MALM vs. LUTTERODT [1963] 1 GLR 1

CASES REFERRED TO

(1) Kodilinye v. Odu (1935) 2 W.A.C.A. 336

(2) Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24, P.C.

(3) Payin II v. Anquandah (1947) 12 W.A.C.A. 284 (4) Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C.

[p.3] of [1963] 1 GLR 1 (5) Agbloe II v. Sappor (1947) 12 W.A.C.A. 187 (6) Ohimen v. Adjei (1957) 2 W.A.L.R. 275 (7) Insilhea v. Simons (1899) Sar.F.L.R. 104 (8) Dickinson v. Coward (1818) 1 B. & A. 677; 106 E.R. 249 (9) Re Tiedemann [1899] 2 Q.B. 66; 68 L.J.Q.B. 852; 81 L.T 191 (10) Ward v. Ward (1852) 7 Ex. 838; 155 E.R. 1189 (11) R. v. Chorley (1848) 12 Q.B. 515; 116 E.R. 960; 3 Cox C.C. 262 (12) Baillie v. Offiong (1923) 5 N.L.R. 28 (13) Young v. Star Omnibus Co., Ltd. (1902) 86 L.T. 41

(14) Oloto v. Williams (1944) 10 W.A.C.A. 23

(15) Robinson v. Duleep Singh (1879) 11 Ch.D. 798; 39 L.T 313, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Adumua-Bossman J. (as he then was) delivered in the High Court, Accra, on the 17th May, 1961 (unreported) wherein he gave judgment for the plaintiff, Roger Lutterodt, in an action for declaration of title to land, damages and perpetual injunction brought against Cornelius and Sophia Malm. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

J. Quashie in for the defendants-appellants.

E. N. Moore for the plaintiff-respondent.

JUDGMENT OF CRABBE J.S.C.

This is an appeal from a judgment of Adumua-Bossman J. (as he then was) given at Accra on the 17th May, 1961, when he entered judgment decreeing ownership or title of the plot of land in dispute to the plaintiff, and also made an order of perpetual injunction and £G20 damages for trespass against the defendants. The plaintiff’s main claim was for a title to a certain piece or parcel of land, the description and boundaries of which were set out in the writ of summons as follows: “all that piece or parcel of land situate lying and being at Kpehe, Accra, and bounded on the north by the property of Lutterodt family, on the south by a proposed road, on the west by the property of Mr. Malm and on the east by Lutterodt family land.” This plot in dispute is shown delineated in pink or red colour in the plan of the area prepared by a surveyor for the trial of the action. This was admitted and marked exhibit Z.

The facts upon which the plaintiff based his action may be briefly stated. The land, the subject matter of the dispute was a portion of the Lutterodt family land at Kpehe, Accra. It was sold and conveyed to the plaintiff under an indenture of conveyance dated the 8th May, 1953, made between Eric Parchardt Lutterodt, as head of the Lutterodt family at the time, with the concurrence of the other principal elders of the family, whose names appear in the indenture, as vendor of the one part, and the plaintiff as purchaser of the other. Immediately after the sale the plaintiff took possession of this land by causing pillars to be fixed thereon to mark the boundaries. He also had the land cleared whenever it was overgrown with weeds. In 1960, the plaintiff permitted one lady who lived in a house near the plot to use it for planting shrubs and

[p.4] of [1963] 1 GLR 1 flowers. Some time in June of the same year, as this lady was so using the land, the first defendant led a number of persons to the land, removed the plaintiff’s pillars, and started to fix his own new pillars on the said land. On hearing a report of what was happening on the land, the plaintiff rushed to the scene where he demanded an explanation from the first defendant for his alleged encroachment on the land. The first defendant claimed that the land belonged to his late father Peter Malm and that this had devolved upon him and his sister (the second defendant) as the surviving children of their late father who died intestate.

It was contended by the plaintiff throughout the trial that the particular land in dispute was never at any time sold or intended to be sold to the defendants’ father by the Lutterodt family. The plaintiff said, however, that some time in 1948 the late Peter Malm applied to the head of the Lutterodt family to purchase a plot of the family land at Kpehe, Accra, but he was told that his application would be considered after the determination of the litigation which was then in progress concerning the family land. According to the plaintiff, a plot of land was nevertheless ear-marked for him, and his name was entered in books kept by the family for the purposes of allocation. When, therefore, in 1956, after the litigation the late Peter Malm was unable to pay the purchase price of £G300 for the land so ear-marked for him, the Lutterodt family sold this land to one Ohene Fianko.

