KWAKYE v. TUBA AND OTHERS [1961] GLR 720

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27TH NOVEMBER, 1961

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Lartey v. Mensah & Dedei & Ors. (1958) 3 W.A.L.R. 410

(2) Okoe v. Ankrah [1961] G.L.R. 109

(3) Attipoe & Anor. v. Bishara Shoucair & Anor., Land Court, Accra, May 4, 1958, unreported.

(4) Makata v. Ahorli (1956) 1 W.A.L.R. 169

(5) Hervie v. Tamakloe (1958) 3 W.A.L.R. 343

(6) Akyeampong v. Marshall, Divisional Court, Accra, November 11, 1959, unreported.

NATURE OF PROCEEDINGS

ACTION by customary successor for declaration of title to a farm left by a deceased relative.

COUNSEL

N. Olaga for T.A. Totoe for the plaintiff.

K. Sakyi for Osei Bonsu for the defendants.

[p.722] of [1961] GLR 720

JUDGMENT OF OLLENNU J.

The plaintiff instituted this action in his capacity as successor according to customary law of one Kwasi Kuma of Asokore, New Juabeng, and claimed (1) declaration of title to a piece of land with farm thereon situate at Bukruwa in Kwahu, (2) injunction, and (3) account of the proceeds of the said farm. The defendants are children of one Kwasi Panin, deceased, who was elder brother to the said Kwasi Kumah. Both the said Kwasi Panin and the said Kwasi Kumah were Muslims. The plaintiff pleaded that after he had entered upon his office as successor aforesaid, he voluntarily entered into agreement with the defendants whereby he placed them in charge of the farm, and was to give them annually, one-third of the proceeds of the said farm, further, that the defendants adhered to the terms of the said agreement for two years, but repudiated the same at the beginning of the third year, i.e. the beginning of 1960-61 cocoa season, denied his title to the said farm, drove away his, the plaintiff’s caretaker from the land, and wrongfully occupied the same, and have continued in such occupation.

The defence is that the plaintiff is not successor to the said Kwasi Kumah, and further that by Muslim law, Kwasi Kumah having died without issue the defendants, children of his brother, succeeded to his estate.

Kwasi Panin and Kwasi Kumah belong to the Asona clan or family of Asokore, New Juabeng. That clan or family has three groups: they are:- Adonten, Tuafo, and Akyeame groups; each group has a stool with an occupant and also has a head.

Four witnesses gave evidence for the plaintiff each of them proved himself to be a truthful witness.

The first of these, Kwasi Boadi, is an old man over 90 years old, his sight has become defective, but his memory is clear, his thinking logical, and he showed sound knowledge of the customary law relating to succession; he was most impressive. The witnesses for the defence, in contrast to those of the plaintiff, proved themselves to be most unreliable. The last of the defence witnesses, Kojo Apaw, head of the Akyeame group of the family after he had told so many deliberate lies was compelled to admit that he had given evidence in a local court in connection with the succession to the same Kwasi Kumah, that in the course of that evidence he had deposed that the whole family met and appointed the plaintiff successor to the said Kwasi Kumah, and that upon his said appointment the plaintiff paid an aseda of 24s. as fee to signify his acceptance. He said that that evidence he gave in the local court is true. In view of that admission of Opanin Kojo Apaw, head of the Akyeame branch of the Asona family, which admission corroborated the evidence of the plaintiff and his witnesses, which evidence I accept, I hold that the plaintiff was appointed successor to the said Kwasi Kumah and he took office immediately upon his said appointment. It was submitted by learned counsel for the defendants that the appointment of the plaintiff as successor to Kwasi Kumah is null and void on the following grounds:

(1) because by customary law only the members of the Akyeame group of the family should have carried out the appointment,

[p.723] of [1961] GLR 720 and the participation of the other two groups rendered it null and void;

(2) because by customary law Kwabena Kwarteng, as uterine brother of the deceased is the person who should have been appointed, he cannot be passed over even though he has not been seen for years and no one knows where he really is; and

(3) since Kwasi Kumah was a Muslim, Muslim law requires that only a uterine brother of his could succeed him.

