COURT OF APPEAL, ACCRA
Date: 30 JULY 1975
LASSEY ANIN AND FRANCOIS JJ A
CASES REFERRED TO
(1) Browne v. Dunn (1894) 6.R. 67, H.L.
(2) Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C.
(3) Chahin v. Boateng [1963] 2 G.L.R. 174, S.C.
(4) In re Lartey (Decd.); Lartey v. Affutu-Nartey [1972] 2 G.L.R.488, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment dismissing the plaintiffs action and granting the defendant’s counterclaim that the properties in dispute were the self-acquired properties of the testator. The facts are fully set out in the judgment of Anin J.A.
COUNSEL
Totoe for the Plaintiff.
Mmieh for the defendant.
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JUDGMENT OF ANIN J.A.
This is one of those familiar cases where, upon the death of a wealthy person, bitter and protracted litigation springs up between his family on the one hand and the beneficiaries of his will on the other over the question whether the deceased’s estate was self-acquired or family property.
In the present case, the plaintiff-appellant is the head and representative of the deceased Kwame Johnson’s family, while the defendant-respondent is the executor of his will. The testator, Kwame Johnson of Kona (Ashanti) who died on 30 August 1967, made certain dispositions of realty in his will dated 27 August 1962. By his writ of summons, the plaintiff claimed, firstly, a declaration that twelve items of properties disposed of by the testator in his will, particulars of which were contained in an attached schedule, are family properties of the plaintiff s family and that the late Kwame Johnson was not entitled to dispose of them by will as if they were his self-acquired properties; and secondly, an order of perpetual injunction restraining the defendant from dealing with the alleged family properties.
The disputed properties comprised four cocoa farms at Kona, one cocoa farm at Akwasiase, four cocoa farms situate on Wassa stool land, and three houses, two of which were situate at Kumasi, and the third being a compound house at Kona. In his statement of defence and counterclaim the defendant denied that the said properties were the plaintiff s family properties, but maintained that they were self-acquired by the testator.
The basis of the plaintiff ‘s claim, as appearing in the pleadings, is that the Kona cocoa farms were originally cultivated by Johnson’s late mother (Akua Fobi) and sister (Ama Dapaa, deceased). In 1931 Johnson had inherited the sum of £500 on the death of his uncle (Kojo Takyi), whom he succeeded. He had also inherited the said four cocoa farms at Kona which were claimed to have been in the possession of his dead uncle, mother and sister, all of whom he had succeeded. At about the same time, Johnson had resigned his job as a driver and entered into petty trading in Kumasi, using the said £500 bequest and revenue from the Kona cocoa farms as capital for his petty trading. The greater portion of the disputed properties had been acquired from profits accruing partly from petty trading and partly from the said ancestral Kona cocoa farms, while in the case of the Wassa cocoa farms Johnson is said to have received additional physical and financial assistance from his niece, Afua Serwaah (the plaintiff s seventh witness) and her son Kwasi Mensah alias Tailor. These Wassa farms were cultivated as a joint venture by both Johnson and Afua Serwaah for their mutual enjoyment. Of the two Kumasi houses, the compound house No. O.I. 116 was alleged to have been built through the joint physical labour of members of his family in 1921 while Johnson was a paid driver, and he is alleged to have contributed “the least in labour”; while his mother is credited with financing the roofing and building materials. The second Kumasi house No. O.I. 8, described as an “inexpensive” burnt brick house, was stated to have been bought in June 1940, by Johnson from revenue accruing from the four Kona cocoa farms.
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In the premises, it was claimed that the properties devised by Johnson in his will were family properties over which he had no testamentary power of disposition.
