Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, MILLS-ODOI AND OLLENNU JJ.SC
JUDGMENT OF ADUMUA-BOSSMAN JSC
This appeal is against a judgment dated 11 May 1962 of the High Court, Sunyani, whereby the
respondent’s claim was upheld, the substance of which was that two cocoa farms described in the writ and statement of claim were the properties of the respondent’s late uncle, Oppong Yaw, which, on the latter’s death, devolved upon the respondent as successor to hold as family properties; and that the sale by public auction of the said farms by the second appellant, a licensed auctioneer, at the instance of the first appellant, a moneylender, was wrongful and illegal.
In form the writ of summons, as amended, was a claim for (1) a declaration that the two cocoa farms are the respondent’s family properties; (2) an order for possession; and (3) £G800 damages for the unlawful sale of the said farms. The action being, therefore, for recovery of possession of land, the observations of their lordships Blackburn and FitzGerald in the House of Lords’ case of Danford v. McAnulty1 become peculiarly and appropriately applicable to it. Lord Blackburn stated,2
“For a long time an action for the recovery of land at law was brought by Ejectment, and it was so established as to be trite law … a common-place expression of law … that in ejectment, where a person is in possession those who sought to turn him out were to recover upon the strength of their own title”; and Lord FitzGerald observed,3
“The plaintiff could succeed only on the strength of his own title and could not found his claim on the weakness of the defendant’s, for the law respected possession and deemed it lawful until some claimant established in proof that he had a title to the land and a right of entry to oust the defendant. The party who sought to change the possession should first shew a legal title to it in himself.”
Furthermore, as established by the principle of pleading exemplified by that case, and expressly provided by the Supreme [High] Court (Civil Procedure) Rules, Order 21, r. 21,4 the first and principal appellant in the instant case who is in possession and from whom possession is sought, did not need to “plead his title … but it shall be sufficient to state by way of defence that he is so in possession, or does not admit the allegations of fact contained in the plaintiff’s statement of claim”; so that the respondent was thereby put to strict proof of his alleged title.
The principal issue which seems to emerge for determination in the appeal, therefore, is whether the respondent sufficiently and satisfactorily proved the title which he claimed, bearing in mind that the standard of proof imposed by the law upon him is that of “demonstrating beyond reasonable doubt that the title to the disputed area [of cocoa farms] … is his.” (See per Lord Alness in Kponuglo v. Kodadja.)5
From the evidence of the respondent and his three witnesses, the case set-up was that the respondent’s late uncle acquired the two farms in dispute by cultivation or farming on Abisim stool land. As will be seen later by reference to the statement of claim and the respondent’s evidence, the alleged fact of cultivation or farming was not disclosed in the said statement of claim and the respondent’s evidence, but it came out in the evidence of the respondent’s witnesses. The further case put forward was that the cultivation or farming by the respondent’s uncle started fifteen years ago, after which he died twelve years ago, reckoning from the date of trial of the instant case in April 1962, whereupon the farms devolved upon the respondent as successor to hold as family properties in accordance with customary law.
The first appellant, although not bound to plead his title as herein before pointed out, nevertheless pleaded that the ownership or title to the disputed farms was vested in Kwame Krah and Yaw Barimah, two junior members of the respondent’s family; and that they mortgaged the same to him under a deed of mortgage dated 27 April 1954 whereby they empowered him to sell upon their failure to pay the debt secured by the said mortgage. The second appellant adopted and repeated the defence of the first appellant, with the further explanation that he sold upon the latter’s instructions.
In due course, at the trial, the first appellant gave evidence and adduced the evidence of three witnesses towards establishing the case of himself and the second appellant that Kwame Krah and Yaw Barimah cultivated or made, and thereby became the owners of, the two disputed farms. From the respective cases put forward by the parties, therefore, the crucial issue of fact arose for decision, whether it was the respondent’s uncle late Oppong Yaw who, about three years before his death, cultivated, or made the two disputed farms; or rather Kwame Krah and Yaw Barimah who commencing some time about February 1947 made the said farms.