On the first point, that is the constitution of meeting for the appointment of a successor, the evidence given of the custom by Opanin Boadi, the head of the Adonten group, and by virtue of his said office the head of the entire family, and the evidence led by the plaintiff and his other witnesses is in accordance with the custom as I know it. For the appointment of a successor, all the principal members of the branches of the family are entitled to attend the meeting, the meeting is presided over by the head of the whole family, sometimes even a chief or an elder in the town who is not a member of the family may be invited to preside. The only strict rule is that the successor should be chosen from the group who constitute the immediate family of the deceased, and it is only where no suitable candidate could be found in that group that a candidate may be chosen from another group, ie. from the wider family: see Lartey v. Mensah & Dedei & Ors.1(1) and Okoe v. Ankrah.2(2)

The submission that a uterine brother of the deceased is the sole person who could be appointed successor to Kwasi Kumah is contrary to all principles of the customary law of succession. The principle is that no person has a vested right to be appointed successor to anybody. The family may appoint any suitable person who comes within the group of persons from among whom a successor may be appointed. The principle is the same as that of the appointment of a head of the family. It is set out in the case of Attipoe & Anor v. Bishara Shoucair & Anor.3(3) that “In native custom all succession is a question of election by relatives not of inherent right; the only rigid rule is that the election shall be constitutionally carried out at a proper meeting of the relatives”. And in Makata v. Ahorli & Ors.4(4) it is stated in the headnote that “(1) there are no rigid rules of intestate succession in Gold Coast native custom but the elders of a family, of which a deceased was a member may appoint a successor at their discretion, to stand in the shoes of the deceased with respect to the family property that had been in the possession of the deceased”. Further, in the headnotes to Hervie v. Tamakloe5(5) we find the following: “(1) the appointment of a person as head of a family is neither automatic nor does it devolve on any person as a matter of right. As with the appointment of a successor to a deceased person it is made by the elders of the family either formally and expressly or by implication, as where they accept and support acts [p.724] of [1961] GLR 720 of headship performed by one not expressly elected as head. In selecting an appointee the elders are concerned primarily with choosing the person most fitted for the post; they therefore may go outside the natural line of descent if they think fit, i.e., in patrilineal areas a head may be selected from the maternal line if no suitable candidate is available in the male line; likewise an appointment can be made from the paternal line in a matrilineal area”. And now to the third submission that, because Kwasi Kumah was a Muslim, therefore succession to his estate must be governed by Islamic law. It must be made quite clear that succession in Ghana is not based upon a person’s religion. It is regulated by the customary law unless otherwise provided by statute: Akyeampong v. Marshall6(6). There are two statutes which vary customary law in that regard. These are section 48 of the Marriage Ordinance7(7), and, for Mohammedans, section 10 of the

Marriage of Mohammedans Ordinance8(8). The said section 10 of Cap. 129 reads as follows: – “On the death of a Mohammedan whose marriage has been duly registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law”. That is to say, it is only a Muslim who married according to Mohammedan law, and had his said marriage registered under the Ordinance in the manner provided by the Ordinance whose succession shall be regulated by Mohammedan law. In the eyes of our law, a marriage by a Mohammedan according to Mohammedan law is at its very best a marriage by customary law and does not affect succession to his estate, unless the said marriage is registered under the Ordinance. Therefore if a Mohammedan died not having married, or if married not having had his said marriage registered under the Marriage of Mohammedans Ordinance, the only law which can regulate succession to his estate is his personal law, i.e. the customary law of the tribe to which he belonged. There is no evidence before the court to prove that Kwasi Kumah married in accordance with Mohammedan law, in the manner laid down by the Ordinance and if he did, that the said marriage was registered under the Ordinance. Therefore the succession to Kwasi Kumah’s estate is regulated by customary law. I hold therefore that the appointment of the plaintiff as successor to Kwasi Kumah is valid and that he, the plaintiff, is the proper person to have charge and control of all properties, real and personal, of which Kwasi Kumah died possessed. The defendants have no interest whatsoever in their father Kwasi Panin’s estate except that they are entitled to maintenance, and, subject to good behaviour, to live in the family house; they have none whatsoever in the estate of their uncle Kwasi Kumah. It is only through the generosity of the plaintiff that they had some share in the proceeds of the farm in dispute. Now that they have repudiated the agreement upon which they became gratuitously entitled to a third share of the proceeds of the farm, and have denied the title of their benefactor, they have by their said conduct forfeited the generous grant which the plaintiff gratuitously made to them. [p.725] of [1961] GLR 720

There will be judgment for the plaintiff against the defendants jointly and severally for:

(1) declaration of his title as successor to Kwasi Kumah to the land with the farms thereon, the subject-matter of this suit;

(2) an order for injunction restraining the defendants and each of the defendants, their agents and servants from entering the said land and farms for any purposes whatsoever, or in any manner interfering with the plaintiff in his ownership, possession and occupation of the said land and farms; and

(3) an order upon the defendants to account to the plaintiff for all proceeds and mesne profits from the said land and farms since the beginning of 1960-61 cocoa season up to date, and to pay to the plaintiff the net balance due.

