COURT OF APPEAL, ACCRA
Date: 29 JULY 1975
AMISSAH JIAGGE AND KINGSLEY-NYINAH JJA
CASES REFERRED TO
(1) Bruce v. Attorney-General, Court of Appeal, 25 November 1957. unreported; (1957) 2 G. & G. 105.
(2) Balogun v. Edusei (1958) 3 W.A.L.R. 547.
(3) Bowker v. Williamson (1889) 5 T.L.R. 382.
(4) Blewitt v. Tritton [1892] 2 Q.B. 327; 61 L.J.Q.B. 773; 67 L.T. 72; 41 W.R. 36. C.A.
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(5) Marine Investment Co. v. Haviside (1872) L.R. 5 H.L. 624; 42 L.J.Ch. 173, H.L.
(6) Kodilinye v. Odu (1935) 2 W.A.C.A. 336.
NATURE OF PROCEEDINGS
APPEAL from the judgment of Griffiths-Randolph J. in two consolidated land suits, wherein declarations of title to land, damages and injunctions were granted in favour of the respondents. The facts are sufficiently stated in the judgment of Amissah J.A.
COUNSEL
U. V. Campbell (Ampiah with him) for the appellant.
Tsegah for the respondents.
JUDGMENT OF AMISSAH J.A.
The appellant in these consolidated cases, Samuel George Ricketts, complains of a judgment of Griffiths-Randolph J. by which declarations of title were made, and damages awarded and injunctions granted in favour of the respondents who were plaintiffs in these two consolidated cases. For convenience I shall hereafter use the titles of the plaintiffs and the defendants which the parties had at the trial. The land in dispute is part of a larger area known as Hemang lands. And there is no question about the fact that originally these lands were owned by two persons: Francis Wood and Joseph Ellis. Their title was that of tenants in common. By the time that the plaintiffs came to acquire their alleged interest in the land both Wood and Ellis had long been dead and the land had devolved on their respective families. Originally the plaintiffs had brought their actions against one J. Otoo Ellis, a son of the original Ellis who it was alleged had instigated and encouraged the trespass on the plaintiffs’ lands but by the time the case was heard, Otoo Ellis had died and the defendant, Ricketts, was substituted for him. It is one of the complaints of the defendants that the learned judge did not give separate consideration to each of the consolidated cases as he should have done. The first of the grounds of appeal argued was that these cases being consolidated, the judge ought to have made clear findings of fact in each case to determine whether the plaintiffs had succeeded or not. A reading of the judgment lends support to the charge that the learned judge did not consider the cases separately. That, however, does not necessarily mean that his conclusions were wrong. But whether that charge is well founded or not, we ourselves would be falling into a similar error if we do not from this stage look at the merits of the cases separately.
The case which Kobina Addo and his group set out to prove was that they had bought the land they described from the Wood and Ellis families headed by Janet A. Arthur, the administratrix of Francis E. Wood and Ben Dennis, the administrator of Joseph Ellis, and with the consent and concurrence of the principal members and elders of the two families. That after the payment of the purchase price and the necessary trama or guaha the said piece or parcel of land was conveyed to them according to custom in 1937. That since that year they had been in possession of the land to the knowledge of the two families of Wood and Ellis. They made large cocoa farms and planted rood crops on the land. Otoo Ellis, it was alleged,
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was as a member of the Ellis family aware of the sale of the land and had seen the respondents working on it for several years without challenging them. Then he unlawfully sent his servants and agents to the land in dispute to cut down the growing cocoa trees and crops. Otoo Ellis, according to this allegation admitted having authorised these servants and agents, some of whom were still working on the land when action was brought. All this was contained in the statement of claim of the plaintiffs, Kobina Addo and his group. In his defence, Otoo Ellis denied knowing any of the plaintiffs or having any business dealings with any of them in respect of the Hemang lands.
The plaintiff Kobina Addo himself gave evidence in support of this claim. According to him the purchase from Ben Dennis, J. A. Arthur, Janet Arthur and Mrs. Ricketts was some 34 years prior to his appearance in court as a witness. His group had paid £714 as purchase price including trama to the vendors at the office of Mr. Myles Abadoo, the lawyer, and had obtained a receipt for the payment. Further, he produced in evidence a document dated 28 April 1954, signed by one Ekua Yamidom (she was otherwise described as Nyamedom in the proceedings) who described herself as “trustee beneficiary” and S. W. Duncan who described himself as “attorney for the estate of the late Francis Emmanuel Wood (deceased) (beneficiary).” The document recited that the signatories and the successors of the late Francis Emmanuel Wood, of Cape Coast, deceased, agreed that Kobina Addo (described as “Ardu” in the document) and three other men all of Akwapim State were purchasers of a portion of the Hemang Estate. Then the document concluded that they “should continue occupying the portion of the said Hemang Estate purchased from J. E. Arthur, Janet Arthur, Mrs. Ricketts, and Ben Dennis of Cape Coast and Saltpond respectively for the sum of seven hundred and fourteen pounds sterling (£714) including ‘trama’ in accordance with native customary law, the said land being portion of the said Hemang estate owned by the late Messrs. Francis Emmanuel Wood and J. E. Ellis deceased of Cape Coast.”