Now, in respect of that issue of fact, the first appellant had in his favour the express admission of the respondent himself as well as his third witness, his mother, that at all material times in the history of these two farms in dispute, Kwame Krah and Yaw Barimah were in occupation and control, although the respondent and his said third witness further alleged that Kwame Krah and Yaw Barimah had the said occupation and control merely as caretakers. In connection with this evidence as to occupation and control, the respondent at first testified saying: “When Oppong Yaw died I succeeded him and inherited these farms: I am still in possession of these farms,” thereby giving the impression that it was he who, even at the date of trial, was in occupation and control of the disputed farms. Almost immediately afterwards, however, possibly recollecting that he was claiming possession, he gave evidence tending to
correct that first impression and stated: “When Oppong Yaw was alive my nephews Kwame Krah, Yaw Barimah, and Kofi Mensah, looked after these farms. They are maternal nephews. Since Oppong Yaw died these nephews looked after the farms and supervised the labourers.”
His testimony that Kwame Krah and Yaw Barimah were in occupation and control, as already indicated, was confirmed and corroborated; but his further testimony that another nephew Kofi Mensah was joined together with them in their said occupation and control of the disputed farms, was discredited and disproved by the testimony of his own mother and their witness that: “Yaw Barimah is a maternal brother to Kwame Krah. They have the same mother who is my daughter. Kwame Krah and Yaw Barimah work in the two farms at Suyawhu, and they work on them as the caretakers.”
The fact being, therefore, conclusively established by the express admission of the respondent himself and his third witness that during the lifetime of Oppong Yaw and for the long period of twelve years after his death Kwame Krah and Yaw Barimah had, and retained, occupation and control of the two farms in dispute, it would seem to follow that their de facto possession by itself is prima facie proof of their title to the said farms; for, was it not observed by Mellor J. in Asher v. Whitlock6 that: “possession is prima facie evidence of seisin in fee?” See also two old cases (a) Doe. d. Hughes v. Dyeball7 where, in ejectment to recover a room in a house, possession of which the defendant had forcibly taken from the plaintiff, the latter proved a lease to himself of the house and a year’s occupation and rested his case there; whereupon
the defendant’s counsel submitted that the title of the demising party was not proved and that the respondent therefore had not proved his claim; Lord Tenterden C.J., however, held: “ . . . there is ample proof ; the plaintiff is in possession, and you come and turn him out: you must shew your title,” and (b) Doe. d. Hall v. Penfold8 where, in ejectment, the lessor to the plaintiff commenced his title by showing a conveyance in fee from one Stroud in 1807, but all the evidence of Stroud’s title was that he was in possession in 1806 and 1807, and counsel for the defendant submitted that there was not sufficient evidence of the seisin in fee of Stroud, who by the deed put in, assumed to convey an estate in fee. Patterson J., however, held:
“If he [Stroud] was in actual possession, that is evidence that he was seised in fee, unless there be something to shew that he had a less estate. I think that if nothing further be shewn, it is, at least, some evidence of a seisin in fee”; and lastly, the much more modern case of Perry v. Clissold9 where Lord Macnaghten, delivering the judgment of the Privy Council in an Australian appeal which raised the question whether a mere squatter was entitled to compensation upon the compulsory acquisition of land including his holding, stated:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.”
As, therefore, Kwame Krah and Yaw Barimah, by their de facto possession of the two farms in dispute, had or were vested with prima facie title to the said farms, it follows that upon the execution by them of the deed of mortgage dated 27 April 1954 to the first appellant, they transferred to him as mortgagee, the prima facie title and the seisin or legal right of possession incidental to, or inherent in, it. So in Copestake v. Hoper10 where the question arose whether it was the mortgagor, or rather the mortgagee, who was seised, i.e. had the legal right of possession, of the mortgaged property, Cozens-Hardy M.R. pointed out and observed that,11
“Alienation has been effected from time to time in different ways … sometimes [e.g., originally] by feoffment with livery of seisin; … [and] sometimes [e.g., ultimately] by a statutory conveyance taking effect … under the provisions of the Real Property Act, 1845 [8 & 9 Vict., c. 106, s. 2]. In whatever form the alienation takes place, nothing whatever is left in the alienor. I cannot [therefore] doubt for one moment that the statutory conveyance of November, 1887, passed the legal fee. It is clear that two persons cannot be seised of the land at the same moment, and I cannot appreciate the argument that the alienor, while retaining no estate
or interest in the land, has some scintilla juris sufficient to support an alleged seisin. Unless, therefore, a distinction can be drawn between an absolute conveyance to a purchaser and a conveyance by way of mortgage, it seems clear to me that the lord cannot assert with truth that Hoper died seised.”