The defence denied the claim in its entirety and counterclaimed that the disputed properties were the self-acquired properties of the late Johnson. From lowly beginnings as a paid tractor and lorry driver, Johnson eventually became self-employed, plying his own lorry between Kumasi and the North. By dint of hard work, he prospered in this transport business and later in the textile trade. For many years he owned a stall at the Kumasi market and allegedly carried on a very lucrative textile trade. He is said to have invested his business profits in the acquisition of all the houses at Kona and Kumasi, and cocoa farms at Kona, Wassa and Akwasiase devised in his will. It was categorically denied that any of these items of properties was family property. While admitting that Johnson succeeded his uncle Kojo Takyi, the statement of defence alleged that Kojo Takyi was penniless; he was in fact a pauper and a wanderlust who left nothing at his death.” It further alleged that all the disputed farms and houses were acquired by Johnson “at a time when he was already a man of some considerable means; and that he did not need any financial help from anybody. In any case, none of his immediate family members could have been of any help” (paragraph (16)). It was further alleged that when both Akua Fobi and Ama Dapaa (Johnson’s mother and sisters) died, they were possessed of no farms and they were succeeded, not by Johnson, but rather by Afua Serwaah, a daughter of Ama Dapaa. Paragraph (17) of the statement of defence stated that apart from the specific devises contained in his will, Johnson “gifted two farms to Afua Serwaa which she gladly acknowledged by paying the customary drink of aseda. These farms, situated at Oppon Valley are separate from the ones mentioned in the will.” The significance of this averment will become obvious later, when we discuss the issue of surprise raised by the appellant.
The learned trial judge correctly observed that the issue for trial was squarely whether or not the properties listed in the schedule were family or self-acquired properties of the late Johnson, and in his lengthy 24-page judgment reviewed exhaustively the evidence on both sides and made positive findings of fact on each item of disputed property. Apart from the three Kona farms (items (8), (9) and (10)) which he adjudged to be family properties, he, concluded that all the remaining items in the schedule were the testator’s self-acquired properties. It is from this conclusion that this appeal has been lodged, the appellant being aggrieved by the grant of the defendant’s counterclaim to all the disputed properties save the three aforementioned Kona farms.
The first ground of appeal argued by learned counsel for the plaintiff-appellant was that, “the court failed to direct itself properly on the evidence as a whole. Consequently it improperly rejected the evidence of the plaintiff-appellant on issues raised at the trial.”
In support of this ground of appeal, Mr. Totoe took us through the bulky record of proceedings and pointed out to us isolated pieces of
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evidence tending to confirm his client’s case. While admiring his industry, and resourcefulness, I would at the outset observe that this was pre-eminently a case fought within a narrow compass of facts; and that the resolution of the central fact in issue whether the disputed estate belonged to the family of the testator or was his self-acquired property, depended largely on the trial court’s assessment of both the credibility of the rival witnesses and the cogency of their evidence. In his well-considered judgment, the learned trial judge duly adverted his mind to the relevant pieces of evidence; examined in turn the rival claim and counterclaim in relation to the evidence adduced on each item of disputed property; and made a number of material findings of fact which on the whole was supported by the evidence on record. Speaking for myself, I do not find that the learned trial judge’s findings on material facts in issues and his assessment of the rival witnesses were either unreasonable or unsupported by the evidence.
In the second place, it deserves to be emphasised that the plaintiff s claim was based on the twin assertions that (a) the testator’s uncle (Kojo Takyi) and mother (Akua Fobi) were wealthy, or in the language of the statement of claim, they were “very able individuals” (see paragraph (3)); and that (b) the four Kona cocoa farms allegedly cultivated by the testator’s mother and sister provided the family capital, or as paragraph (5) of the statement of claim puts it, the said Kona farms “constituted the financial backbone of the family.” The plaintiff s contention was that the testator utilised both the £500 bequest he allegedly inherited from his said affluent uncle and the revenue accruing from the Kona farms of his ancestors in either acquiring or helping other members of his family to acquire all the disputed properties. In the premises, those properties became stamped with the character of family properties. Having thus predicated his claim upon these two hypotheses, it is obvious that in order to succeed in his action, the plaintiff ought to secure favourable findings of fact on both primary issues. Unfortunately for him, the evidence adduced by his side in support of those two fundamental matters was vague, scanty and unconvincing; and was, in my view, rightly rejected by the learned trial judge in favour of the more probable and inherently credible evidence adduced by knowledgeable witnesses called by the opposing side. For example, the learned trial judge’s reasons for accepting Yaa Ataa (the fifth defence witness), daughter of Kojo Takyi, as a witness of truth are, eminently sound. To quote him:
“The fifth defence witness as a daughter would naturally have desired to put her deceased father in the best light of respectability as to his means. Her evidence was marked with reverent restraint; but there was unaffected candour as she unfolded the painful truth that her dear father was for years afflicted with recurrent sores and foot swellings, and was indigent and died so.