It would appear, therefore, from the evidence led in support of the plaintiff’s case that the land which was sold to Ohene Fianko was quite different from the land which the family had earlier conveyed to the plaintiff by the indenture dated the 8th May, 1953.

The validity of the conveyance to the plaintiff was not challenged by the defendants, but the crucial question was whether on the whole evidence the obligation which the plaintiff assumed of proving his title had been discharged. The learned trial judge took the view that the plaintiff’s case “was substantially unchallenged,” and then said:

“It appears clearly therefore—and the same had to be and was conceded by counsel for the defendants—that the defendants assumed the onus of establishing a purchase earlier in time (i.e. in 1943) as opposed to the plaintiff’s undeniable purchase in 1953 from the same Lutterodt family of the same plot, and the main question in this action is whether the admitted onus on the defendants has been adequately and/or sufficiently enough discharged.”

In this appeal five grounds were argued, and for the purpose of convenience I shall deal with the fifth ground of appeal which is in these terms: “That the learned trial judge misdirected himself on the law in holding that there was an onus on the defendants-appellants to prove title.”

The courts of this country have repeated ad nauseum, and it is now common learning, that in an action for declaration of title, the onus of proof is upon the plaintiff to show clear title. The principles were stated

[p.5] of [1963] 1 GLR 1 clearly and forcefully by Webber C.J. in Kodilinye v. Odu,1 in these words:

“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.”

When the law fixes upon a party the burden of proving a certain fact in issue as a condition of giving him judgment, that burden never shifts under any circumstances whatsoever and must be discharged. To discharge this legal burden, the plaintiff must prove relevant facts and rely on any presumptions that arise. The plaintiff must establish his title to the disputed land by a preponderance of evidence. If the court at the close of the case after weighing the evidence for the plaintiff and the defendant, finds it evenly balanced, or that the balance is in favour of the defendant, the plaintiff has failed to discharge the legal burden and judgment will be against him.

The standard of proof which the plaintiff’s evidence must reach in order to succeed in an action for declaration of title was adverted to by the Judicial Committee of the Privy Council in the Kponuglo v. Kodadja.2

In that case it was said:

“The respondent’s claim being one of damages for trespass, and for an injunction against further trespass, it follows that he has put his title in issue. His claim postulates, in their Lordships’ opinion, that he is either the owner of Bunya land, or has had, prior to the trespass complained of, exclusive possession of it. The principal question to be decided in the appeal would accordingly seem to be—Has the respondent discharged the onus which rests upon him of demonstrating beyond reasonable doubt that the title to the disputed land is in him?”

With great respect to the learned trial judge I think he erred when he said that there was an onus on the defendants. The burden of proof never shifted as a matter of law in such a case. All that could be said to have shifted, when the plaintiff established a prima facie case, was the evidential burden of adducing evidence at various stages of the trial. The defendant in an action for declaration of title assumes a legal burden of proof only when he counter-claims for a declaration of title in his favour. That was not so in this case.

Having erroneously put an onus on defendants, though they had not counter-claimed, the learned trial judge held, nevertheless, that the evidence of the defendants established “decisively that the plot which the first

[p.6] of [1963] 1 GLR 1 defendant’s father for a time occupied in that he put up an uncompleted swish building on it, is the plot now in dispute.” But he said the defendants had another legal hurdle ahead of them, that “of discharging the onus on them of proving title.” References by the learned trial judge to the case Payin II v. Anquandah3 and that of Kuma v. Kuma,4 leave me in no doubt that he must have regarded the rights of the late Peter Malm as equivalent to those of a licensee or customary tenant under conditions known to local custom. If there was evidence that the late Peter Malm built his house on the Lutterodt family land with the permission of the family then when the house fell into rain the land would revert to the family.

In Agbloe II v. Sappor,5 Harragin C.J. said:

“. . .where a member of the family or, for that matter, any person with the permission of the family erects a building on family land and it falls into ruins the land reverts to the family subject to certain equities into which it is not necessary to go in this case. Such reversion is based on native law and common sense, as there can be no logical reason why a man should retain the right to the use and occupation of property which has become a ruin. . . .”