Buckley L.J. added12:
“When Hoper executed to Browell the conveyance he unquestionably passed to Browell the whole estate at law. There remained in Hoper only such rights as exist in a mortgagor who has executed a mortgage in fee simple. The seisin, which is the possession of the estate of freehold, passed, I think, by the execution and delivery of the deed to Browell, in whom the whole estate become vested at law.”
That was a case in which the mortgagee had not given notice of, nor made, entry upon the property. In the instant case, however, the mortgagee, after due notice, made entry by his agent to sell, when writ was filed; and although the auction sale took place, it appears nothing further has been done; and completion of the sale and transfer of possession to the purchaser at the auction have been suspended pending determination of the instant litigation about the properties.
At this stage it appears to me to be not only convenient but necessary to point out that although the nature or quality of the estate, interest, or title in the two farms in dispute, having regard to the evidence of their acquisition by cultivation of farming of stool land, cannot be a freehold or fee simple estate, interest, or title, but rather a customary usufructuary or possessory estate, interest, or title, (see Kokomlemle Consolidated Cases13 and Nii Amon Kotei v. Asere Stool14) nevertheless that difference in the nature or quality of the estate, interest, or title, of the disputed farms from, or as compared with, the nature or quality of a freehold or fee simple estate, interest, or title, in no way affects the consequences or results which flow from the occupation and possession of the said disputed farms, as hereinbefore explained by reference to the English authorities or decided cases mentioned.
To make the position, perhaps, more explicit, it seems to me that the farms in dispute, instead of being acquired by farming on stool land so that only a usufructuary title thereto was obtained, might have been acquired by outright gift from the stool so that an absolute title approximating or equivalent to a freehold could have been obtained in respect of them; and nonetheless, the questions under consideration in the instant case, would still have been outstanding for consideration and decision, i.e. whether in respect of the issue of ownership, the fact that the appellants are proved to be in occupation does not establish their prima facie title and throw upon the respondent the onus of establishing a superior title; and also, in respect of the legal consequences of the admitted mortgage under a legal mortgage deed, whether the legal right to possession of the mortgaged property did not pass to the mortgagee? In short, therefore, the substitution of two freehold farms for the two customary usufructuary farms, would not, in my opinion, affect in any way the issues or questions for consideration, or the legal arguments arising in respect of those issues or questions.
To return, then, to the point from which the digression was made, it seems too plain for argument, that the first appellant’s prima facie title to the two farms in dispute was clearly and undoubtedly established by is admitted occupation, which in turn was derived from the admitted occupation and control of the said two farms by Kwame Krah and Yaw Barimah, which latter occupation and control of Krah and Barimah, according to the respondent himself, subsisted, “when Oppong Yaw was alive, and since his death.” In these circumstances, the question which seems to arise is: How far does the sum total of the evidence put forward on behalf of the respondent succeed in destroying that established prima facie title of the first appellant?
The answer to that question, in my opinion, after the most careful and diligent examination and consideration of that evidence for the respondent, in relation to the evidence for the first appellant, as well as certain indisputable circumstances about the case as a whole, is, that the evidence for the respondent does not succeed at all but rather fails abjectly to destroy the prima facie title of the first appellant. And, that failure of the evidence for the respondent in its dual objective of destroying the first appellant’s prima facie title and simultaneously establishing a superior title, has come about in this way. In the first place, in the statement of claim filed on his (respondent’s) behalf, all that was pleaded was that the disputed farms were family properties; but, despite the variety of ways in which family property can be acquired, nothing
further was alleged to show how the said disputed properties became family properties, nor was the name of Oppong Yaw through whom the said properties were claimed, as later appeared in the evidence of the respondent and his witness even mentioned in the said statement of claim.
Now, as to this matter of how title should be pleaded, the well-known works or publications on pleadings are all clear and definite that in pleading title in an action for recovery of land, the basic or material circumstances or facts as to how the title alleged has come about should be set out in the statement of claim, to afford information to the defendant of the case which he has to meet. So in Bullen and Leake On Pleadings (10th ed.), p. 43, it is stated:
“The rules as to pleadings in an action for the recovery of land differ in some respects from those which govern other actions. These differences are mainly due to the common law principle that the plaintiff in such an action must recover by the strength of his own title, and not by reason of any defect in the title of the person in possession. Hence as a general rule the plaintiff must set out in his statement of claim the steps by which the land has devolved on himself, showing each link in his title, and all other facts which show that hewas entitled to possession of the land at the date of the writ; and must disclose a sufficient ground of action.”
