SUPREME COURT, ACCRA
DATE: 12TH MARCH, 1962
BEFORE: VAN LARE, SARKODEE-ADOO AND CRABBE, JJ.S.C.
CASES REFERRED TO
(1) Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24, P.C.
(2) Hooper v. Goodwin (1818) 1 Swan. 485; 36 E.R. 475
(3) Matonmi v. Bakare Ibiyemi (1953) 14 W.A.C.A. 390
(4) Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361
(5) Nkyi XI v. Kuma (Bedu substd.) [1959] G.L.R. 281
(6) Asher v. Whitlock (1865) L.R. 1 Q.B. 1
NATURE OF PROCEEDINGS
APPEAL from a judgment of Ollennu J. in the High Court, Accra, reported at [1960] G.L.R. 68 allowing an appeal from the decision of the Manya Krobo Court “A” delivered in the defendant’s favour in an action by the plaintiff for damages for trespass to land and an injunction. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
Hayfron-Benjamin with him Olaga for the appellant.
W.E.A. Ofori-Attah for the respondent.
JUDGMENT OF CRABBE J.S.C.
This is an appeal by the defendant from a judgment of Ollennu, J., sitting in the Land Division of the High Court of Justice dated the 29th March, 1960, which allowed an appeal for the decision of the Manya Krobo Court “A” Division, dated the 3rd June, 1959.
The dispute between the parties concerns a piece of land situate at a place called Akatawiah. The plaintiff by her writ of summons claimed damages for trespass, and an injunction restraining the first and second defendant, their servants or agents from committing further acts of trespass on the land at Akatawiah. On the application of third defendant he was joined to the suit by an order of the trial native court, dated the 3th April, 1959.
The plaintiff claimed title through her grandmother, one Maku, deceased; the defence on the other hand appears to be that the land, the subject-matter of the dispute, is one rope out of three ropes of land which was purchased by one Tettey Djokobre, the father of both Maku and Tettey Yohuno, and which the said Djokobre gave to his son Tettey Yohuno as a gift. The defendants contended further that Maku occupied that land with the leave and licence of her brother the said Tettey Yohuno.
It would appear therefore on a cursory examination of the evidence for the defendant that the title of the plaintiff was put in issue at the trial even though the claim was one of trespass. In Kponuglo & Ors. v. Kodadja1(1) a judgment delivered by the Judicial Committee of the Privy Council 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
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upon him of demonstrating beyond reasonable doubt that the title to the disputed land is in him? The appellants say — Nay; the respondents say —Aye.”
The trial native court in a judgment of only three paragraphs, and without evaluating the documentary and oral evidence, held as follows: “Upon hearing evidence adduced on record with the plaintiff’s exhibits and witnesses, the plaintiff had failed to establish her title of ownership over the land”. It therefore entered judgment for defendant but made no order as to costs.
The plaintiff stated in her evidence that her grandmother’s father Tettey Djokobre, deceased, bought land at Akatawiah and shared it among his three children Tettey Yohuno, Tetteh Simpim and Maku. The plaintiff’s grandmother received a share of one rope of the land and this was the subject-matter of the dispute. The plaintiff said that her grandmother built a house on this land and lived there with her children until her death. On the death of Tettey Yohuno, however, his children attempted to claim, against the advice of their uncle Tetteh Simpim, the one rope of land at Akatawiah which was given to Maku. The plaintiff’s grandmother immediately brought an action in 1929 against the predecessors of the defendants to establish her title to this land and the Paramount Tribunal of Manya Krobo declared as follows in a judgment, exhibit A, which is remarkable for its brevity: “In this case it was found that Maku is entitled to one rope which was given to her by her father so judgment is given for Maku for one rope and the defendants have to pay the costs of this case.”
Sometime in 1945 Maku pledged this land to one Ga man for the sum of £15, and one Djogobli Djobla brought an action challenging Maku’s title and the validity of the pledge. By the judgment of the Native Court “B” of Odumase, Manya Krobo State, (exhibit B), Maku’s title to the land now in dispute was confirmed.