But the case for the defendants was that their late father bought the land in dispute outright from the Lutterodt family and, therefore, the land was in his occupation as owner. The plaintiff did not contend that there was a grant of an occupational right to the late Peter Malm, and therefore in my view there could be no reversion in the Lutterodt’s family. If, therefore, there was evidence which proved, or from which could be inferred, an unconditional alienation of the family land to the late Peter Malm in which the family acquiesced, then the family must be deemed to have divested itself of all its right and interest in that land and retained nothing which it could convey to the plaintiff. Even if the defendants’ evidence of the sale was rejected it would only mean that the late Peter Malm unlawfully entered the land and exercised acts inconsistent with the possession of the Lutterodt family. “The correct position” said Ollennu J. in Ohimen v. Adjei,6 “is that the true owner loses his right to assert his title and to recover possession of the land; not that the stranger acquires title to it, though in actual fact he does thereby acquire title to the land.” I quote this with approval.

In these circumstances the onus was rather on the plaintiff to establish that the unlawful or adverse occupation by the late Peter Malm was not known to the Lutterodt family. That was in fact what the plaintiff tried to do, but he failed.

The defendants’ case was that their late father Peter Malm bought the land in dispute from the Lutterodt family in 1943. He immediately went into possession and commenced the construction of a swish building after obtaining permission from the Director of Public Works and in

[p.7] of [1963] 1 GLR 1 accordance with approved plans which were tendered in evidence and marked exhibits 3(a) and 3(b). The demarcation of the land was made by the defendants’ witness, John Benjamin Kojo Solomon who described the circumstances of the sale in his evidence as follows:

“A. About eighteen years ago a case was going on and the family was in need of money—At the time Mr.

Malm approached me and told me he wanted a piece of land—so I saw Mr. Quashie Solomon my uncle and he asked me to bring Malm along—so I took Malm to him and Quashie Solomon promised to give Malm a plot of land—The dimension was 100 ft. x 100 ft.—so Quashie Solomon and Mr.

Malm and I went and inspected and it was bargained at £33—Actually the price should have been more but the man Malm was blind, so my uncle reduced for him. The second consideration was that at the time there was litigation going on about the land between Korley, Atukpais and Lutterodts all of whom were under the Gbese stool—and as Mr. Malm was also a Gbese man that is why my uncle gave it to him for £33—I wrote the receipt and my uncle signed.

Shown receipt by counsel, Dr. Johnson.

Q. Is that the receipt?

Witness continues:

Yes (exhibit No. 1). My uncle Quashie told me he was going to see Eric and Conrad—I unfortunately did not accompany him. About 2 to 3 days after my uncle took me with him to our lawyer, Mr.

Lokko, to whom the money was paid—After leaving the lawyer, we separated, I going home and he proceeding to report to the Lutterodts [i.e. Eric and Conrad] that he has paid the lawyer. All that time the litigation was going on. Shortly after that I was transferred from Accra to Cape Coast.

Continues to counsel:

Q. Do you know anything about the demarcation of the plot?

A. I went to demarcate it with my uncle Mr. Quashie Solomon.

Q. Did you after see anything erected on the land?

A. I’ve told you I was sent away from Accra so I did not see anything raised up or erected on the land.

Q. Apart from this—have you demarcated other plots for the Lutterodt family?

A. Yes many lands.

Q. Do you know Kwao Solomon? Has he to your knowledge done demarcation work for the family?

A. Yes—but the demarcation of Malm’s plot was by me and Quashie Solomon, my uncle, told me he was going to tell him about the Malm sales.”

It was admitted by the plaintiff that Quashie Solomon, Eric Lutterodt, and Conrad Lutterodt were together responsible for the Lutterodt family lands, and there is evidence that Quashie Solomon was one of the principal representatives of the family in the Kokomlemle case.

[p.8] of [1963] 1 GLR 1

The receipt which Quashie Solomon gave to Peter Malm in acknowledgement of the amount paid in connection with sale was in these terms: “Received from M. P. C. Malm the sum of £33.0.0 (Thirty-three pounds) being cost of land bought from the Lutterodt family at Kpehe. Measuring 100 ft. x 100 ft. (Sgd.) J. Q. Solomon.”