Kobina Addo stated that after the purchase his people went on to the land, made cocoa farms and built some 30 hamlets on it. His evidence was supported by two witnesses. One was Eddie Asante who said he had accompanied Addo when payment for the land was made and spoke of the demarcation of the land taking some seven weeks and finally claimed to have got a portion of the land from Kobina Addo which he had cultivated and quietly enjoyed for some ten years before giving his evidence.
The defendant Ricketts’ evidence did not meet any of the matters raised in evidence. He claimed total ignorance of practically everything. His excuse for this being that he had been away from the country for a considerable while. But it is incredible that having succeeded to the action by virtue of his being a customary successor and that his standing being entirely due to his ability to protect the family property, he should be so completely innocent of the affairs which have led to this suit. I find it extraordinary that he should with any semblance of right adopt that
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position with impunity having regard to the fact that in family affairs in this country, tradition is recognised as the means of informing members of their rights and duties and traditional evidence is admitted as an exception to the hearsay rule. Though learned counsel conceded that traditional evidence was admissible in this country, he submitted that it could not be received in this case because the defendant Ricketts was alive in 1937 when the alleged transaction was supposed to have taken place. By this, I understand counsel to say that the relator of tradition may testify only to such matters as occurred before he was born. I do not accept that traditional evidence is circumscribed by any such rule. A reading of the principle as set down by Redwar in his Comments on Some of the Ordinances of the Gold Coast Colony (1909) at pp. 86-88 does not disclose the limitation put forward. Nor do the cases. Indeed Bruce v. Attorney-General, Court of Appeal, 25 November 1957, unreported, but reproduced in Gyandoh and Griffiths, A Source Book of the Constitutional Law of Ghana (Vol. II (Part 1) at pp. 105-109), flatly contradicts the proposition. It will be recalled that there an uncle of the plaintiff had been called as a witness who testified to the plaintiff s place of birth as Abolove. The trial judge held this to be inadmissible as hearsay because the uncle said “his nephew’s birth was reported to him in Accra by the father, his brother.” The Court of Appeal held that he was wrong in this, and referred to the situations mentioned by Redwar where evidence of reputation was receivable. These according to Redwar were “cases relating to pedigree, inheritance, boundaries of the land, etc.” I would include amongst these family land transactions. It would otherwise be impossible for a successor to maintain or resist claims to fwnily land if the tradition amongst their family were not included under this head. The traditional history of communities and families as part of the evidence in land title cases has as a result always been one of the commonest forms of evidence given in our courts. The traditional evidence given in Bruce v. Attorney-General, was held admissible in spite of the significant fact that what the witness testified to had happened during his lifetime. (See also the case of Balogun v. Edusei (1958) 3 W.A.L.R. 547.) The usefulness of the rule on traditional evidence would be unwarrantably curtailed if it were to be subjected to the limitation urged on us by counsel.
In the circumstances, the position adopted by the defendant at the trial, i.e. ignorance of material facts which could help resolve the issues in dispute was bound not to impress a court in his favour. The learned judge quoted a long extract of this extraordinary evidence in his judgment. We are equally struck by the emptiness of the defence evidence. In this court, the defendant’s trust has therefore been put entirely in technical legal points. The first which in his situation he needs must make is that the plaintiffs cannot depend in an action for a declaration on the weakness in the defence case but must rely entirely on the strength of their own case in order to succeed. Of this more will be said later.
One other point made was that the Hemang Estate being land held by both the Wood and Ellis families as tenants in common ought to have
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been alienated if at all by both families and that there was no evidence that the Ellis family was a party to this sale. The point was raised in the cross-examination of Kobina Addo who insisted that he dealt with both families during the sale and that the Ellis family was represented by Mrs. Ricketts and Den Dennis. In this appeal that same point was again made. But the defendant in his otherwise negative and arid evidence admitted Mrs. Ricketts was his mother. If he was connected with the Ellis family so, in an Akan society as he obviously comes from, must have been his mother. And in any event he admitted even though grudgingly that Ben Dennis was the administrator of the estate of Ellis, the original co-owner of the Hemang lands at the material time of the sale. In view of these admissions the allegation that the Ellis family did not participate in the sale cannot be accepted.
