Division: IN THE SUPREME COURT
Date: 20 JANUARY 1964
Before: SARKODEE-ADOO, OLLENNU AND BLAY JJ.S.C.
JUDGMENT OF SARKODEE-ADOO J.S.C.
Sarkodee-Adoo J.S.C. delivered the judgment of the court. The issue for determination in this appeal is whether the transaction between the predecessors of the parties was an absolute sale or a pledge in respect of a cocoa farm situate and being at Ayirewoma in the neighbourhood of Agona Nkum. There can be no doubt as to the identity of the cocoa farm in dispute as claimed and particularly described and bounded in the plaintiff s writ of summons and their statement of claim as borne out by exhibits A and 2 which refer to the same cocoa farm, save and except that it appears some undue and needless confusion arose at the trial by the introduction and admission in evidence of exhibits B and 5 which refer to a distinct and separate piece of land.
This appeal has come before us from a judgment of Sowah J., dated 22 January 1963, whereby he dismissed the plaintiffs’ claim against the defendant for:
“(1) A declaration that the transaction between late Kweku Asani Yaw of plaintiffs’ family and late Kwesi Aduamoah, defendant’s predecessor, in respect of one large cocoa farm divided into lots situate at Abutreso between Nyakrom and Agona Nkum Road bounded on the sides by one Kweku Dua’s cocoa farm, one Kofi Kuma’s cocoa farm, one Effum’s cocoa farm, and Papa Mensah’s cocoa farm, was a pledge.
(2) A declaration that the said cocoa farm is the property of the plaintiffs’ family.
(3) Accounts of the proceeds of the said cocoa farm.
(4) Order for recovery of possession and ownership of the said cocoa farm.”
The defendant by her statement of defence disputed the plaintiffs’ claim and maintained that the transaction was an absolute sale.
Upon the summons for directions the issues agreed to be tried were:
“(a) Whether or not the transaction between late Asani Yaw of plaintiffs’ family and Kwesi Aduamoah, defendant’s predecessor, was a sale or a pledge in respect of the subject-matter of this action.
(b) Whether or not the property, the subject-matter of this action is family property.
(c) Whether or not the amount received by late Kweku Asani Yaw was £G40.
(d) Whether or not attempts were made by plaintiffs on behalf of themselves and their family to redeem the said property.
(e) Whether or not the plaintiffs are entitled to the relief sought.”
[p.36] of [1964] GLR 34
The learned trial judge in the course of his considered judgment referred to the pleadings and the issues involved and proceeded to deliver himself thus:
“I am not one of those quaint persons who believe that a person can recapitulate from memory, events, affairs or matters which occurred twenty years ago with the same accuracy as things which happened a few weeks or months ago and that if that person makes a few slips, then he is lying and ought to be discredited.
In my view with the passage of time slips are bound to occur especially when there is no reason why that person should keep such events constantly in his memory. And with this caution I proceed to examine the evidence adduced on behalf of the parties.
I shall deal firstly with the case of the plaintiffs: suffice it to say that the plaintiffs were not present when the transactions the subject-matter of the dispute were entered into. They depend entirely upon their own witnesses, and second-hand information. The first witness of the plaintiffs was Kwame Addo who stated that one morning he was in his house when late Asani Yaw sent for him and informed him that he intended to pledge his farm to the late Kwesi Aduamoah. This was in 1936, though the pleadings alleged that the transaction was in 1937. In passing, this discrepancy may seem unimportant but we shall soon see how important it is.
According to this witness, Asani Yaw himself and other friends or relatives of the said Asani Yaw gathered in Asani Yaw’s house. Aduamoah was duly informed that Asani Yaw was ready to go to the farm with him. Kwesi Aduamoah and his party arrived and both parties went and inspected the farm and returned home for bargaining. Kwesi Aduamoah said he liked the farm and was prepared to buy it. Asani Yaw offered to sell at £G350, Aduamoah agreed but requested that Kojo Egyan, Asani Yaw’s elder brother, should be present before the bargain was completed.