I accept her evidence that Takyi was unable to pay the £25.00 costs of the Nsuta litigation, when Akua Fobi made demand on him per Ama Dapaah. I also accept the evidence that in his later days he relied on the benevolence of Johnson, even though he refused Johnson’s
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requests to be repatriated to Kona. I reject without the least doubt the assertion that Takyi left the sum of £500 or any sum which Johnson inherited.
Indeed the absence of a family delegation from Kona, with the usual attendant fanfare, to Prisiso for the burial and funeral of Takyi, drives me to the conclusion that Takyi was in no way such a wealthy and renowned goldsmith as the plaintiff would have us believe. I find Takyi died leaving nothing.”
On the positive side, the learned judge had no hesitation in coming to the conclusion that Johnson was a man of means who could, and did in fact, acquire the properties forming the subject-matter of this appeal. Typical of the many plausible reasons advanced by him in support of his main factual conclusion that Johnson was thrifty, hardworking and a successful trader who did acquire these properties from his own savings and by his physical exertions, is the following passage in his judgment where be accepted Salamatu Anyamesem (the fourth defence witness) as a witness of truth, and held that house No. O.I. 116, Kumasi (described in the statement of claim, paragraph (8), as “inexpensive”) was Johnson’s self-acquired property:
“As against this was the graphic evidence of the fourth defence witness, wife of Johnson at the time, of the thrift and labour that went to produce a partly completed house, into which Johnson moved, giving up the rented house. The fourth defence witness was divorced some years before the death of Johnson; and plainly she stands to gain or lose nothing by the outcome of this litigation. She gave her evidence without emotion or prejudice and was fair to the plaintiff in her candid answers under cross-examination.
It seems Johnson was thrifty, and I find that the salary of £5 from Swanzy Co. in those days, was to him not as insignificant a sum as it sounds now. I am satisfied that it was out of his wages, and by personal exertions that he built the swish house No. O.I. 116.
There is no evidence that other members of the family used it with him; either at the time when it was uncompleted or even when it was completed. The evidence is that he set aside a guest room which was used by the Konahene when occasion brought him to Kumasi.
Indeed the evidence of both the fourth defence witness and the defendant shows that Johnson used this house as his own; and the absence of any other members of the family with him, satisfies me that the members of the family in Johnson’s lifetime must have acknowledged the house as his self-acquired property. I hold that house to be self-acquired.”
It would be tedious and repetitive for us to quote in extenso from the judgment of the court below, in various passages of which the learned judge gave cogent reasons for holding that the other items of properties, save Nos. (8), (9) and (10) of the schedule, were self-acquired properties of Johnson. Suffice it to say that, having carefully read the said judgment and given due and sympathetic consideration to Mr. Totoe’s arguments on
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the facts and findings of the learned judge, I am satisfied that there was ample justification for the findings made. For my part, I find no merit in the appellant’s first ground of appeal.
In his next ground of appeal, Mr. Totoe contended that:
“the court erred in resolving issues of fact vital for the determination of the main issues in the case in favour of the defendant-respondent on the latter’s evidence which was not put to the plaintiff and his witnesses who testified on the issues. The judgment is therefore wrong and should be set aside.”