There was some evidence that the Omanhene of Twifu Hemang was appointed some sort of overseer over the Hemang Estate and that in about 1962 he called the plaintiff, Addo, and his people to ask them to pay rent. Naturally they refused. Having been in occupation of the land since 1937 without interference, if their evidence is true, and there is nothing on record to gainsay that, they would of course resist any attempt to convert their rights into something adverse to them.
By far the most substantial point made on the defendant’s behalf in this appeal was that the court admitted and relied upon documents put in by the plaintiffs which were obviously unstamped receipts which could not according to the law be received in evidence. These were exhibits F and G. Exhibit F is the document dated 28 April 1954 signed by Ekua Yamidom and S. W. Duncan to which I had adverted earlier. It does not on the face of it purport to he a receipt but the definition of a receipt in the Stamp Act, 1965 (Act 311), is very wide and could be said to include it. Section 46 (1) says:
For the purposes of this Act, ‘receipt’ includes any note, memorandum, or writing whatsoever, whereby any money amounting to two cedis or upwards, or any bill of exchange or promissory note for money amounting to two cedis or upwards, is acknowledged or “pressed to have been received or deposited, or paid, or whereby any debt or demand of the amount of four cedis eighty pesewas or upwards, is acknowledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment, whether the same is or is not signed with the name of any person.”
One can hardly imagine any writing which states that money of the requisite amount has been paid by one person to another which will not quality as a receipt under this definition. It is incredible that every possible document in which a statement of a payment of a sum of two cedis and above is made should require the prescribed adhesive stamp before it is admitted in evidence. But so the Act seems to say. The definition to me, seems overly broad and may require scrutiny in appropriate cases. However, that may be, this exhibit F as well as exhibit G which is headed “copy of original receipt” appear squarely caught by this definition. Section 14 (5) of the
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Act as substituted by the Stamp Act, 1965 (Amendment) Decree, 1967 (N.L.C.D. 160), para. I provides that:
“Save as otherwise expressly provided in this section, any instrument executed in any part of Ghana or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of Ghana, shall not, except in criminal proceedings, be given in evidence, or be valuable for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed, in the proportion to which the value of the property situate in Ghana stands, with that of the whole of the property covered by the instrument.”
It cannot be said to be the most happily phrased provision. But clearly the subsection requires instruments to be stamped in accordance with the law in force at the time when they were executed. That law with respect to these receipts was the Stamps Ordinance, Cap. 168 (1951 Rev.). It made a receipt, a word which more or less bore the same definition then as now, liable to a duty which might be denoted by an adhesive stamp, which was to be cancelled by the person by whom the receipt was given before be delivered it out of his hands. Otherwise, it might be stamped with an impressed stamp within 28 days after it had been given on payment of the duty and a penalty of one pound. After 28 days, but within three months, after it had been given, the receipt might be stamped on payment of the duty and a penalty of five pounds. The Ordinance finally said that a receipt “shall not in any other case be stamped with any impressed stamp” (see sections 53 and 54). If these exhibits require stamping, then no doubt, the time for that act has long since passed. In these proceedings no objection was taken by the defendant to the introduction of the now challenged documents. But it has been held that stamp objections are for the court to take and cannot be waived by the parties; see Bowker v. Williamson (1889) 5 T.L.R. 382. Indeed section 14 (1) of the Stamp Act places the duty upon the judge to take notice of any omission or insufficiency of the stamp or any instrument produced in any court. Here the judge did not advert to the question of stamping at all and as no objection was raised he admitted the documents in question. Had the learned judge brought his mind to bear on the subject and ruled that the documents for one reason or another did not require stamping, that would have been a different matter for there is some authority to the effect that the ‘ruling of a trial judge on a stamp objection is final: see Blewitt v. Tritton [1892] 2 Q.B. 327, C.A. I am not here saying that that should necessarily be the answer in Ghana. I merely point out that the case for refusing to re-open the issue of stamping on this appeal would have been stronger. There was no such ruling in this case. And as the Act makes it mandatory that such instruments be excluded from evidence in a civil case, I think we are bound to give effect to it. That means that exhibit F at least must be excluded.