Asani Yaw informed Aduamoah that he was in dire need of money and that he should give him £G40 on account, that is to say, as part payment. Aduamoah did and a temporary receipt was prepared, because, according to this witness, Bernard Acquah alias Kofi Donkoh had no licence as a letter writer to prepare receipts. With the exception of Bahaa who claimed that he was not there at all, they all touched pen and their names were put down as witnesses.
On the following Wednesday, the parties and their witnesses again met at Asani Yaw’s house, this time Egyan the elder brother was present. Egyan, it was alleged, vehemently opposed the proposed sale on the ground that the property was jointly owned but agreed that the sum of £G40 paid to Asani Yaw should be treated as a loan and the farm be given in pledge for the loan.
All the witnesses of the plaintiffs (who incidentally were the persons invited by Asani Yaw) in the main support the evidence of Kwame Addo except they allege that when they were invited they were told that the farm was to be sold to Kwesi Aduamoah.
The evidence given on behalf of the defendant who was not also present when the transaction took place was that after the inspection of the farm the parties bargained and the purchase price was agreed upon. A receipt was prepared for the moneys paid by Bernard Acquah, the parties and their witnesses signed the receipt and thereafter a conveyance was prepared.
[p.37] of [1964] GLR 34
Egyan was at no time present. Asani Yaw later surrendered his title deed, exhibit 1, to Aduamoah.
It seems clear to me that the date in the plaintiffs’ pleadings was changed to 1936, because it is now clear that Bernard Acquah who prepared the receipt was in 1937 a licensed letter writer and the defendant called evidence to this effect. If the plaintiffs had stuck to 1937, the story that because Bernard Acquah had no licence therefore a temporary receipt was prepared would be false.
In order to get at the truth of the matters, it is necessary that the conduct of parties in relation to the property during the intervening years be examined or reviewed.
The plaintiffs’ case was that two years after the alleged pledge they obtained a loan to redeem the pledge, but Aduamoah refused to allow this on the grounds that he had not earned enough profit from the farm. In this connection Esi Beyaa’s version was that Aduamoah alleged that he had not received rum or drink for the loan. The plain fact is, if this story is true, that as far back as 1939 Aduamoah was refusing to accept the sum of £G40. The first plaintiff stated that he reported this matter to the Minister-in-Charge of their area, now Nana Ghartey of Winneba, and solicited his help. Though Nana Ghartey is alive he was not called upon to say what Aduamoah told him, and whether the said gentleman did intervene or not, we do not know.
Esi Beyaa the last witness of the plaintiffs, who if the story of the plaintiffs is true, is a part owner of the land, told the court that after the death of her brothers, that is 1953, she approached Aduamoah to redeem the farm but Aduamoah refused on the ground that he had bought the property. It seems evident that if Aduamoah had not already informed the plaintiffs and their family before 1953, he did so in 1953 or shortly thereafter, that he had bought the property, and yet no action was taken against him for him to surrender the property. The plaintiffs’ first witness who is the successor to Asani Yaw stated he took action against Aduamoah but later discontinued the action.
One central fact emerges that Aduamoah in his life-time refused to surrender the farm and though first plaintiff stated that a pledge can always be redeemed at any time he did not take action to enforce his right.
From the plaintiffs’ own pleadings it is quite apparent that at no time was Egyan present. Paragraph 6 of the statement of claim shows that Egyan heard of the alleged transaction and if the facts averred in the said paragraph are true he attempted to redeem the property but Aduamoah refused. Why should Aduamoah refuse and why did not Egyan take action against him for the redemption of the property?
The answers to these questions are simple, Aduamoah had bought the property; Asani Yaw had handed over his own conveyance to him and in exhibits 2 and 5 had conveyed the property to Aduamoah.
I prefer the evidence of the defendant’s witnesses that at no time was Egyan present; and this is supported by the pleadings of the plaintiffs.
I find also that the negotiation which took place after the inspection of the farm was for a sale and not a pledge and that the moneys paid were for the sale of the property. At no time was there any further meeting.
I accept that evidence of Bernard Acquah that all the parties to the transaction did sign both the receipt and the conveyance and when they did
[p.38] of [1964] GLR 34
they understood the contents and knew what they were doing. I find further that in pursuance of the sale, Aduamoah was put in possession of the farm and had been in such possession since 1941 and that at the date of the death of Asani Yaw he had no interest in the farm to leave to his successor.