In considering whether the four Wassa cocoa farms (items (4)—(7) in the schedule) were self-acquired by Johnson or not, the learned judge duly adverted his mind to the four main planks on which the plaintiff rested his case, namely (a) that the lands were acquired at the request of, and for, Afua Serwaah (the plaintiff s seventh witness), Johnson’s niece; (b) that Afua Serwaah aided by the labourers and her own children physically cultivated the said farms; (c) that the money spent in the acquisition and cultivation of the Wassa farms was provided partly out of revenue accruing from the family’s Kona farms and partly by Johnson (see paragraph (12) of the statement of claim); and (d) that Johnson’s share of the capital expenditure was derived from accumulated profits earned on his uncle’s alleged bequest of £500 which had been invested by him in petty trading. The learned judge had no difficulty in dismissing the third and fourth planks. In his finding, Johnson’s uncle died a pauper and did not bequeath the said £500 to his nephew; neither did Johnson build up his fortune on the alleged inheritance. He found as a fact that Johnson paid the total purchase money of £55 for the Wassa land from his private resources; and that no portion of it was paid, as was alleged by the plaintiff s second witness, by his sister (Ama Dapaa), since she was an invalid and was herself dependent on the charity and financial support of Johnson.
In the course of deciding the two remaining planks of the plaintiff s case with respect to the Wassa farms, namely, whether the farms were acquired for his niece Afua Serwaah (the plaintiff s seventh witness) and her issue, and whether they contributed physically to their cultivation, the learned judge reviewed the two rival stories about the history of cultivation. He found as established the fact that the plaintiff s seventh witness accompanied Johnson on his initial trip to Wassa to acquire the land; that she was again in Johnson’s party when he returned to Domiabra (Wassa) later, to commence cultivation with the help of labourers engaged and paid by Johnson; that on this second occasion the plaintiff s seventh witness stayed and helped to cultivate the farms for two years, while Johnson stayed on in his own cottage at Domiabra on a permanent basis for eighteen years, returning to Kumasi occasionally for brief visits, and eventually dying on the farm. The learned judge found ample corroboration for these primary findings from the testimony of the defendant’s first and second witnesses, all of whom he found to be truthful and reliable. He found further corroboration from the evidence about gifts of
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two farms (not included in his devises in his will) made by Johnson to the plaintiff s seventh witness in consideration of the assistance she and her son Kwame Tailor had previously given him in the cultivation of the disputed Wassa farms. The detailed evidence about these gifts and their acceptance was given respectively by the second defence witness (Ama Bio) and the third defence witness (Nana Asare Kumanin) whom he found to be truthful. Even the plaintiff s seventh witness under cross-examination admitted knowledge of similar gifts of another Domiabra (Wassa) farm made by Johnson to his wife Boatemaa, in consideration of help received from her by Johnson, in the cultivation of the disputed farms. The learned judge consequently deduced from his primary finding that Johnson in his lifetime made gifts of some of his other farms to the plaintiff s seventh witness and others, as reward for help received in the cultivation of the disputed Wassa farms, the conclusion that, the latter were in fact his own self-acquired properties.
It is this conclusion which is now being attacked under the rule of evidence based on the authority of Browne v. Dunn (1894) 6. R. 67, H.L. adopted in Ayiwah v. Badu [1963] 1 G.L.R. 86 at p. 95, S.C. that it was incumbent on the defendant to have confronted the plaintiff and his witness by cross-examination on his allegation of gifts and aseda of these Wassa farms, in order to afford the latter an opportunity of explanation and that failure to put the defence story of alleged gifts to the plaintiff and his witnesses meant that the court should have ignored the evidence adduced by the defence which tended to impeach the credit of the plaintiff and his witnesses. This rule of cross-examination was formulated thus by Lord Herschell L.C. in the leading case of Browne v. Dunn (supra) as quoted in Cockle’s Cases and Statutes on Evidence (9th ed.) at pp. 257-258:
“It seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit . . . I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
In the same case, Lord Morris made important qualifications to the above general rule when he opined at pp. 258—259:
“But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box.”