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With respect to exhibit G, some different considerations may apply. It Purports to be a copy of an original. And though its genuineness had been attacked in this court, that attack is irrelevant to this point, no objection having been raised to it when it was tendered in the court below. From a look at this exhibit, it cannot be a photostat of the original. It is merely a copy, the original being lost. As to this there is a presumption, albeit rebuttable, that the original was duly stamped: see Marine Investment Co. v. Haviside (1872) L.R. 5 H.L. 624. As there was no rebutting evidence of any sort at the trial the presumption ought to prevail and exhibit G should not be excluded.
But assuming that both exhibits F and G are excluded, does it make the case of the defendant any better? There is evidence from Kobina Addo and his witnesses that they bought the land from representatives of both the Wood and Ellis families; they have been in uninterrupted occupation of the land since 1937; they have made several farms and built villages on it. Against this there is nothing except a plea of innocence of all facts from the defendant, who would wish us to say that however poor or non-existent his case, the principle we should apply is that the plaintiff in a case for declaration of title should not rely on the weakness of the defendant but on the strength of his own case. That principle, enunciated in Kodilinye v. Odu (1935) 2 W.A.C.A. 336, has its simplest application in the situation where a plaintiff cannot on his own make out a case of his title at all and relies on the defects in the defendant’s case to justify his claim to title. But that cannot be the common type of land dispute before our courts. The case we usually meet is one where the plaintiff can put forward some sort of claim to title, the principle then has meaning in practical terms if the defendant has some semblance of a claim to the land (for example, by occupation or possession), which the plaintiff seeks to recover by virtue of his alleged title to it. Whatever the defects in the defendant’s title, the plaintiff cannot rely merely on them; he must rely on the superior strength of his own title. It should however not be forgotten that the burden of persuasion which a plaintiff has to satisfy in every civil case is no more than proof on a balance of probabilities. In a trial involving title to land like any other civil trial, therefore, if the defendant’s case is measured against the plaintiffs and the plaintiff s is found more probable, a determination which necessarily involves the balancing of the strengths and weaknesses of the rival claims, the plaintiff s case has to be accepted. In this assessment of claims, the judge will have to examine the weakness of the defence just as he has to examine the weakness of the plaintiff s claim The legitimacy of this exercise or of the plaintiffs assistance to the court in highlighting those weaknesses cannot be questioned.
In the face of the evidence in the case before us of purchase, occupation and development of the land, the following evidence from defendant, who did not know how the plaintiffs came to the land, is significant: “
Q. Do you know that the plaintiffs herein have been occupying a substantial part of Hemang Estate for the past 33 years?
A. I know.
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Q. Do yon know that they have cocoa farms, food farms, buildings with schools, etc. there?
A. I have heard same in this court several times.
Q. Have you been to see their farms, etc. ?
A. I passed through cocoa farms and houses, etc. belonging to the plaintiffs.”
It seems to me inconceivable that the owners of the Hemang Estate would wait for so long and tolerate the developments spoken of by the plaintiffs and agreed to by the defendant if the plaintiffs had not acquired the land legitimately from them, The exclusion of the receipts therefore will not in MY judgment destroy the case made by Kobina Addo and his group.
Turning to the Kobina Borbor case, the evidence from the plaintiffs’ side was that he and a group of others bought the land from J. E. Arthur and Ekua Nyamedom in 1935. The price was £1,095. It was not clear whether this whole amount has been paid or that there is something still outstanding to be paid. But the evidence is that unlike the Addo case, where the price was paid outright, here it was paid in instalments. A number of receipts was exhibited in support of payments made between 1935 to 1954 for the land. Counsel does not make the stamping point as to these and an examination of the exhibits shows most of them duly stamped. Over 200 villages have been built by the plaintiffs’ people on the land on which they said they were without interference until 1963 when the defendant’s predecessor, Otoo Ellis authorised others to enter onto the land. The evidence of the defendant about himself seeing the plaintiffs’ farms equally applies to this case. The plaintiffs called a witness who testified to being present at the sale and who, when he gave evidence, said that he himself had been on the land for 35 years. Another grantee from Borbor, who had been farming on the land for 35 years, Paul Owusu, gave evidence.
The complaint of the defendant in this case is that there was no evidence that members of the Ellis family had joined in the sale of the land to Kobina Borbor and his group. The land today has been apportioned between the Ellis and the Wood families. That apportionment took place in 1952. So the defendant says that at the time of the alleged purchase by Borbor in 1935 both families were tenants in common and neither could alienate any part of it without the consent of the other. If there had been such a purported alienation, it was invalid and no rights arose therefrom. Of course from 1952, the Wood family alone was competent to dispose of the land falling within its allocation but then if the plaintiffs were to take advantage of this or the fact that since the Wood family acquired this capacity they bad confirmed the earlier sale, they ought to have shown that the land they took fell within this Wood allocation. But that, according to the defendant, they failed to do. There is a lot of force in this argument. It is a feature which distinguishes the Borbor case from the Addo case that the land here was originally taken from members of the Wood family alone.