According to the plaintiff she took a keen interest in this land and with the consent of her grandmother she redeemed the land after paying to the pledgee the sum of £15 which was due and owing. Consequently, the plaintiff said, Maku made a document (exhibit C) in which according to her she was to become the owner of the land after Maku’s death. It appears from the evidence that on the death of Maku, the plaintiff took possession of the land and for nine years before she brought this action she had remained on this land making farms and tapping palm trees. It was this same land that the first and second defendants invaded on the authority of the third defendant and thereby caused damage to the plaintiff ‘s crops.
On appeal to the Land Division of the High Court of Justice the learned judge held, and rightly in my view, that exhibits A and B establish beyond doubt the title of Maku to the land in dispute and the native court should have found that the defendants are estopded by those judgments from re-opening the issue of title and from denying Maku’s ownership of the land in dispute. On the issue of the plaintiff’s own title the learned judge made the following observations: “On the issue of her own title the plaintiff had two strings to her bow; they were:
(1) that the land became vested in her by virtue of a will in accordance with customary law, made in her favour by her grandmother Maku, and
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(2) that in any event, her grandmother Maku, made a gift inter vivos of that land to her, and had placed her in possession of it, and she has been in undisturbed possession since the date of the gift many years ago, and her labourers have been farming it for her until her possession was disturbed by the defendants’ entry upon the land.”2(2)
After examining the evidence on each of the two issues raised the learned judge held that as regards the first issue exhibit C is invalid in so far as it does not comply with the essential requirements of a valid customary will. Consequently he held that the plaintiff failed to prove her title as based upon the customary will. In my view the conclusions arrived at by the learned judge on this issue are well-founded.
On the second issue the learned judge said: “As to the gift inter vivos, there was not sufficient evidence that the alleged gift was made with the publicity which customary law requires to make such a gift valid. But there was strong evidence that the donor, as soon as possible after the gift, published to the principal members of her family (including the head) that she had made the gift to the plaintiff. Further there is sufficient evidence that the plaintiff was in possession of the land for some years before the death of the donor Maku, and that since the latter’s death the plaintiff’s possession has never been disturbed or challenged by Maku’s family, in whom by customary law Maku’s self-acquired property (if still hers) would become vested in the event of her death intestate. The acquiescence of the head and principal members of Maku’s immediate family in the plaintiff’s continued possession and occupation of that land is strong circumstantial evidence which corroborates the plaintiff’s oral evidence of a gift inter vivos.”3(3) In this appeal the following grounds were argued:
“(a) That the plaintiff did not prove her alleged gift of the land, and should therefore not have judgment as given her by the learned judge of the Land Court.
(b) That there is overwhelming evidence that the land was a family property and not personal property of the plaintiff as claimed, and therefore she has no right to bring an action for the land subject-matter of the suit.
(c) That the judgment of the learned land judge is not supported by the evidence before the court.
(d) That the learned judge misdirected himself by wrongly holding that plaintiff’s witness was the head of Maku’s family and thus accepted plaintiff ‘s witness No. l’s evidence as against the defendants-respondents’ and thereby came to wrong conclusion to which he would not have come, had he known that plaintiff’ witness was not the head of family.”
Mr. Hayfron-Benjamin argued grounds (a) and (c) together and submitted that there was no need to prove a gift, and also that in view of the learned judge’s finding that exhibit C was an invalid customary will and therefore not capable of conferring title, his finding that the preponderance of evidence on the record is in favour of gift to plaintiff by Maku is palpably wrong. In view of the importance which the learned judge attached in his judgment to a gift inter vivos and the submissions of counsel for the appellants, it is, I think, necessary to consider briefly the juristic concept of a gift inter vivos. A gift inter vivos is a voluntary and gratuitous transfer of any property from the donor to the donee. The transfer is usually with the clear intention that the thing shall not return to the donor and also with the clear intention that the donee shall obtain absolute dominion over the thing to the exclusion of the donor himself and all other persons. No gift inter vivos of a chose in possession can be effective, in the absence of a deed of gift, without delivery. In Hooper v. Goodwin4(4) Sir Thomas
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Plumer, M.R., said: “A gift at law, or in equity, supposes some act to pass the property: in donations inter vivos… if the subject is capable of delivery, delivery”.
