OSEI YAW AND ANOTHER v. DOMFEH [1965] GLR 418

DIVISION: SUPREME COURT

DATE: 31 MAY 1965

BEFORE: MILLS-ODOI, APALOO AND BRUCE-LYLE JJ.S.C.

CASE REFERRED TO

Tsrifo v. Dua VIII [1959] G.L.R. 63.

NATURE OF PROCEEDINGS

APPEAL from the judgment of Djabanor J. delivered in the High Court, Kumasi, on 22 April 1963, sustaining a claim by the respondent against the appellants for a declaration of title to two cocoa farms said to be situate at Sukubiri and Dentemen on Offinso stool land.

COUNSEL

B. J. da Rocha (with him Puplampu) for the appellants.

No appearance by or on behalf of the respondent.

JUDGMENT OF APALOO J.S.C.

This is an appeal from the judgment of Djabanor J. delivered in the High Court, Kumasi, on 22 April

1963. That judgment sustained a claim by the respondent (hereinafter called the plaintiff) against the appellants (hereinafter called the defendants) for a declaration of title to two cocoa farms said to be situate at Sukubiri and Dentemen on Offinso stool land. The plaintiff’s claim of title to a dwelling-house described as No. NU 204, Nkenkassu, was disallowed.

This case has no comprehensive history and the facts are as simple as the issues sought to be determined.

The plaintiff was one of the nephews of the late Kwadwo Addai. The evidence shows that Addai died at

Nkoranza on 1 July 1961. The plaintiff claimed that the deceased died leaving a will in which all his properties were devised to him. The defendants were apparently unaware of the execution of a will by the deceased. They denied that there was any such will. But they took the position that even if such a will existed, it did not operate to vest title to these properties in the plaintiff as they were family properties.

The plaintiff replied that the properties to which he laid claim, belonged to the deceased in his own right and that he was entitled to make a valid testamentary disposition of them in his, that is the plaintiff’s favour and he so disposed of them. That being the stand taken by the parties, only two issues were submitted to the learned trial judge for determination. They were formulated in the summons for directions as follows:

“(1) Whether or not the properties in dispute were the self-acquired properties of the late Kwadwo Addai, and

[p.420] of [1965] GLR 418

(2) Whether or not the late Kwadwo Addai made a will disposing of his properties both real and personal to the plaintiff.”

At the trial, a probate copy of the will was tendered in evidence and its preparation was independently proved by one Mr. J. E. Adu, a letter writer. The learned trial judge therefore accepted it as the genuine will of the deceased and thus determined the second issue in favour of the plaintiff. The first issue thus turned out to be the most serious and controversial one during the trial. After considering the oral testimony of the witnesses and weighing what he said were the probabilities, the learned judge substantially decided the first issue also in favour of the plaintiff. I use the word “substantially” deliberately because the learned judge sustained the contention of the defendants that in so far as the house was concerned, it was erected on family land and that the deceased had no right to dispose of it by will.

The defendants aggrieved by some of the findings of the learned judge appealed to this court. Although paragraph (2) of the notice of appeal complains against the whole judgment, the grounds of appeal make it plain that the defendants’ complaint relates only to the learned judge’s finding about the two cocoa farms. When hearing of this appeal commenced before us on 11 May last, the argument addressed to us in support of the appeal was limited to the two said cocoa farms, and was brief and to the point.

It was submitted on behalf of the defendants that the onus was on the plaintiff to show that the farms in question were the self-acquired properties of the late Addai. It was said that not only did the plaintiff fail to show this, but that he produced witnesses whose evidence shows that the farms belonged to the family.

Counsel referred us in particular to the evidence of Osei Kwame, the head of the plaintiff’s family, and the admissions made by him in cross-examination to the effect that the farms were commenced by Peprah and Djumah and were succeeded to by Addai who extended them. Counsel referred us to the virtual rejection of that evidence by the learned trial judge and contended that the latter gave no valid reason for rejecting it. Counsel also referred us to the evidence of Yaw Gyamfi, the plaintiff’s second witness, and submitted that a proper appraisal of his evidence suggests that the land on which the farms were made was at least ancestral property. Accordingly, counsel invited us to say that the judgment of the court below was wrong and asked us to reverse it.

The respondent did not appear and was not represented. Accordingly, no argument was urged in support of the judgment. That in

[p.421] of [1965] GLR 418 no way detracts from the cogency of the contentions put forward on behalf of the appellants or in any way lessens the care and consideration which we have given to this case.

The learned trial judge relied, in coming to the conclusions that the disputed farms were made by Addai, on the evidence of two witnesses whom he said struck him as truthful. These are Osei Kwame and

Gyamfi. Osei Kwame was obviously the more important of the two because not only was he the head of the family of the parties but also because he was clearly older than the late Addai and was in a position to have a personal knowledge of the matter about which he testified. He said Addai was his younger brother.

He did not say how the land on which the two farms were made came to be acquired but he said in examination-in-chief that the two disputed farms were made by Addai. In cross-examination, he admitted clearly that the Dentemen and Sukubiri farms were originally cultivated by Peprah and Djumah respectively and were extended by Addai who succeeded both these persons. That, it is to be noted, was the case pleaded by the defendants and controverted by the plaintiff. The learned trial judge accepted Osei

Kwame as a witness of truth but ignored the admissions which he made, and which admissions were plainly fatal to the plaintiff’s case. The reason given by the learned judge for not accepting his admission is that “he [the witness] was getting tired and rather confused at that time.” With great respect to the learned judge, that reason seems to me somewhat naive. The trial opened with the evidence of this witness, and if he was a spontaneous witness (and he must have been to have impressed the learned judge) his evidence-in-chief cannot, in my estimation, have taken more than half an hour. The cross-examination was as brief as one could imagine was clearly nothing that would tire out a truthful witness. These admissions were made at the very beginning of the cross-examination and rendered a lengthy cross-questioning unnecessary. Osei was apparently re-examined only about the Dentemen farm and he stuck to the story he told in cross-examination. He again said “Late Peprah only cultivated a small portion and it was Kwadwo Addai who extended it and took possession of same.” That evidence given in cross-examination and persisted in re-examination, seems to me to have the clearest imprint of truth and I am satisfied, for my part, that the learned judge gave no valid reason for rejecting it.