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Kobina Borbor however called as a witness one Yaw Atta, who also with a group bought land in the Hemang Estate from the children of Wood alone, and had since bad to suffer encroachments on their land at the instance of Otoo Ellis. They took action to assert their title and the Archer J. (as he then was) in 1968 gave them exhibited. In it Archer J. discusses the confusion and disarray between the Ellis and the Wood families for a long time over this Hemang Estate until they found a common cause m opposing the Arthurs, the children of Wood. That case before Archer J. was weaker than the present in two respects: the learned judge found that the purchase was not even from the Wood family as such but from the Arthurs whose claim to an undivided share of the estate was dependent on the will of Wood. It is true that after 1954 Akua Nyamedom and Duncan, members of the Wood family confirmed the sale but this does not change the fact that the land disposed of was not found to be within any specific allocation of the Arthurs. Secondly, unlike this case where no real defence was offered as to the alleged trespass in the evidence, that case from the judgment had the evidence of Otoo Ellis himself and an exhibit put in by the defence showed that Samuel Duncan, whom we have heard of as coming from the Wood family, bad in 1957 joined forces with Otoo Ellis to grant a tenancy to one of the defendants in the action. That grant failed in the judge’s view for vagueness. But it does show an attempt by that defendant at least to meet the case against him. In this present case, as already stated, the evidence of Ricketts, the defendant, was just a plea of ignorance.
The plaintiffs in Kobina Borbor’s case made out their claim that they bought the land in 1935 from the Wood family. Though that family was not in law able by itself to convey title to the purchasers, the land in question, the Hemang Estate, being held in common with the Ellis family, the evidence shows that there has been a history of dispositions of the estate by the Wood family and by the children of Wood to the knowledge of the Ellis family. The plaintiffs established their case that they bad been in undisturbed possession of land from 1935 until 1961 or 1962 when the omanbone of Twifu Hemang who bad been appointed bailiff-tenant asked them to pay rent but they refused. If the plaintiffs’ title was defective as not having the concurrence or consent of the Ellis family, that family would have taken steps to eject them or to rectify their position long before the cause of this action arose. The fact that the Ellis family did not, is itself indicative of their acceptance of the Wood family’s ability to dispose of and their practice of disposing of portions of the land. This was not a small area of land. It was land on which hundreds of villages and farms had been made. These were shown on the plans exhibited in the court. Learned counsel submitted that the sole basis of the plaintiffs’ case was the purchase and that the possession was only incidental to the purchase. If, therefore, the validity of the sale was successfully impugned everything else went with it. I do not accept this view in the circumstances
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of this case. The plaintiffs pleaded both the purchase and the possession. Though the possession was a necessary consequence of the purchase I do not think that 30 years of possession and development is rendered nugatory by a technical defect in the sale. That defect was cured by the long possession of the plaintiffs in circumstances which showed that the only party whose objection could have put the plaintiffs on their inquiry and have caused them to take measures to rectify matters if they were not to be forced out of the land, knew of the transaction but raised no objection. It is a clear case of constructive concurrence -in and acceptance of the sale by the Ellis family.
In 1952 there was the partition of the land which enabled each of the families to dispose of its own portion of the estate. Counsel for the defendant has said that for the plaintiffs to succeed they should show that their land fell within the Wood enclave. I would say that in the face of the evidence the presumption is that it did. Had it fallen in the Ellis allotment they would have takes immediate steps to assert their authority. They did not The burden therefore shifted on the defendant to show that the plaintiffs’ land did not fall in the Wood enclave and to explain why they bad remained silent over its disposition for so long. Of course, consistent with the general tenor of this evidence, the defendant would not know about this. In any case he did not give any evidence on it. I take the view from the evidence, that the plaintiffs have a genuine valid title to the land and they must retain the declarations granted them.
What the defendant is now seeking to do in the two consolidated cases is to disturb peaceful settlements dating from 1935 and 1937 respectively by the exploitation of technical legal arguments. He has marshalled a number of highly technical legal points to bolster up an otherwise totally unmeritorious case. I do not think this court should lend its assistance to that endeavour. I would dismiss the appeal in respect of both cases.
JUDGMENT OF JIAGGE J.A.
I agree
JUDGMENT OF KINSLEY-NYINAH
I also agree.
DECISION
Appeal dismissed.
S.Y.B.-B.