Again in Lord Atkin’s Encyclopaedia of Court Forms and Precedents in Civil Proceedings (1949 ed.), Vol. 13, in the chapter on recovery of land, pp. 492-493, it is there stated:
“Because of the ancient rule that possession is prima facie evidence of right to that possession, the plaintiff can recover only by the strength of his own title and not by the weakness of the defendant’s, and his own title must be strictly and fully proved in the pleadings. Order 19, rule 4 [providing that every pleading shall contain a statement in summary form of the material facts on which the party pleading relies] applies to a Statement of Claim in an action for the recovery of land, just as much as it applies to Statements of Claim in other proceedings, and accordingly the plaintiff should allege in summary form in his Statement of Claim the facts that have to be proved to establish the right or title that will enable him to succeed in his action.
Normally, therefore, the Statement of Claim will contain a detailed statement of the facts showing the plaintiff’s title at the date of issue of the writ.”
In the leading case of Philipps v. Philipps15 the headnote is this:
“In an action for recovery of land where the plaintiff claims by devolution from an alleged
predecessor-in-title, it is not necessary to set out the whole of the plaintiff ‘s title in the statement of claim, but it must state the nature and effect of the documents under which the plaintiff claims, and such material facts in his pedigree as he relies upon to establish his right.”
Brett L.J. stated16;
“There is another test. If the parties are held strictly to the rules, no material fact may be proved which has not been stated in the pleadings, but other facts may be given in evidence from which the material facts may be inferred. The statement of claim, therefore, must contain every fact on which the plaintiff relies to prove his claim.”
Cotton L.J. also ruled that17: “in every case the plaintiff must set out the material facts on which he intends to rely in such a way as to prevent the opposite party from being taken by surprise.”
In the much later case of Pledge & Sons v. Pomfret18 Joyce J. dealt with some of the earlier cases, by way of examplifying the application of the rule, and gave instances where the courts declared the pleadings to be defective, as well as instances where they declared them to be in order, and he stated as follows19:
“Certain cases were cited to me on behalf of the defendants⎯especially Harris v. Jenkins (47 L.T. Rep. 570), a decision of Fry, J. In that case there was a claim for a private right of way, but it was not stated in any way how it originated or how the plaintiff got it, and the plaintiff was ordered to amend by stating whether he claimed by grant or by prescription … Again, in Philipps v. Phillips (39 L.T. Rep. 556) and also in Davis v. James (ubi sup.), which Kay J. said (26 Ch. Div., at p. 783) was absolutely identical in principle with Phillips v. Phillips, there was a claim by the plaintiff, who had never been in possession … without the slightest suggestion how the claim was to be made out. In Davis v. James (ubi sup.) the plaintiff claimed to be entitled
to a reversion on a lease, he not being the original grantor of the lease, without the slightest suggestion as to how he got the reversion. In Palmer v. Palmer ((1892) 1 Q.B. 319) the plaintiff was ordered to give particulars of how he claimed to be heir-at-law . . . In the present case the statement of claim, in my opinion, is not embarrassing. It is perfectly plain to the defendants what case they have to meet . . .”
In the light of the above-mentioned cases, it can hardly be contended that the statement of claim in the instant case, which gave no indication whatsoever as to how the two farms in dispute became the respondent’s family properties was not gravely defective, by reason of its “embarrassing” character, in that it did not disclose, as it should have done, the basic or material facts or facts on which the claim to the family title alleged was founded.
In the second place⎯leaving aside the question of the unsatisfactory pleading of the respondent and turning to the evidence put forward towards establishing the said respondent’s case⎯that evidence was not only strikingly weak, as it seems to me, but clearly incredible in the light of a certain state of affairs admitted to exist in connection with farming on that area of land within which the disputed farms are located or situate. Dealing, firstly with the feature of weakness about the respondent’s case or evidence as a whole, the evidence, in my opinion, was weak because there were available, apparently, many persons who, if the respondent’s case be true, were in a position to substantiate the same, but who, for some unexplained reason, were not called to give evidence at all. For example, the respondent mentioned no less than six boundary owners as forming boundaries with his late uncle in so far as the first described farm is concerned, and three boundary owners in so far as the second described farm is concerned.