The law is quite clear that there can be no valid transfer of family property except by the head of the family acting with the consent and concurrence of the principal elders. In this case there is no direct evidence that the head of the Lutterodt family and the principal members, except Quashie Solomon; knew about this sale of the family land, and I think the true legal position is that stated by Francis Smith J. in Insilhea v. Simons.7:

“It is a settled rule of native law that family property cannot be sold except by the head of the family with the concurrence of the elder members of the family, or if so sold to the knowledge of any member of the family time will operate as a bar to the recovery of the land. The Appeal Court in Bayaidie v. Mensah decided, that the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they acted timeously, and upon the revision of the contract, the purchaser can be fully restored to the position he stood before the sale.

The principle here enunciated must depend for its application on the circumstances of each case. The time from which acquiescence in the sale by the members of the family would be presumed, must be from the time of their knowledge of the sale, to be ascertained by direct evidence or facts from which such knowledge may be inferred, because it is obvious that no one can acquiesce in a transaction of which he is ignorant.”

Applying this principle, as it were, to the present case the learned trial judge made the following observations:

“What then emerges from the evidence reproduced supra concerning the alleged transaction for the sale and transfer of the plot? Surely it is this, namely that the bargaining concerning the said purported sale and/or purchase—which bargaining necessarily was the crucial and most vital part of the transaction—was conducted by Quashie Solomon alone with Malm without consultation with, or any reference to Eric, the head and the other elders of the family. Even then the irregularity could and might have been cured by the arrangement or bargain being reported to the head and other elders for their adoption and/or ratification.”

It seems to me on a reading of the receipt that Quashie Solomon purported to act as an agent of the Lutterodt family in the transaction for the sale and the transfer of the land to Peter Malm. The law does not presume fraud, the legal maxim being fraus est odiosa et non praesumenda; and, therefore, a man who assumes to sell another person’s property really professes to be acting for the true owner.

The most important question therefore which this court has to determine is whether the sale if unknown to the Lutterodt family was subsequently adopted or ratified by the head and elders of the family.

[p.9] of [1963] 1 GLR 1

To constitute a binding adoption or ratification of acts done without previous authority, (1) the acts must have been done for, and in the name of, the supposed principal; and (2) full knowledge of them, and unequivocal adoption after knowledge, must be proved; or else, the circumstances must warrant the clear inference that the principal was adopting the acts of his supposed agent whatever their nature and culpability. Ratification must be evidenced either by clear adoptive acts or by acquiescence.

In this case the learned trial judge found as a fact that the defendants’ father occupied this land in dispute for a considerable time after he had bought it in 1943, by putting up a part-built and uncompleted house. Members of the Lutterodt family, including the plaintiff and his witnesses had, as far back as 1942, been frequenting their family land at Kpehe, and, no doubt, they could not have failed to notice this unauthorised building, as they alleged, on their land. Even though the plaintiff and his family maintained that it was in 1948 that the defendants’ father started negotiations, yet the plaintiff admitted that at that time the defendants’ father already had a swish fence on the land which he claimed that Quashie Solomon had sold to him. The significance of this admission emerges quite clearly when it is considered along with the following evidence given under cross-examination by Reginald Halm-Lutterodt:

“Q. The area was in fact the subject of extensive litigation by 1942?

A. Yes—that was so.

Q. Your family, including you, yourself, were all very vigilant lest anyone interfered with your family’s area?

A. Yes—that’s so.

Q. How often do you suggest you visited the area?

A. I personally visited it once a week.

Q. So in about 1943-1944, you say you would have visited the land once a week?

A. Yes.

Q. If you saw someone to whom you had given no authority what did you do?

A. Question him and eventually remove him.

Q. But if you had given him authority you’d let him stay?

A. Yes.”

The truth of the matter is that the late Peter Malm remained in possession of the disputed plot for many years without any disturbance by the Lutterodt family.

The third witness for the defendants also gave evidence which to my mind demonstrates beyond doubt that the Lutterodt family knew that the late Peter Malm was exercising rights of ownership over the disputed area. He said that when he bought his own land from the Lutterodt family he was told by Conrad Lutterodt that he formed boundary with

[p.10] of [1963] 1 GLR 1 the defendants’ father. With regard to Peter Malm’s building, the witness’s evidence is as follows:

“Q. Is it correct that at the time you went on this land the building was about three feet high?