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Other qualifications to the general rule are stated thus in Phipson on Evidence (10th ed.), para. 1542:
“Failure to cross-examine, however, will not always amount to an acceptance of the witness’s testimony, e.g. if the witness has had notice to the contrary beforehand or the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy, as where young children are called as witnesses for their parents in divorce cases, or when counsel indicates that he is merely abstaining for convenience, e.g. to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all.”
In this present case, the fact of gift relied oil by the defendant in his defence and counterclaim was duly pleaded in paragraph (17) of the statement of defence:
“After cultivating those farms referred to in the schedule, the late Johnson gifted two farms to Afua Serwaah which she gladly acknowledged by paying the customary drink of ‘aseda.’ Those farms, situated at Oppon Valley, are separate from the ones mentioned in the will.”
Under Order 19, r. 4 of, the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), it is only the material facts on which a party pleading relies for his claim or defence which shall be pleaded, but not the evidence by which they are to be proved. I am satisfied that this rule of pleading was duly complied with in this case; that the plaintiff was duly notified beforehand of the defendant’s intention to rely on the said gifts in support of his defence and counterclaim; and consequently that he was not taken by surprise at the hearing.
Furthermore, I am satisfied that there was no impropriety in the defendant’s conduct of the cross-examination of the plaintiff and his material witnesses; and that the plaintiff and his key witnesses were in turn cross-examined about the alleged gifts. For example, Afua Serwaah (the plaintiff s seventh witness) under cross-examination replied, “it is not correct late Johnson made a gift inter vivos of two farms to me.” Likewise the plaintiff s first witness (Kofi Anowuo) was cross-examined about the same issue; and he replied: “I do not know if Kwame Johnson gave two of his cocoa farms to his niece Afua Serwaah as a gift before his death,” and the plaintiff s second witness (Kofi Nsiah) also replied under cross-examination: “It is not correct that before old Johnson’s death he made a gift of two cocoa farms to Afua Serwaah.”
When it came to the turn of learned counsel for the plaintiff to cross-examine the defendant’s witnesses, he lost no opportunity of challenging some of them on this very issue of gifts. For example, Mr. Totoe asked, and received the following answers from the second defence witness (Ama Bio) under cross-examination: “I deny Johnson did not make a gift of my farm to the plaintiff s seventh witness; Johnson gave her two farms as gifts.” This line of cross-examination enabled Mr. Mmieh in the re-examination of this witness (the second defence witness) to elicit more detailed information about the gifts from her:
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“When late Johnson made the gift of farms to the plaintiff’s seventh witness this was made known to Konahene, the father of the plaintiff’s seventh witness; and in the presence of Konahene, the plaintiff’s seventh witness offered drink to late Johnson in acceptance. This offering of drink was at Kona.”
All this wealth of information about the gifts was already before the court prior to Konahene’s (the third defence witness’s) evidence which is alleged to have taken the plaintiff s side by surprise. I am afraid I cannot see how the above-quoted rule in Browne v. Dunn (supra), can be said to have been infringed, having regard to the pleadings, cross-examination and reexamination on both sides.
I now turn to the last ground of appeal canvassed by Mr. Totoe, namely, that since exhibit A was properly admitted, the court’s rejection of its contents in preference for the oral evidence given by the second defence witness on the issue was improper. In one obscure passage of his judgment the learned judge observed as follows:
“There was tendered exhibit A, purporting to be a letter written by Johnson from Kumasi despatching two labourers, Mamah and Kojo Dumah, alias Kojo Asante, to Afua Serwaah at Domiabra. Admissibility is a question of law, and must confess without proof of execution that letter was wrongly admitted. In any case I would attach no weight to it even if it was legally admissible; because the evidence I accept is that of the second defence witness, that Johnson set out to start work at Wassa when he had got these very two labourers; and in fact went with them from Kumasi including the plaintiff’s seventh witness, the second defence witness and faithful Aduanin.”
