DODOO v. GYANSA AND ANOTHER [1960] GLR 9

DIVISION: IN THE HIGH COURT (LANDS DIVISION) CAPE

COAST

DATE: 20TH JANUARY, 1960

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) United Products, Ltd. v. Afari and Others Divisional Court 1929-31, 11.

(2) Ebu v. Ababio 2 W.A.L.R. 55.

NATURE OF PROCEEDINGS

APPEAL from a decision of the Eastern Gomoa Asin Native Court “B” in favour of the plaintiff in an action for declaration of title to land and the buildings thereon, recovery of possession and damages.

COUNSEL

R. J. Hayfron-Benjamin for plaintiff.

Lamptey for defendants.

JUDGMENT OF ADUMUA- BOSSMAN J.

(His Lordship referred to the facts and continued).

It seems to me that proof of the ownership of the land need not be restricted to the evidence of the vendor or to that of eye-witnesses at the sale. It is the exception rather than the rule that, at the time of litigation about land which has been transferred by methods of customary transfer, the original owner and vendor (and the witnesses to the transaction) are alive to tell the tale. In my experience, it is evidence (if such be available) of the exercise of acts of ownership over the property during the material years, which has served as a beacon-light to guide the courts in determining ownership. So in United Products Ltd. v. Afari and Others (Div. Ct. 1929-31, p. 12) Deane, C.J. said: “The probabilities of the case and the evidence of possession strongly support the claimant’s story and I do not consider that the fact that she has not called an eye-witness who was present when the gift was made is ipso facto sufficient to defeat her case and that in fine a gift cannot be proved as contended unless a witness to it is produced. “In the case of Basel Mission Factory v. Suapim a judgment of Smyly, Chief Justice, reported in Local reports of 1919 page 14, is not in my opinion an authority as contended for the proposition that in order to prove a gift before a Court an eye-witness of the transaction must give evidence of the gift; all that the learned Chief Justice does there is to state the well-known principle of law, namely, that for a gift to be valid it must be made in presence of a witness, in other words a man could not be heard to say that a gift had been made to him by a donor secretly, without a witness. The proving of a gift before the Court must in my opinion be proved as any other fact is proved and when a person who alleges a gift made in the presence of a witness does not call that witness that is a fact that merits most serious consideration but when the other circumstances in the case all most strongly support the allegation and are in fact only explicable on the basis of the allegation being true the Court is I conceive quite entitled to come to the conclusion that the allegation is proved.” Again, in the case of Ebu v. Ababio (2 W.A.L.R. 55) a case which was considered by the Privy Council in 1956, the headnote reads as follows: ⎯

“This was an action fought between two stools for a declaration of

[p.11] of [1960] GLR 9 title to an area of land. The traditional evidence adduced by each stool as to first occupation and first title was inconclusive, but the plaintiff stool satisfactorily demonstrated long occupation and the exercise of rights over the land in dispute, and on this evidence a declaration of title was made in its favour. On appeal the point was made that the plaintiff stool should not succeed without a finding in its favour on the traditional evidence of first occupation and title.

Held:- that although traditional evidence has a part to play in actions for declaration of title, a favourable finding on this evidence is not necessarily essential to the case of the party seeking the declaration.”

Mr. de Silva, who delivered the judgment of tile Judicial Committee said:

“It was argued that the respondent could not succeed without a finding in his favour on the traditional evidence. In his statement of claim the respondent set out not only what, according to him, were the historical facts relating to the original occupancy of the land, but also alleged that ‘from time immemorial possessory rights have been exercised’ by the respondent and his predecessors. The evidence led by him as to acts of possession had been accepted. Traditional evidence has a part to play in actions for declaration of title, but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.” In the light of these authorities I do not think that there is much force in the argument that the onus was not sufficiently discharged because the vendor of the land was not called by the plaintiff.

In any case, the question whether the true story was given by the plaintiff’s evidence that it was his late mother who purchased the land for £4 from Kwamin Akyinabo, or by the first defendant’s version (supported by the evidence of Kwamin Akyinabo himself) that it was the first defendant who purchased the land in dispute for £10, was a question of fact to be determined by the trial court in the light of all the other evidence available, and there can be no doubt that there was a considerable volume of “ other evidence “ before the trial court which went to discredit the defendants’ case:

(1) there was the evidence of the completely disinterested boundary owners, (a) Kwesi Omissie (first witness) boundary owner to the south, and (b) Kobina Kakraba (fifth witness), boundary owner to the west. Their evidence was adverse to the defendants’ case, and emphatically acknowledged the plaintiff’s late mother as the owner of the land in dispute;

(2) there was the evidence concerning the plaintiff’s conversion of one of the two ground-floor buildings into the present storey house. The defendant admitted this, and attempted to explain it way by saying that they had given the plaintiff £300 (without taking any receipt) for him to repair the premises on behalf of the first defendant, though the plaintiff does not live in [p.12] of [1960] GLR 9

Nyanyanu at all, but far away in Sekondi, whence he comes periodically to visit Nyanyanu.

This explanation the trial court rightly rejected;

(3) there was the crucial and decisive evidence that it was the plaintiff who was acknowledged as owner, and from whom tenants (including the local council) have been hiring the rooms in the houses from about 1939 until about one and a half years prior to the issue of the writ in March, 1959.

The sum total of this evidence is that the plaintiff was not only accepted by the defendants themselves as successor to his late mother in respect of the two premises in dispute, but was allowed to take control and possession of them, and to exercise all the rights of ownership in respect of them; and this without question from about 1935 (when he succeeded his late mother) up to about one and a half years prior to March 1959, when the writ instituting the present action was issued. In the light of all this “ other evidence “ adverse to the defendants’ case, I am satisfied that the trial court were more than justified in their finding against the defendants when that court said:

“We find no truth in the evidence of defendants in stating that first defendant bought these premises from their only witness at £G10, and we also disbelieve that they gave £G300 to plaintiff to repair this premises. We also disbelieve the evidence of the defendants’ witness that he sold the house to the first defendant for £G10.” There was ample evidence to justify the judgment of the trial court in favour of the plaintiff. For the foregoing reasons the judgment of the trial court is hereby affirmed, and the appeal dismissed.

DECISION

Appeal dismissed.