In his work on Fanti Customary Laws, Sarbah at pp. 80-81 describes the nature of a gift (inter vivos) and the conditions necessary for its validity. He writes: “Gift consists in the relinquishment of one’s own right and the creation of the right of another, in lands, goods, or chattels, which creation is only completed by the acceptance of the offer of the gift by that other … To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor, who has power so to do, is necessary.
The acceptance of such gift by the donee must be made in the life-time of the donor. The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits of . . . The acceptance of a gift may be made publicly or privately having regard to the nature of the gift; but the acceptance of a gift, consisting of immovable property, must be invariably made with as much publicity as possible. Acceptance is made—
(i) By rendering thanks with a thank-offering or presents, alone or coupled with an utterance or expression of appropriating the gift; or
(ii) Corporal acceptance, as by touching; or
(iii) Using or enjoying the gift; or
(iv) Exercising rights of ownership over the gift.”
To claim land as a customary gift enter vivos, therefore, it must be established, quite apart from the usual customary formalities, that (1) the gift was voluntary and gratuitous; (2) that the gift was made in the lifetime of the donor; (3) there was a full intention that the land shall remain the property of the donee without restoring it to the donor; and (4) that the donee accepted the gift and went into possession of the land, either physically or constructively, during the life-time of the donor.
In his judgment the learned judge after holding that there was “strong circumstantial evidence which corroborates the plaintiff’s oral evidence of gift inter vivos” said: “The preponderance of evidence on the record in the instant case is that plaintiff acquired title to the land upon a gift of it made to her by Maku”.5(5) With all due respect to the learned judge I think that his conclusions are erroneous on the issue of a gift inter vivos to the plaintiff, and in this appeal Mr. Hayfron-Benjamin has submitted seriously that the judgment of the appellate judge cannot stand the test of law. Before any of the tests stated above can be applied to the case of the plaintiff it would be necessary to consider whether there was any gift by Maku to the plaintiff. This was exactly the first of the two strings which according to the learned judge the plaintiff had to her bow. In answer to this question the learned judge stated without any equivocation whatsoever that in his opinion that document, exhibit C, cannot be acted upon in the determination of the plaintiff’s title to the land. Consequently he held positively that the plaintiff failed to prove her title as based upon the customary will. It follows therefore that the plaintiff’s case could not satisfy the legal tests stated above, and in my view the expressions of the learned judge about plaintiff’s continued undisturbed possession and acquiescence of the head and principal members of Maku’s family as evidence corroborating plaintiff’s evidence of a gift inter vivos are utterly irrelevant, especially for the purpose of corroboration.
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Indeed, the second witness for plaintiff, a principal member of her family, said categorically in his evidence that Maku remained on the land in dispute until her death. This conduct of Maku is inconsistent with the making of a gift inter vivos, because an essential attribute of a gift inter vivos is that the donee must enter into possession during the life-time of the donor. In other words the gift must be accepted.
It was therefore submitted by Mr. Hayfron-Beniamin, no doubt on the authority of Kponuglo & Ors. v. Kodadja (supra), that the plaintiff having failed to prove a title in her, the defendants were entitled to judgment. But in my view the principle in Kponuglo & Ors. v. Kodadja (supra) always postulates that the defendant who puts the plaintiff’s title in issue in an action for trespass must himself on his evidence be able to make a bona fide claim of title. It would be a monstrous principle that a plaintiff in continued and undisturbed possession of land can be ousted by a defendant who merely sets up a fictitious and bogus title to the same land; it would, indeed, set at nought the legal maxim melior est conditio possidentis ubi neuter ius habet or the time-honoured phrase possession is nine points of the law”. In my opinion the real test in each case in an action such as the present one is whether a bona fide issue of title was raised or could genuinely be raised by the defendants at the trial (see Laode Matonmi v. Bakare Ibiyemi & 4 Ors.6(6) per Coussey, J.A.).