Yet, bearing in mind that he was committed to proving the title claimed “beyond reasonable doubt,” he called just one witness who testified only about the first described farm but said not a word about the second described farm, which, according to the respondent, was separated only by a stream from the first. Moreover, he called no boundary owner whatsoever about that second described farm. Again he mentioned one Kofi Mensah, his nephew, as having joined with Kwame Krah and Yaw Barimah in controlling the farms as caretakers and supervising the labourers; yet he called neither this Kofi Mensah, his nephew, nor any of the labourers, to testify in respect of the vital question of the capacity in which Kwame Krah and Yaw Barimah controlled the farms.
Lastly, his own evidence was particularly open to criticism in that it even failed to lay the foundation for establishing the crucial fact on which his case depended; for, strange as it may sound, he merely testified that his late uncle in his lifetime “owned” the disputed farms, but said nothing at all about the circumstances how the said uncle came to own the said farms, and above all, said nothing whatsoever about his said uncle cultivating or farming on stool land at Suyawhu. His material evidence was the following: “I know Oppong Yaw. He was my uncle. When he was alive he owned two cocoa farms at Abisim. One farm was opposite the other, and the two farms were divided by a stream. The farms are at a place called Suyawhu.” He went on from that point in his evidence to describe one farm as bounded by six other farms of boundary owners whose names he mentioned, and the other farm as bounded by farms of three other boundary owners and the stream.
It can thus be seen that the respondent did not in fact testify at all in as to his late uncle acquiring the farms in dispute by cultivation or farming. It was rather his first witness, the linguist to Dormaahene who, in his testimony, mainly on the question of the respondent’s introduction after his late uncle’s death to Dormaahene while he (witness) was present as customary successor of the said uncle, somehow went on to state: “I know Oppong Yaw farmed at Abisim, but I never went to Abisim to look at his farm”; and thereby gave indication that the case which the respondent was putting up was one of acquisition of the disputed farms by farming by late Oppong Yaw on Abisim stool land. The witness went on further, however, to testify under cross-examination: “I do not know the farms of Oppong Yaw; but if Oppong Yaw had farms in Abisim, then, by custom they belong to Kofi Fofie (plaintiff)”; so that his evidence,
beyond giving indication that a case of the acquisition of the farms in dispute by means of cultivation or farming on the Abisim stool land by the late Oppong Yaw was about to be put forward, can hardly be said to have advanced that case to any appreciable degree.
That case (of the acquisition of the disputed farms by farming on Abisim stool land) was, however, put forward on the respondent’s behalf by his second and third witnesses. The material evidence of the second witness, who described himself as a farmer living at Dormaa Ahenkro, was the following:
“I have a farm at Suyawhu. I know one Oppong Yaw now dead. I form boundary with Kofi Fofie (not plaintiff), Oppong Yaw deceased, and Yaw Kuba. When Oppong Yaw started to farm, he approached me for cocoyam and plantain suckers to plant in his farm and I gave them to him. Oppong Yaw’s farm now has cocoa trees in it. I know one Kwame Krah. He is related to Oppong Yaw, and Krah used to come with other relatives to the farm. I do not know of any farm in the area belonging to Kwame Krah.”
As to this evidence of the second witness about cultivation at Suyawhu by Oppong Yaw, if the witness be really and truly a boundary owner, and one occupying the important position of being the earlier-settled farmer from whom late Oppong Yaw obtained coco-yam and plantain suckers to plant in his newly cultivated farm ⎯ but not, perhaps, just a farmer in the locality having no intimate knowledge of the two farms in dispute ⎯ then it seems difficult, in the light of the resp?ndent’s description of the two farms as separated only by the stream, to understand why he testified about one farm only as having been made by Oppong Yaw, and his evidence gave no indication whatsoever that he knew anything about a second farm situate just opposite that which is alleged by him to form boundary with his.