The registrar of this court is appointed to take the said accounts. The plaintiff will have his costs fixed at 75 guineas inclusive.

DECISION

Judgment for the plaintiff.

THE STATE v. SOWAH AND ESSEL

[1961] GLR 743

Division: IN THE SUPREME COURT

Date: 1ST DECEMBER, 1961

Before: VAN LARE, SARKODEE-ADOO AND CRABBE, JJ.S.C.

Criminal law and procedure—Burden of proof—Whether guilt can be presumed merely from facts proved by prosecution.

HEADNOTES

At the trial of the accused who both pleaded not guilty the learned trial judge said:

“I am satisfied beyond reasonable doubt that the accused entered the room of P.W. 1 by breaking open the lock and stole the items specified in the second count despite the fact that none of these articles were found.

I was so satisfied before the accused gave evidence.”

Both accused were convicted and subsequently appealed.

Held:

(1) to say that before the jury can consider the case for the defence, they must be satisfied that the prosecution has affirmatively proved its case means no more than to emphasise the general rule laid down by the maxim ei qui affirmat non ei qui negat incumbit probatio and the words “satisfied” and “affirmatively” have no reference to proof beyond reasonable doubt which stage can only be reached after considering the case for the defence. R. v. Ojojo [1959] G.L.R. 207 at p. 213 explained; [p.744] of [1961] GLR 743

(2) in the instant case the defence put forward by the two accused left the judge with three possible positions, namely (i) if he accepted their explanations he must acquit them; (ii) short of accepting their explanations if he was left in doubt he must also acquit them; and (iii) he must be satisfied of their guilt of the crimes alleged against them only on consideration of the whole evidence adduced in the case. R. v. Murtagh and Kennedy (1955) 39 Cr. App. R. 72 applied;

(3) the expression “I was so satisfied before the accused gave evidence” gives the impression that the learned trial judge prejudged the guilt of the accused before he heard them. It is wrong to presume the guilt of the accused merely from the facts proved by the prosecution. Woolmington v. D.P.P. [1935] A.C. 462, H.L. applied. CASES REFERRED TO

(1) R. v. McKenna [1960] 1 Q.B. 411

(2) Woolmington v. D.P.P. [1935] A.G. 462, H.L.

(3) Davis v. U.S. 160 U.S. 469

(4) R. v. Ojojo [1959] G.L.R. 207

(5) R. v. Murtagh and Kennedy (1955) 39 Cr. App. R. 72.

NATURE OF PROCEEDINGS

APPEALS against convictions for unlawful entry and stealing by Simpson J. sitting with the aid of assessors at the Kumasi Criminal Sessions on the 5th May, 1961.

COUNSEL

Appellants in person.

K. Dua Sakyi for the respondent (the State).

JUDGMENT OF CRABBE J.S.C.

Crabbe, J.S.C. delivered the judgment of the court. The appellants were jointly charged on two counts, one of unlawful entry and the second of stealing, and were convicted by Simpson, J. The simple facts which were proved in support of the charges were that the second appellant and the complainant (P.W.2) lived in one room in the house of one Osei Kwabena at Asafo in Kumasi. On the day of the alleged unlawful entry and stealing the complainant said that he left home for business at about 7 a.m. after having locked his door and taken his key with him. Later the same day the two appellants were seen in the room of the complainant by the house-owner, Osei Kwabena, who thinking that the second appellant had obtained the key from the complainant at the latter’s place of business asked no questions and went and sat by a friend outside the house. Soon the two appellants came out of the house and the first appellant was seen carrying two handbags on his head. The behaviour of the appellants aroused the suspicion of the house-owner who then went into the house and found that the latch on the complainant’s door had been broken. He sent to the market for the complainant who came to the house, and it was thereupon discovered that the articles enumerated in count two had been stolen.

It must be said at the outset in fairness to the learned trial judge that there is some evidence, which, if believed, would justify the convictions of the appellants, but we may say in the words of Cassels, J. in R. v. McKenna1(9) that, “Plain though many juries may have thought this case, the principle at stake is more important than the case itself”. [p.745] of [1961] GLR 743

The judgment in this case was brief and after a similarly brief review of the evidence for the prosecution the learned trial judge said as follows:

“I am satisfied beyond reasonable doubt that the accused entered the room of P.W. 1 by breaking open the lock and stole the items specified in the second count despite the fact that none of these articles were found”.