A. No, it had been erected to window level—remaining two walls more for the roof to be put on.

Q. Do you know that just before you had your document Conrad caused the wall to be broken?

A. No”

It is to be noted that Conrad Lutterodt’s evidence that he caused the swish building to be demolished is not supported by anyone. It is difficult to believe that notwithstanding their vigilance and frequent visits to the land, the head and the other principal members of the Lutterodt family did not see the overt acts of ownership by the late Peter Malm immediately he took possession of the land in 1943.

“While a ratification must be clear and must bear distinct reference to the facts of the particular case, it need not necessarily be proved by positive acts of adoption. In certain cases it is sufficient evidence of ratification that the intended principal, having all material facts brought to his knowledge and knowing that he is being regarded as having accepted the position of principal, takes no steps to disown that character within reasonable time, or adopts no means of asserting his rights at the earliest period possible.”

See Halsbury’s Laws of England (3rd. ed.), Vol. 1, p. 179, para. 420. In Insilhea v. Simons, Francis Smith J. said8:

“There is, however, no evidence that plaintiff’s family, besides Akoom, knew of the sale for many years after the sale had taken place, and therefore Abbakan sold secretly; at the same time as it is unlikely that the owner of land would, for many years, not discover that his land is being cultivated and built upon, the presumption would be in favour of his knowledge and acquiescence.”

In the present case such presumption in favour of the defendants was never displaced. Apart from the oral evidence there is in my opinion abundant documentary evidence from which it can be justifiably inferred that the Lutterodt family had full knowledge of the sale by Quashie Solomon to the late Peter Malm and that they adopted or ratified the transaction. In the plaintiff’s own writ of summons he stated that his land which was in dispute was bounded “on the west by the property of Mr. Malm.” This statement of fact is stated in his indenture of conveyance dated the 8th May, 1953, made between Eric Parchardt Lutterodt, head of the family, with the concurrence of the principal members of that family

[p.11] of [1963] 1 GLR 1 a piece of the family’s land was conveyed to Thomas Okine Quaye. In this indenture the western boundary of the land was described as “the property of Adjah Mensah.” This Adjah Mensah was shown by the evidence to be the same person as Peter Malm.

These statements in the two documents that there was the property of Malm on the west of the lands conveyed, were, as the learned trial judge rightly pointed out, not conclusive against the plaintiff and his family, but wore evidence of the facts so stated. It was open to the plaintiff, therefore, to prove the circumstances or to show that they were due to an erroneous conception of the law, or to ignorance of the real facts, or to other circumstances which sufficiently explain them. The only explanation that was offered was that in 1948, the defendants’ father negotiated for the sale to him of the land described as “property belonging to Malm” or “property of Adjah Mensah.” No money was paid to the family but land was earmarked for the defendants’ father and his name was entered in the family books. It was not contended by the family that they acted under a misapprehension of the law; neither did the family contend that these statements were made in ignorance of the facts. In these circumstances I confess I am unable to understand how such astute litigants as the Lutterodt family came to describe Peter Malm as the owner of family land when they knew that Peter Malm had not paid them a penny for such land. This was the land on which both the plaintiff and Conrad Lutterodt said the defendants’ father had built a swish fence which Conrad destroyed. This act of Conrad in 1948, if true, is completely irreconcilable with the statement he made in 1953, in the plaintiff’s indenture to the effect that the land he conveyed to the plaintiff was bounded “on or towards the west by property belonging to Mr. Malm and measuring on that side one hundred feet more or less.” Another look at J. Q. Solomon’s receipt for the £33 shows that the measurements of each side of the land he sold to Peter Malm was one hundred feet. Moreover, in the plan attached to Okai Kwame Quaye’s indenture of 1949, Peter Malm’s building has been actually plotted on it.

In my view all these are facts from which one may reasonably infer that the Lutterodt family recognised the defendants’ father as owner of a piece of the family’s lands at Kpehe. “Any recognition of a person standing in a given relation to others is prima facie evidence against the person making such recognition that the relation exists”: per Lord Ellenborough in Dickinson v. Coward9.