Moreover, in the light of the evidence of the respondent and his third witness, to which reference has been made already, as to Kwame Krah and Yaw Barimah’s occupation of the two farms as caretakers, even in Oppong Yaw’s lifetime, it seems difficult to understand why the witness, does not appear to know Kwame Krah as caretaker, and, as for Yaw Barimah, did not even mention him in the course of his evidence. Again, in the light of the evidence of the third witness (to which more detailed reference will be made hereafter) that she assisted her brother Oppong Yaw in the cultivation of the farms, and even accompanied him to the respondent’s second witness to obtain suckers for planting in Oppong Yaw’s fresh cultivations, it seems still further difficult to comprehend why, Oppong Yaw having been dead for a long time but his sister the third witness being alive, the second witness did not mention her once throughout his evidence, either as assisting Oppong Yaw in the general cultivation of the farm about which he himself testified, or as accompanying her said late brother to obtain from him (second witness) suckers for planting.
Be that as it may, after him came the third witness who also testified concerning farming by Oppong Yaw at Suyawhu, as follows:
“I know Oppong Yaw. He was my brother now deceased. I know plaintiff. He is my real son … When Oppong Yaw lived he had two farms in Abisim area. I know the farms of Oppong Yaw at Abisim. The two farms are at a place called Suyawhu. I worked on the farms. I helped Oppong Yaw to cultivate the farms, and even we went to Kyeremeh (P.W. 2) to ask him for plantain and coco-yam suckers to plant on Oppong Yaw’s land. Plaintiff is at present the one who benefits from the proceeds of these two farms.”
It is by this evidence, supported, at any rate as to one farm, by the evidence of the second witness hereinbefore set out, that the case is put forward on behalf of the respondent that the late Oppong Yaw about three years before his death twelve years ago, acquired the two cocoa farms in dispute by cultivation or farming.
As I have stated earlier in this judgment, however, the case, in my opinion, is a weak one. The impression which one gets from the whole of the evidence put forward by the respondent and his witnesses is that there is no coherent and comprehensive or full narrative, however short it might be but giving nonetheless the basic and essential facts, as to how Oppong Yaw came to go to Suyawhu for example, set about or started work and carried on until he was able to accomplish or effect the complete and full cultivation of two cocoa farms within a period of three years, after which he died rather suddenly about twelve years ago. There was just the brief and terse statement that Oppong Yaw cultivated the two farms in dispute at Suyawhu about fifteen years ago and that his nephews Kwame Krah and Yaw Barimah looked after the farms and supervised the labourers. Both the second and third witnesses spoke about plantain and
coco-yam suckers being obtained from the second witness and planted either in one or both farms; but how the farms became cocoa farms was never disclosed or revealed.
In these circumstances, and in the light of (1) the grave and serious discrepancies between the second and third witnesses to which reference was made in the course of the comments which followed the reproduction of the said second witness’s evidence supra; and (2) certain unsatisfactory features about the presentation of the respondent’s said case, to which also reference has already been made, i.e. his own remarkable silence as to the very foundation of his case, and his failure to call persons who were in the position of the best available material witnesses, I am of the opinion that the respondent’s case, standing by itself without reference to any discrediting evidence emanating from the side of the appellants, was too gravely weak to have the effect of destroying the first appellant’s prima facie title.
Turning, however, from this aspect of the respondent’s case, and passing on, secondly, to the aspect of it which I referred to as incredible in the light of a certain state of affairs admitted by both sides to be
existing or prevailing with respect to farming on the whole area of land within which the two farms in dispute are located, the question which firstly arises, of course, is, what is that state of affairs? As to that, evidence from the respondent’s side was given by the second witness who testified as follows:
“I know of the Nkwanta and Susuanso land dispute. It affected the area on which I had my farm. When we first ploughed the land there was no dispute, and it was after we had farmed that the dispute arose and there was an injunction order and it was ordered that those who went to farm on the land had to get permits. After the injunction order I obtained a permit. All those who had farms there had to get permits.”
The second witness of the first appellant, Mr. Twum, a bailiff from the District Magistrate’s Court, Obuasi, gave a clearer explanation of the said state of affairs in his evidence as follows:
“In 1947 I was bailiff stationed at Sunyani attached to the magistrate’s court. In March 1946 there was an injunction order in respect of Susuanso v. Contrajeso (Dormaa) case reference Abisim land dispute. I was appointed receiver and manager of all rents in respect of the properties in dispute. My duties were that before [or when] anyone wanted to farm on the disputed area he was to submit an application, and upon the application I went to the land to inspect where he had demarcated for farming and I granted him permit to farm and charged him £G1 7s. Od. Those who [previously] had farms on the land were not granted permits. I
charged those who farmed there to pay a yearly tribute depending on the size of the farm.”