It is trite law that in suits before native tribunals where there are no pleadings, the real issues for trial are ascertained by reference to the evidence in the case and not by looking merely at the claim on the writ of summons. On a perusal of the evidence as a whole the facts which emerge as to title are that the plaintiff claims through Maku whilst the defendants claim through Tettey Yohuno, father and uncle of the defendants. It is quite clear from the evidence that after the death of Tettey Yohuno some members of Tettey Djokobre’s family, the common ancestor of the parties, attempted to dispossess the late Maku of the land which she received from her father. The late Maku established her right to ownership to the land in dispute in the native tribunals , and in this case the plaintiff tendered in evidence exhibit A and exhibit B, which are proceedings and judgments of tribunals of competent jurisdiction and which provide conclusive proof of Maku’s title to the land. These judgments are binding upon the parties in this present suit. The defendants are therefore estopped by these judgments from relitigating the issue and denying Maku’s title to the land, the subject-matter of the present dispute. Consequently the defendants in this case could not have raised a genuine issue of title to the land in dispute.
In Laode Matonmi v. Bakare Ibiyemi & 4 Ors. (supra) the plaintiff sued the defendants claiming damages for trespass and fruits collected and averred that the first and second defendants who trespassed through the other defendants as their servants, had sued him earlier in the native court claiming title to the land but had failed. The defendants denied the plaintiff’s claim and also averred that at some earlier time the plaintiff went upon the land in their possession whereupon the third, fourth and
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fifth defendants drove the plaintiff away. The action was commenced at the magistrate’s court and judgment was entered for the plaintiff. The defendants appealed and it was contended that the magistrate overlooked the point of jurisdiction when the pleadings of the defendants raised a bona fide question of title. It was held by the West African Court of Appeal on this issue that the effect of the judgment in the earlier action was that the defendants were estopped from re-litigating the title to the land and that the plaintiff was in possession; therefore the defendants could not have raised a genuine issue of title. This case followed the decision in an earlier case, Ajaka Izenkwe v. Onyemuche Nnadozie,7(7) where Coussey, J.A. stated the position with his usual clarity of expression: “It is clear from the earlier litigation that the issue of title had been settled. No issue of title appeared on the face of the pleadings and no bona fide claim of title was raised or could genuinely be raised at the trial. The action was as much a suit in personam as an action for damages for nuisance to property and for an unjunction to restrain the nuisance. It would be a farce to oblige the plaintiff upon each trespass to re-establish his title to the land.”8(8)
The position therefore is that both plaintiff and defendants cannot establish title to the land in dispute and the law governing the relationship between the parties appears to me to be that stated concisely by van Lare, J.A. (as he then was) in Nkyi XI v. Kumah (Bedu substd.).9(9) He said: “The proper statement of the law is that ‘mere possession is sufficient to maintain an action for trespass against any one who cannot prove a better title’. What the expression ‘one who cannot prove a better title’ means is, ‘one who cannot avoid the effect of the plaintiff’s possession by showing that notwithstanding the actual possession by the plaintiff, he (the defendant) had a better right to the land’ per Denman, C.J. in Whittington v. Boxall (1843) 12 L.J.Q.B. 318, 114 E.R. 1201 at 1203); cited with approval in England v. Palmer (14 W.A.C.A. 659).
‘The true owner’ must therefore be interpreted to include a defendant who claims a right to possession as a grantee, a tenant, a licensee, or one having permission of the person in whom it is shown, upon the evidence, that the legal title in the land is vested. It is only a defendant pleading jus tertia ( i.e. that title is vested in neither the plaintiff nor himself, but in some third party through whom he does not claim) who cannot resist the effect of proof of the plaintiff’s possession. It is in such cases, and such cases only, that a claim in trespass puts nothing more than possession in issue.”
In this case the evidence in support of the plaintiff’s continued and undisturbed possession of the land after Maku’s death is overwhelming. It is obvious that the plaintiff was in possession at the time of the defendant’s encroachment. In these circumstances the onus was on the defendants to establish a right to possession of the land in dispute. They failed to establish such right and their entry on the plaintiff’s land having been proved to be wrongful the plaintiff should have judgment.