I also think that the unequivocal findings by the learned trial judge, (1) that the plot which the defendants’ father for a time occupied is the same plot now in dispute, (2) that this plot was sold to him by Kojo Solomon and (3) that the defendants’ father occupied this plot for a considerable length of time, show that the plaintiff’s story about the 1948 negotiation is palpably false and completely unacceptable. These findings, moreover, raise a presumption of knowledge and acquiescence in favour of the defendants.

[p.12] of [1963] 1 GLR 1

It was urged by counsel for the respondent that even though it would appear on the face of the receipt (exhibit 1) that J. Q. Solomon was acting for the family, he in fact acted for his own personal gain. But be that as it may, the general principle is that if an agent professes to contract on behalf of a named or identified principal, though without authority, this contract may be ratified and adopted by that principal, even though in truth the agent had no real intention of contracting on his behalf, but was engaged in a fraudulent pretence of his own account: see Re Tiedemann.10

Slight evidence of ratification is sufficient to bind a principal or owner of property; and the adoption of one of a series of acts constituting one transaction operates as a ratification of the whole transaction. I therefore disagree with the trial judge when he said in his judgment that the main question in this action was whether that admitted onus on the defendants has been adequately and/or sufficiently enough discharged. The onus on the defendants, if there was any at all, could be discharged by only slight evidence and not by “adequate and/or sufficiently enough” evidence as the learned trial judge seemed to think.

In my opinion there is abundant evidence on record that the family knew or must have known of the sale of the land to the defendants’ father in 1943, and that the head of the family and his principal elders with full knowledge of the facts adopted and ratified the sale contracted on their behalf by Quashie Solomon.

The conclusion I have arrived at on the issue of adoption and ratification would have disposed of this appeal had the learned trial judge not based his decision against the defendants on some other ground. In his judgment the learned trial judge came to the conclusion that the defendants’ father would have acquired an adverse title against the family by his occupation of the land in dispute for a considerable length of time; but he said:

“Unfortunately, however, for the defendants their late father and themselves did not maintain that occupation of the plot in dispute but from all the available evidence abandoned occupation of the plot resulting in the uncompleted building falling completely into ruin. In these circumstances the occupation evidence does not avail the defendants much in their effort to establish the acquisition by their late father in his lifetime of a prior title to this plot in dispute which could devolve upon them on his death intestate as pleaded. In the ultimate result, therefore, I am satisfied the defendants have failed to discharge the onus upon them of establishing a prior acquisition by their late father of the ownership and/or title to the plot in dispute in 1943 as alleged or any other time—and it follows that the plaintiff lawfully acquired title under his conveyance exhibit A.”

The only problem that arises therefore in this appeal is whether there is evidence to support this finding of the learned trial judge that the plot was abandoned. Land is deemed to be abandoned when the occupier

[p.13] of [1963] 1 GLR 1 of the land vacates his holding and ceases to exercise any right thereto for an unreasonably long time and does not show any intention of returning to it. In order to establish abandonment it was necessary for the plaintiff to show an intention to abandon in the minds of the defendants or their late father. This is usually a question of fact which may be inferred from the conduct of the party claiming the right to the land. It is one thing not to assert an intention to use land in one’s possession, and another to assert an intention to abandon it. A presumption of abandonment cannot be made from mere non-user: Ward v. Ward11: the cesser of use must be coupled with an act clearly indicative of the intention to abandon: R. v. Chorley.12

I have not been able to find any local case in which the nature of the evidence that constitutes abandonment has been fully considered. But, perhaps, I may refer, with approval, to the Nigerian case of Baillie v. Offiong,13 which I think would be found helpful not only because it is a case in which the question of what constitutes abandonment under a local custom was considered, but because it is in some respects similar to the present case. The facts of the case were that by a judgment obtained in 1913 the people of the town of Ikot Offiong were declared to be entitled to the exclusive occupation of certain land in that town subject to the right of certain strangers, of whom the plaintiff Baillie was one, to remain undisturbed in occupation of the land then being used by them. In 1917, Baillie left this site and his house subsequently fell down. In 1920, the defendants entered on the land and claimed the right to resume possession. It was held by the Supreme Court that there had been no abandonment of his site by Baillie who proved to the satisfaction of the court that his inactivity over the past three years had been due to ill-health and that he had always the intention to resume his occupation of his compound. On appeal, counsel for the appellant contended that the fact that Baillie had permitted his house to fall down was conclusive evidence of his abandonment of his compound, and that on proof that the house had fallen down the court was bound to hold that he had abandoned the compound, notwithstanding that the court might be satisfied by other facts that Baillie never intended to abandon his right to the compound.