The passage is immediately followed by the following sentence: “I was so satisfied before the accused gave evidence”. In our view the above passage and the sentence when considered in their contexts mean no more than that the learned trial judge became fully convinced of the guilt of the appellants solely on the evidence for the prosecution and before each appellant opened his defence to the charges. This we think put the onus on the appellants to prove their innocence.

With very great respect to the learned trial judge we think that these expressions in his judgment constitute such a serious misdirection as completely destroys the golden thread which according to Viscount Sankey, L.C., in the Woolmington v. D.P.P.2(10), runs through the web of the English criminal law. The burden of proof in a criminal trial is not fully discharged until the guilt of the accused is made to appear from the evidence in the case.

At the trial each appellant pleaded not guilty to both counts in the indictment. Such a plea normally puts in issue every fact essential to constitute the crime charged and, “Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from the evidence” per Harlan J. in Davis v. U.S.3(11)

In a criminal case, except in the instance of sanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which, therefore, calls for explanation by the accused.

“‘Presumptions of guilt’ and ‘prima facie’ cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offence with which he is charged”.

See Woolmington v. D.P.P.4(12)

[p.746] of [1961] GLR 743

In the recent case of R v. Ojojo5(13) it was said:

“It is a well established principle that before a jury can consider the case for the defence, whether they believe it or not, they must be satisfied that the prosecution has affirmatively proved its case. In our view it is only when the jury is satisfied that the prosecution has proved its case that it can turn to the defence, and consider whether the defence answers the case proved by the prosecution”. We think that this passage taken out of its context might well have led the learned trial judge into thinking that at the close of the case for the prosecution the accused is to be called upon if it appears from the evidence at that stage that the prosecution has established the guilt of the accused. The above quotation is, however, followed by the following passage:

“The proper direction is that if the defence answers the case for the prosecution, then the jury should find the prisoner not guilty; or if the defence raises a reasonable doubt in the mind of the jury on the case for the prosecution, the prisoner is entitled to acquittal, because there is a doubt. The jury must be told that they can return a verdict of guilty only when they are so satisfied on the consideration of the case as a whole”.

R. v. Ojojo (supra) is a case in which the trial judge had allowed the case to go to the jury even though he himself had entertained a doubt on the case for the prosecution, and the Court of Appeal before laying down the principle contained in the foregoing passage had asked the following question: “If at the close of the case for the prosecution there was a doubt as to whether or not the appellant had committed any offence of which he could lawfully be convicted on the information upon which he was being tried, why was he called upon to enter a defence?”. In our view when the court in that case said that the jury “must be satisfied that the prosecution has affirmatively proved its case” it meant no more than to emphasise the general rule adumbrated in the maxim ei qui affirmat non ei qui negat incumbit probatio and that the words “satisfied” and “affirmatively” have no reference to proof beyond reasonable doubt which stage can only be reached after considering the case for the defence. Each appellant in this case gave evidence. The defence of the first appellant was an alibi, and the second appellant whilst admitting that he went to the house in question denied categorically that he entered the room of the complainant and committed the two offences with which he was charged. In the circumstances it was essential for the learned trial judge in weighing the evidence to direct his mind to the three possible positions in which he might find himself, bearing in mind throughout that it was for the prosecution to displace the presumption of innocence in favour of the appellants, that is to say: (1) if he accepted the explanations of the appellants he must acquit them; (2) short of accepting that explanation, if it left him in doubt, he must acquit them; (3) he must be satisfied of the guilt of the appellants of the crimes alleged against them only on consideration of the whole evidence adduced in the case. (See R. v. Murtagh and Kennedy6(14)). [p.747] of [1961] GLR 743

It does not appear from the judgment that the learned trial judge considered these points, and the expression “I was so satisfied before the accused gave evidence” in the judgment leaves us with the impression that the learned trial judge prejudged the guilt of the appellants before he heard them. We think that the learned trial judge erred because evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused himself has given evidence. In Woolmington v. D.P.P. (supra) Viscount Sankey, L.C. said: “If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt.

Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence”.7(15) For the above reasons we allow the appeal of each appellant, quash the convictions, set aside the sentences and order an acquittal and discharge of each appellant.

DECISION

Appeals allowed.

Appellants acquitted and discharged.