreover fraud is such a serious allegation to make against a person that the law requires it to be proved with sufficient certainty. I do not think there is evidence before this court which justifies any inference of fraud or even unfair conduct. Kwakye says he paid Attim £G930 and charged him interest of £G70. This is supported by the receipt clause in the deed of mortgage, and by the oral evidence of the letter writer who saw to the execution of the deed and was present when the money was paid to Attim. I consider this evidence as worthy of credence and I accept it and find as a fact that Kwakye gave a loan of £G930 to Attim and others.

The defendant further contends that even if a loan was granted by Kwakye, it was taken by Attim in his individual capacity and that Kwasi Poku and Yaa Fremaa signed the mortgage deed in their individual capacities. Under no circumstances therefore can family property be sold to satisfy such a debt. Reliance was placed on a mass of authority which I find wholly irrelevant. The question is whether the family, i.e. that family originating from Yaa Fremaa, was aware and if so, did it concur in the mortgage effected by

Attim. The mere fact that the family did not have a share of the money is only a factor and to a large measure an irrelevant factor at that, in determining whether the family concurred in the mortgage. There is nothing in law to prevent a family allowing or permitting family property to be used as security for the debt of an individual member of the family.

Several fidelity guarantees granted to commercial firms for the employment of young men are secured by family property. Conversely there is nothing to prevent an individual member of the family consenting or permitting his self-acquired property to be utilised in securing a family debt. Family debts arising from family litigation are sometimes secured by the self-acquired property of individual members. In this case I am satisfied that Yaa Fremaa, Attim, Fokuo and Nkansa are sufficiently representative of the family originating from Yaa Fremaa, and that they can by their acts bind

[p.638] of [1965] GLR 629 the family. If they allowed one of their members to use family property to secure his private debt, I do not think they can be allowed to retract at this late stage when others have acquired rights thereby. From the evidence and from the legal propositions I have reviewed above, I am carried irresistibly to the conclusion that the mortgage of the farm to Kwakye was proper and regular, and that there is no room for impeachment either by a recalcitrant or itinerant member of the family.

Before discussing the remaining issues in this case, I do not think it is out of place at this stage to advert to a point raised by the defence that Kwakye or the plaintiff or both are estopped by the admission of title of the defendant made by the solicitor for Kyei in the interpleader proceedings, when Kyei attached the farm in dispute under a writ of fi. fa. I must confess that I do not discern such legal reasoning behind this contention unless it be presumably contended that the admission is in the nature of an admission in rem, binding the whole world. How can it conceivably be said that an admission by Kyei binds Kwakye where

Kwakye does not claim through Kyei. Moreover, Kyei’s admission is nothing more than an admission of the family’s title to the farm.

In the present proceedings, Kwakye’s contention is that the farm is family property; therefore whether the admission of Kyei through his solicitor is binding on Kwakye who is acting through the same solicitor or not, the question of estoppel does not arise. Moreover, it is by now trite law that where family property is in jeopardy of being lost, any member of the family can act to save it, and the presence of the present defendant in the interpleader proceedings can have no other justification other than that he was acting to save family property: see Mahmudu v. Zenuah.7 An admission of title means no more than that the judgment creditor admits that the property belongs to the family. It does not and cannot mean that he admits that the defendant is the proper person to have possession of such family property.

I have a sneaking suspicion that the other issues in the case were raised purposely to give the defendant reserve ammunition with which to fire at the plaintiff when all else failed. It is contended on behalf of the defendant that the exercise by the plaintiff of the power of sale under the mortgage deed is improper and irregular. The mortgage deed contains a provision that the mortgagee shall have power to appoint an agent, caretaker or other person to collect the cocoa crops from the cocoa farm under the abusa system. It then goes on:

[p.639] of [1965] GLR 629

“It is agreed that if the mortgagors shall part with the possession of the said cocoa farm hereinbefore mentioned or cause a breach of the foregoing agreement or indenture, or fail to permit the person or persons so appointed by the mortgagee to collect the proceeds therefrom the said cocoa farm and pay the said sum of

£G1,000 as aforesaid then the mortgagee shall be entitled to sell the property (cocoa farm) by public auction or private contract with the power to buy the same at any sale by auction without being answerable for any loss or diminution in price or otherwise”.

The evidence is clear that the defendant refused to allow Kwakye or his caretakers, agents or labourers to collect any cocoa; it is also clear that no payment has been made in respect of the loan. In the circumstances I hold that the exercise of the power of sale was proper. Moreover I do not think this allegation even if well founded can avail the defendant. The mortgage deed provides that the title of the purchaser shall not be defeatable on the ground that no cause has arisen to authorise the sale and that the due notice was otherwise not given.

I will not waste time with the allegations that the auction sale was not properly conducted because such a sale cannot be set aside unless there is evidence of substantial loss suffered by the defendant. In this case there is no evidence that the farm was sold substantially at an under value or in fact any evidence of loss whatsoever. I am therefore of the view that the plaintiff has discharged the onus of proof that lies on him to prove his title. I hold that he has done so with sufficient proof as to invest a declaration of title in him. I therefore declare the plaintiff the owner of the cocoa farm the subject-matter in dispute and dismiss the defendants’ counterclaim in its entirety.

The plaintiff’s claim in trespass and for an injunction must now be discussed. There is no doubt in my mind that the plaintiff after the purchase, took possession of the farm, and that after the defendant, who was at that time away in Sunyani, returned to Dwumo he retook possession knowing at that time that the plaintiff had purchased it by auction. This is trespass, and the court would have viewed it with gravity if the defendant had not given an explanation. According to him, when his claim against Kwakye and others had been dismissed by the Bechem Local Court, events moved with such rapidity and unfathomable regularity, that before he was aware of what was happening the property had been sold. His solicitor was like himself not stationary, and he could not obtain the benefit of his advice. He was not intending to take the law into

[p.640] of [1965] GLR 629 his own hands. He sought his solicitor, but before he could get in touch with him, the plaintiff had already taken out a writ of summons. He therefore asked his solicitor to file a counterclaim on his behalf.

I accept this explanation and award damages of £G50. I am satisfied that this is a proper case for an order of perpetual injunction against the defendant, his agents, previous workmen, etc. restraining them from interfering with the land. I do so order. The plaintiff shall have his costs which I assess at 200 guineas inclusive of 150 guineas for counsel.

DECISION

Judgment for the plaintiff.

E. A.-A.