This, then, was the state of affairs with respect to farming at the material time on the Abisim stool land. If a farmer had farm on the land prior to the date of the receiver’s appointment, then he paid yearly tolls in respect of his farm; but if a farmer wanted to make a new farm on the land after the date of the receiver’s appointment, the farmer applied and was issued with a permit for which he paid £G1 7s. Od. It is, therefore, these admitted circumstances about farming on Abisim land at the material time, i.e. fifteen years ago reckoned from the date of the trial of the instant action in May 1962 (which takes one back to 1947) which, in my view, enables the task of resolving the crucial issue of fact as to whether it was late Oppong Yaw, or rather Kwame Krah and Yaw Barimah, who cultivated or made the disputed farms, to be
approached with a greater degree of assurance and confidence. The learned trial judge did not appear to have considered that admitted circumstance as having any bearing whatsoever on, or relevancy to, that main issue of fact for determination, and, accordingly, did not at all examine the conflicting evidence for the parties respectively on that main issue, in the light of that admitted circumstance. In that conduct, he appears to me, with respect, to have erred, for that admitted circumstance is, in my view, most material and relevant to the decision of that main outstanding issue of fact.
By reason of it, it is beyond doubt that, in effect, every farmer on Abisim land at the material time, i.e. about the beginning of 1947 for a period of four to five years after, came under the direct official recognition, as it were, and partial supervision in so far as his farming is concerned, of the receiver and manager functioning for the time being. As already indicated if the farmer be one concerned with making a new farm after the date of appointment of the receiver, he had to apply for and be granted a permit after inspection of the plot of land he had selected and marked out; on the other hand if the farmer be one concerned with carrying on his farming, as from the said date of appointment of the receiver, in a farm already made and subsisting prior to the said date of appointment of the receiver, then he had to be assessed for payment of tolls after inspection of his farm and he paid the assessed tolls annually to the said receiver.
With one’s general knowledge of this type of receivership ordered by the court in which the receiver’s remuneration is generally a certain percentage of the total amount of tolls which he is able to collect periodically, one feels quite certain that but few farmers on the land can possibly escape or avoid the said receiver’s detection of their presence and farming activities on the land, especially as part of his evidence was: “I submitted returns every year to show those who farm on the land.” It seems to me, therefore, that in this state of affairs about farming on the land at the material time round about 1947, the respondent’s case of his uncle Oppong Yaw having cultivated or made the disputed farms but left Kwame Krah and Yaw Barimah in occupation and control as caretakers, was decisively discredited, not only by his own failure to establish the fact of the receiver’s recognition of his said late uncle as being at any time a farmer on the land, but also of the receiver, bailiff Twum’s, positive evidence to the effect that it was to Kwame Krah and Yaw Barimah who he gave permits to cultivate farms on the Abisim land and who to his knowledge have farms at Suyawhu, though at the time of his evidence he could not remember the exact locations or sites of their farms.
From the witness’s statement about not remembering the sites of the farms of Kwame Krah and Yaw Barimah, the learned judge expressed the conclusion that:
“There is no evidence to show the particular areas which were allocated to Kwame Krah and Yaw Barimah in Suyawhu, to enable this court to find out whether these new farms made by Krah and Barimah are the same farms being claimed by plaintiff’s family. I find therefore that the effect of the evidence of this witness is that Krah and Barimah could have had farms in the area Suyawhu. Witness said in his evidence that he could not remember the particular positions of these farms.”
In my view, however, the foregoing conclusions, with respect, are completely unwarranted, primarily because it was not the case of the respondent and his witnesses at all that Kwame Krah and Yaw Barimah are associated with, or work on, some other farm or farms in the Suyawhu area, other than the two in dispute, to entitle the court to make finding of the existence of such a situation of affairs.