In Asher v. Whitlock10(10) Cockburn, C.J. said: “I take it as clearly established, that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine”. I am impelled to hold that the submissions made by Mr. Hayfron-Benjamin as to title are not fatal to the plaintiff’s case and I would therefore dismiss this appeal.
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JUDGMENT OF VAN LARE J.S.C.
I would also dismiss the appeal not on the ground that the plaintiff had succeeded in establishing her title to the disputed land as the learned judge of the Land Court would have it, but rather on the ground that the plaintiff had succeeded in establishing that the defendants had no right to interfere with the actual possession as they showed no better right to the possession of the land than herself. I accept the arguments on behalf of the defendants that the plaintiff’s reliance on a gift inter vivos in support of the title she put forward is not supported by the evidence especially in view of the fact that the alleged donor, Maku, plaintiff’s grandmother, continued as owner in possession until her death. In such circumstances Maku could not have been deemed to have divested herself of her title and interest in the land during her life-time.
On the other hand, the evidence clearly shows that since the death of the owner, Maku, the land came into exclusive possession and occupation of the plaintiff with the implied consent of the members of both the ancient and immediate families of Maku. Upon Maku’s death the disputed land became family property of which the immediate beneficiaries are her surviving children according to Krobo customary law. It is therefore clear that only Maku’s children can set up a better right of possession to the land as against the plaintiff. The defendants are not Maku’s children but like the plaintiff are members of the ancient family. The defendants cannot have a better right than the plaintiff and they can not therefore interfere with the plaintiff’s actual possession with impunity.
This is a case where neither the plaintiff nor the defendants can establish title; but the law protects a plaintiff who is in actual possession against a defendant also without title or a better right to possession trying to interfere. Trespass to land is an entry upon or any direct act of interference with actual possession of land. Possession has long been held as prima facie evidence of the right to possession, and it being good against all the world except the true owner, it is in law sufficient to maintain an action for trespass against another person entering or interfering with that right to possession unless that other person can show a better right or authority under a better title. The
position therefore is that it is not open to a defendant in an action for trespass to set up a jus tertii which he cannot justify, to rebut the entitlement of the plaintiff who is in actual possession at the time of the entry complained of.
The plaintiff in the instant case has been in possession of her late grandmother’s farm which she has cultivated for some years past without interruption or disturbance from those entitled, i.e. the children of Maku. The defendants, who are members of the ancient family, entered upon the farm, destroyed her crops and started fresh farms on portions where plaintiff has long been cultivating. To dismiss the plaintiff’s claim in such circumstances and enter judgment for defendants would amount to allowing an intruder to eject an occupant so that the intruder may change place with the occupant. Nothing would be more chaotic were the law to permit such a state of affairs. It must be pointed out, however, that actual possession is a necessary prerequisite upon which to ground an action for trespass where there is no title in the plaintiff, because where the plaintiff relies upon a mere right of property without actual possession the law permits a defendant to rebut an entitlement by pleading a jus tertii.
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In my opinion although the claim in this case is in trespass, the totality of the evidence puts nothing more than possession in issue and I would therefore support the learned judge of the Land Court in reversing the decision of the trial native court on the alternative ground given by him in terms as follows:— “But even if I am wrong in my finding that the plaintiff proved her gift inter vivos, the plaintiff must succeed in any event upon the evidence, because as a member of Maku’s family, she is by customary law entitled to occupy and to farm a portion of the family land, so long as her occupation and possession is with the consent, express or implied, of the head and principal members of the family, the owners of the land. The head and members of Maku’s immediate family (which includes Maku’s surviving children) have never objected to the plaintiff’s possession and occupation of the land; to the contrary, the head of the family came to give evidence to support the plaintiff’s claim. In my opinion these facts are evidence that, even if the plaintiff is not the owner of the land, her possession of it is lawful and that she can successfully maintain an action for trespass against the defendants who are shown to have no vestige of
right to the land.11(11)
JUDGMENT OF SARKODEE-ADOO J.S.C.
I also agree and have nothing to add.
DECISION
Judgment of Land Court affirmed
For a different reason.