In my considered view, the learned judge erred in holding “I must confess without proof of execution that letter (exhibit A) was wrongly admitted.” On 6 May 1970, he had, after objection raised to the admissibility of the said letter, ruled in favour of its admissibility and given unobjectionable reasons for its reception in evidence. By overruling his earlier ruling suo motu in his judgment of 19 December 1973, he was acting in breach of Order 39 of the High Court (Civil Procedure) Rules, 1954, and acting without jurisdiction. The power of review under that Order, is exercisable by the judge only upon the application of an aggrieved person in the circumstances stated in rule 1 of the Order, and then if it is duly made within the time limits contained in rule 8: see Chahin v. Boateng [1963] 2 G.L.R. 174 at p. 177, S.C. and In re Lartey (Decd.); Lartey v. Affutu-Nartey [1972] 2 G.L.R. 488 at pp. 494—495, C.A.
That said, it is nevertheless valid to hold, as I do, that the wrongful exclusion of exhibit A from the learned judge’s consideration did not, in the event, detract from the correctness of the decision reached in this case, considering the pleadings and totality of available evidence. Exhibit A dated 26 November 1951, was a typewritten letter which was signed by the illiterate Johnson. It was sent to Afua Serwaah (the plaintiff s seventh witness); and it notified her that the writer would be sending two labourers,
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Kojo Asante and Mama within a short time to her (the plaintiff s seventh witness), and that she would be responsible for their “chop, sleeping place and cloths and other needs.” Rather inconsistently, the plaintiff in his statement of claim pleaded that “in the early years of the said venture (i.e. Wassa farms), money for paying labourers was provided partly out of the revenue from the existing cocoa farms at Kona and partly by late Johnson.” And in evidence, Afua Serwaah (the plaintiff s seventh witness) herself stated that when she accompanied Johnson to start work on the Wassa farms, Kojo Domah alias Kojo Asante was in their company. Afua Serwaah even admitted under cross-examination that “the labourers who went with us initially were Mama (a Moshe) and Kojo Asante.” Significantly both labourers are named in exhibit A. It would therefore appear probable that Johnson might have changed his mind after sending exhibit A to his niece, and that the very labourers mentioned in exhibit A actually accompanied both parties to Wassa for the commencement of cultivation of the farms.
Be that as it may, it was neither the plaintiff s pleading nor part of Afua Serwaah’s testimony that she paid the wages of the said labourers or else was responsible for their maintenance and support while at Wassa. The statement of claim, as has been pointed out, even conceded that Johnson was partially responsible for the labourers’ wages. The overwhelming evidence on record was to the effect that Johnson himself was personally in charge of the farming operations for almost eighteen years and stayed fairly continuously in his own cottage at Domiabra (Wassa). The learned judge’s findings that Johnson rewarded the plaintiff s seventh witness for help received in the cultivation of the disputed Wassa farms; that in his lifetime he treated and dealt with the disputed Wassa farms as his own; and that they were his self-acquired properties, were amply supported by the oral evidence.
In my view, exhibit A was rightly admitted in evidence and deserved to have been considered alongside the rest of the evidence for what it was worth. The learned judge seems to have confused admissibility with cogency. The balance of probabilities on the crucial question whether the Wassa farms were the self-acquired properties of Johnson, is in my view clearly in favour of the learned judge’s findings of fact on the oral evidence upholding the defendant-respondent’s counterclaim.
For the above reasons, I would dismiss this appeal with 0120 costs in favour of the defendant. Court below to carry out.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF FRANCOIS J.A.
I also agree.
DECISION
Appeal dismissed.
D. R. K. S.