On the contrary the case of respondent and his witnesses was that the only farms at Suyawhu with which Kwame Krah and Yaw Barimah are associated and in which they work are the two disputed farms, in which they work as caretakers, and that they have no other farms there. So the second witness stated, “I do not know of any farm in the area belonging to Kwame Krah”; and the third witness said: “Yaw Barimah has no farm at Suyawhu. He and Krah worked on the two farms made by Oppong Yaw.” As, therefore, the two sides had put forward conflicting stories as to the origin or making of the same two farms which were admitted to be in the occupation of Kwame Krah and Yaw Barimah, the respondent and his witnesses alleging that Oppong Yaw made them, but the first appellant and his witnesses alleging that Kwame Krah and Yaw Barimah made them, upon production of applications for permits to cultivate the
said farms with approvals endorsed on them, exhibits 3 and 4, supported by the evidence of bailiff Twum that Krah and Barimah made farms at Suyawhu following the permits exhibits 3 and 4, it seems to me the learned judge was committed to find for one or other of the two conflicting stories as to who made the farms in dispute, but not to discard both stories and make a finding of what in effect is an assumed state of affairs not supported by any evidence of either side⎯as appears to have been done by the learned judge.
In his judgment under consideration, the learned judge’s ultimate conclusion was:
“Plaintiff by his evidence and that of his witnesses has proved superior title that the land was originally cultivated by Oppong Yaw; and that Krah and Barimah were in possession only as caretakers, and not as owners; and I accept the evidence of plaintiff and his witnesses as sufficient proof that the two farms are properties of plaintiff ‘s family.”
This conclusion or decision is sought to be impugned on a number of grounds, including:
“(a) the learned judge failed properly to direct himself on the evidence as a whole;
(b) the learned judge did not properly consider the case of the first defendant; and
(c) the judgment is against the weight of the evidence,”
all of which grounds above-mentioned were taken and argued together as though the substantial ground was the last-mentioned, i.e. “the judgment is against the weight of the evidence.” Learned counsel for the appellants in his arguments in support of the appeal reviewed the evidence on record for both sides and particularly criticised the learned judge’s
acceptance or preference of the evidence of the respondent and his witnesses as being unwarranted when regard is had to the virtually incontrovertible evidence of the first and second witnesses for the first appellant. Learned counsel for the respondent in reply submitted that on the substantial ground argued on behalf of the appellants, namely, that the judgment is against the weight of evidence, it is well settled that where there is evidence on record which could be accepted by the trial judge as a judge of facts and he has accepted the same to give judgment for the respondent, the appeal court ought not to interfere with the trial judge’s decision. Counsel went on to point to the evidence of not only the respondent but the second and third witnesses and submitted that the evidence was sufficient, if accepted, as the learned judge expressly declared he accepted the same, and the appeal should therefore be dismissed.
It seems to me to be a sufficient answer to these submissions of learned counsel for the respondent to refer to, firstly, the directions contained in the speech of Lord Thankerton in the House of Lords case of Thomas v. Thomas20 and particularly the passage which I now quote:
“Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion . . . The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he [the trial Judge] has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court,”
and, secondly the observations of Webber C.J. in Codjoe v. Kwatchey21 that:
“An Appeal Court will not interfere with the decision of Court on facts unless such decision is shown to be perverse or not the result of a proper exercise of discretion . . . The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong.”
In the light of the principles above expressed, I have no doubt whatsoever, for the reasons already indicated, that the judgment cannot be supported. Those reasons are (1) that the evidence of the respondent and his witnesses concerning the crucial issue of the cultivation or making of the disputed farms was much too tenuous or weak, even when considered without reference to any discrediting evidence emanating from the appellants’ witnesses, to discharge the onus upon him (the respondent) and displace the appellants’ prima facie title by occupation and possession; and (2) that in the light of the admitted fact that the area of land within which the disputed farms are located was, at the material time, under a receiver and manager appointed by the former Supreme Court so that a farmer making a new farm as well as one continuing with the management of an old existing one, have both in effect to farm with the
receiver’s knowledge and permission, the case of the respondent and his witnesses that his uncle Oppong Yaw made the disputed farms and maintained them for three years before he died, without the knowledge and permission of the receiver and manager, is decisively discredited by the evidence for the appellants.
In the result I would allow the appeal, set aside the judgment appealed against, and enter judgment for the appellants dismissing the respondent’s claim.
JUDGMENT OF MILLS-ODOI J.S.C.
I agree.
JUDGMENT OF OLLENNU J.S.C.
I also agree.
DECISION
Appeal allowed.
S.A.B.