The only other witness on whose evidence the learned judge relied was one Gyamfi. He claimed to be a nephew of Addai but the evidence of genealogy which he gave showed that he could not have been a close relation of the deceased. He asserted that the cocoa farm at Sukubiri was made by Addai and that

Djumah only made a cola-nut farm. He also said the cocoa farm at Dentemen was made

[p.422] of [1965] GLR 418 by Addai. Like Osei Kwame, he did not give evidence as to how the land on which the Dentemen farm were made came to be acquired. But his testimony suggests that the land on which the farms was made was originally occupied by Peprah because he said Peprah planted one orange tree there. It is not in dispute that Addai succeeded Peprah and if he entered into possession of that land after Peprah’s death, it cannot be gainsaid that he was on family land. Gyamfi testified that he owned a farm which abutted the

Dentemen farm but he did not make it himself but succeeded one Yaw Nantwi. The fact that when

Gyamfi succeeded to the farm, he came to form a boundary with Addai, does not, to my way of thinking, prove that Addai was the person who originally began the making of the cocoa farm. The evidence of

Osei Kwame that the two farms were originally commenced by Djumah and Peprah established the contrary. I think the right conclusion to be drawn from the collective testimony of these two witnesses is that Peprah and Djumah each began the cultivation of the Dentemen and Sukubiri cocoa farms. Upon the death of each, Addai succeeded them and extended and improved these farms. If that conclusion is right, it must follow that Addai was in his lifetime in enjoyment of family properties and the fact that he might, in his capacity as successor have improved them, does not take away the family stamp on them.

This view of the matter is borne out at least, as farm as the Sukubiri far is concerned, by a rather curious averment in paragraph (1) of the plaintiff’s statement of reply. It was pleaded that, “the said farm at

Sukubiri was made substantially by the late Kwadwo Addai but with the help of Kwaku Djumah and other members of the family so that when the said Kwaku Djumah died, Kwadwo Addai still retained his sole ownership and possession over the said farm.” If, as the learned trial judge seemed to have held,

Addai himself acquired the virgin forest and cultivated the farm as his own self-acquired property, that averment would not have been made. But if it is remembered that Addai succeeded to Djumah and this fact is correlated with Osei Kwame’s evidence that Djumah in fact began the cultivation of the Sukubiri farm, which Addai as successor entered upon, one begins to get the rationale of that averment.

The fact that the two disputed farms were originally cultivated by Peprah and Djumah is also supported by the testimony of two witnesses, namely, Yaw Fobi and Akosua Amponsah who appear from the evidence to have spoken of their own knowledge. Fobi testified that he knew Djumah before his death and said he cultivated the Sukubiri farm. On Djumah’s death, the farm was succeeded to by his father

Boadu and he and his father lived on that farm. According to him, it was after his father’s death that

Addai succeeded to this

[p.423] of [1965] GLR 418 farm. He was put through what strikes me as a detailed cross-examination but did not seem to have been shaken. Fobi also testified that the Dentemen farm was cultivated by Peprah and that in his lifetime, he and his father felled Odum trees in that farm. This was also supported by Akosua Amponsah who swore that she knew Peprah and had just reached the age of puberty when he died. She said she actually saw

Peprah and his mother cultivate the farm at Dentemen. That farm, she said, abuts one she inherited from her uncle Kwabena Nyame.

In my judgment, the evidence that the making of the two disputed farms was commenced by Peprah and

Djumah and they were succeeded to by Addai was overwhelming and was virtually uncontradicted.

Indeed it was supported by evidence provided by the plaintiff. In these circumstances that evidence ought to have been accepted and the learned judge ought not to have preferred what, after all, were his conjectures to the positive testimony of the witnesses. In this connection, I cite with approval the proposition of law enunciated by Ollennu J. (as he then was) in Tsrifo v. Dua VIII1:

“Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible.”

I think the learned trial judge was in error when he failed to find that the two disputed farms were family properties. I do so find and hold that inasmuch as the late Addai purported to dispose of these farms by will that devise did not vest any title to these farms in the plaintiff. It follows that the declaration of title and an order of possession which were made in the plaintiff’s favour were made in error.

Accordingly, I would allow the appeal and set aside that part of the judgment which declares that the plaintiff” is entitled to the ownership and possession of the Sukubiri and Dentemen farms.” As the £G30 damages was awarded to the plaintiff on the footing that he was entitled to the exclusive possession of the farms and that his possession was interfered with by the defendants, that award cannot now stand and I would also set it aside. But I would leave intact that part of the judgment which decreed title and possession

[p.424] of [1965] GLR 418 of specific personalities to the plaintiff inasmuch as those were proved or admitted to belong to Addai in his own right and were validly disposed of by the will.

The plaintiff having failed to establish his title to almost all his major claims, the defendants ought to have been awarded their costs in the High Court. I would assess them at 50 guineas. They will also have their costs in this court.

JUDGMENT OF MILLS-ODOI J.S.C.

I agreed.

JUDGMENT OF BRUCE-LYLE J.S.C.

I also agree.

DECISION

Appeal allowed in part.

E.A.-A.