Counsel for the plaintiffs has submitted that for the sale to be a valid sale according to custom, the purchaser must firstly find out whether the property is family property or individual property; (b) there must be an inspection of the land; (c) there must be payment of Trama; (d) there must be cutting of the Guaha; and that upon failure to perform any of these essentials, the sale would be invalid.
The short answer to counsel’s submission is that the defendant is not suing to enforce a sale of the land. It is the plaintiffs who have sued that the transaction was one of pledge, therefore even if I find that the defendant’s title to the land is defective by reason of non-compliance of any of these alleged essentials, that finding will not per se turn the transaction from one of an intended sale to that of a pledge.
In my view however the document exhibits 2 and 5 did effectively convey the property to Aduamoah and he went into undisputed possession in pursuance thereof for a period over fifteen years before his death.
It appears to me that this action was started solely because Aduamoah is dead and the plaintiffs had hoped that the defendant, the successor to Aduamoah could not get the necessary evidence. I am more than convinced that had Aduamoah been alive this action would not have been brought.
In the circumstances, I am unable to grant the reliefs sought in the writ of summons and I accordingly dismiss the plaintiffs’ claim and enter judgment for the defendant. Costs assessed at 100 guineas.”
The appeal turns on a question of fact, but we have to bear in mind that it is our duty to rehear the case, and must reconsider the materials before the learned trial judge and the arguments before us. We must then make up our own minds and not hesitate from setting the judgment aside if we come to the conclusion that the judgment is wrong even though the learned judge had the further advantage of hearing and seeing the witnesses and much turned on their relative credibility.
On our own reading of the evidence as a whole and after listening to the exhaustive arguments of counsel we have come to the inevitable conclusion, with due respect to the learned judge, that he arrived at the wrong conclusions obviously by being misled by the defence and particularly by the admission of irrelevant material which in no small measure led to the supposed confusion as to the cocoa farm in dispute.
Firstly, the contention of the plaintiffs that the transaction was a pledge was amply proved by their evidence and such inferences as are to be drawn from it support the claim put forward. In particular the evidence of the defendant’s principal witness, Bernard Acquah, lends conclusive support to the plaintiffs’ case. [His lordship then rehearsed the evidence and continued:]
This evidence clearly supports the plaintiffs’ contention that at the commencement of the negotiations whether for a pledge or an absolute sale the absence of Asani Yaw’s elder brother, Egyan, rendered impossible
[p.39] of [1964] GLR 34
any definite bargain for an absolute purchase. Secondly, the properties comprised in exhibit 5 dated 15 April 1940 and in exhibit 2 dated 30 April 1941, are separate and distinct and clearly the learned judge erred in holding that “exhibits 2 and 5 did effectively convey the property to Aduamoah and he went into undisputed possession in pursuance thereof.” Thirdly, the finding of the learned judge that “Asani Yaw later surrendered his title deed exhibit 1 to Aduamoah” negatives any original intention by the parties to bargain for an absolute sale. Furthermore, there is no evidence of guaha (delivery of seisin) having been cut, and as such nothing was conveyed.
For the above reasons we allow this appeal and set aside the judgment of the court below. Judgment will therefore be entered for the plaintiffs in the terms following:
(1) A declaration that the transaction between late Kweku Asani Yaw of the plaintiffs’ family and late Kwesi Aduamoah, the defendant’s predecessor, in respect of the cocoa farm in dispute described and bounded in the writ of summons and in the statement of claim, was a pledge.
(2) A declaration that the said cocoa farm is the property of the plaintiffs’ family.
(3) An order for recovery of immediate possession.
In the particular circumstances of the case having due regard to the plaintiffs’ undue delay in prosecuting this claim, they have themselves to blame and there will be no order for accounts of the proceeds of the said cocoa farm to be taken. The costs awarded in the court below if paid should be refunded to the plaintiffs who are entitled to their costs in the court below assessed at 200 guineas and in this court fixed at £G73 14s. 0d. to be paid by the respondent. Court below to carry out.
DECISION
Appeal allowed. N. A. Y.