But the Full Court rejected this argument and said14: “The fact that Baillie had allowed his dwelling house on the land to fall down was a fact which the Court might consider in deciding whether or not Baillie had abandoned the land; but such fact was not conclusive evidence of abandonment, and the Court was not only entitled to, but was bound to, take into consideration the circumstances in which the house had been allowed to fall down and any other facts which might show that Baillie had not intended to abandon, and had not in fact abandoned, his land.”

[p.14] of [1963] 1 GLR 1

In this case the only evidence of abandonment, though not conclusive by itself, was the fact that the defendants and their late father allowed their swish building on the disputed land to fall into ruin. But the defence gave two reasons for this, and these reasons clearly emerge from the evidence of the first defendant as follows:

“Q. Well—what happened to the building?

A. He constructed up the lintel level when he was informed by the Town Engineer that a street will be passing through the plot so he should suspend further completion of the building. True enough, not long after the street was made which affected and/or involved two rooms of the building which two rooms had therefore to be demolished.

Q. Shortly after this did your father do anything?

A. Yes, he fell ill.

Q. For how long?

A. For a very long time.

Q. And did you personally continue the building?

A. No—I then had no work and I travelled away from Accra with him in search of a native herbalist who could cure him. We went to Dankyira behind Weijah, then to Larteh.

Q. What subsequently happened to your father?

A. He never recovered his health before he died.

Q. At the time when your father died what had happened to the building?

A. By then the building had gone into ruins having been previously beaten by rain for some time Q. You have said when the road was made two rooms were demolished—do you refer to the rest of the rooms when you say the rains demolished them?

A. Yes. The rooms were four. The road affected two and the rains demolished the remaining two.”

In my judgment the defendants gave a satisfactory explanation of the circumstances in which the building had been allowed to fall into ruins. With all due respect to the learned trial judge I dissent from his finding that the land in dispute was abandoned by the defendants and their late father because the evidence does not justify such a finding. Counsel for the respondent confessed that he was unable to support the finding based on abandonment. Indeed, all the available evidence negatives an intention to abandon the land.

There is also one other reason why I think that the learned trial judge was wrong in basing his judgment on the issue of abandonment. In the plaintiff’s application for summons for directions the issues for trial were stated as follows:

“(1) Whether the land in dispute is the same land alleged by the defendants to have been bought by their father.

(2) Whether the defendants have trespassed on plaintiff ‘s land.” On the hearing of the summons the learned trial judge made an order in these terms: “Issues as per summons and as may be disclosed by the pleadings.” To my mind to

[p.15] of [1963] 1 GLR 1 raise an issue of abandonment is to allege estoppel by conduct which was not pleaded by the plaintiff and in support of which he led no evidence whatsoever: see Young v. Star Omnibus Co., Ltd., per Farwell, J. 15

In my view, therefore, the learned trial judge erred in basing his judgment on a point which was not a triable issue on the pleadings: see Oloto v. Williams16. I venture to say, with all respect, that the pronouncement on abandonment is of no effect because the court went beyond the rights which were really in issue between the parties. In Robinson v. Duleep Singh, James L.J. said17: “… if the court had gone beyond the rights which were properly in issue between the parties the decree of the court would be absolutely null and void.” Having held (1) that the land in dispute is the same land alleged by the defendants to have been bought by their father, and (2) that the defendants had been on the land in dispute since 1943 with the acquiescence of the Lutterodt family, the trial judge should have given judgment for the defendants.

Since the only ground on which judgment was given against the defendants was the question of abandonment of the land in dispute, it follows that this appeal by the defendants must succeed. In view of the findings and conclusions, it is unnecessary to deal specifically with the other grounds of appeal which are in effect covered by my observations. For the above reasons I think that the judgment in the court below was wrong and should with the order as to costs, be set aside. In lieu thereof judgment is entered for the defendants with costs in this court and in the court below.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I agree and have nothing to add.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal allowed.

Judgment entered for the defendants with costs.

J.D.