ADUBIA v. BOANYO [1966] GLR 433

Division: HIGH COURT, SUNYANI

Date: 3 JUNE 1966

Before: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Apapam Stool v. Attaa (1956) 1 W.A.L.R. 117, W.A.C.A.

(2) Anto v. Mensah (1957) 3 W.A.L.R. 1.

(3) Dza v. Komla (1956) 1 W.A.L.R. 145.

[p.435] of [1966] GLR 433

(4) Buckingham v. Daily News Ltd. [1956] 2 Q.B. 534; [1956] 3 W.L.R. 375; 100 S.J. 528; [1956] 2 All E.R. 904, C.A.

(5) London General Omnibus Co., Ltd. v. Lavell [1901] 1 Ch. 135; 17 T.L.R. 61, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment in an action for declaration of title to a cocoa farm wherein the Tano Local Court gave judgment for the plaintiff. The facts are fully set out in the judgment.

COUNSEL

Hayfron-Benjamin for the appellant.

Ansah-Twum for the respondent.

JUDGMENT OF HAYFRON-BENJAMIN J. This appeal comes from the Tano Local Court, and it is against a decision of the magistrate sitting at Duayaw Nkwanta which he gave on 28 December 1965. He entered judgment for the plaintiff declaring him the owner of the land in dispute. The plaintiff claimed by his writ a declaration of title to all that piece and parcel of land situate, being and lying at a place known as Apatasu in front of the plaintiff’s cocoa farm, a portion of which has been cultivated by the defendant and which forms common boundaries with the defendant’s property and Yaw Mensah’s property. This farm is situate on Duayaw Nkwanta stool land. He also claimed damages for trespass, but none was awarded. The plaintiff, a student and a young man, customarily succeeded his uncle in 1956. His case is that as he was too young to manage the estate, his father was empowered by the family to manage the estate on his behalf.

The estate consisted of a cocoa farm with a cottage, and adjoining forest land. This cocoa farm had been cultivated by the plaintiff’s uncle, who was the husband of the defendant. The said uncle had however made another farm with the aid of his wife, the defendant, at another place called Bisigya. She however, was staying at the same village with her husband. About six months prior to the commencement of the suit, the plaintiff’s father informed him that one Ahenkan had trespassed and weeded a portion of the forest land adjoining the plaintiff’s uncle’s farm by permission of the defendant. He the plaintiff, went to the spot, and found that a portion of the forest had been cultivated. He questioned the defendant, who claimed that that portion was hers. He therefore complained to the relatives of the defendant, who heard their respective stories, inspected the land, and decided that the land should be shared. Both the plaintiff and the defendant disagreed with this, and the plaintiff reported the matter further to the Omanhene of Duayaw Nkwanta, but the defendant refused to attend. The plaintiff therefore sued the [p.436] of [1966] GLR 433 defendant. There was another attempt to settle the matter; according to the plaintiff: “The matter was gone into and the arbitrators chose to view the place in dispute. All of us went to the place and the arbitrators arrived at the conclusion that the defendant had weeded my area. They suggested to demarcate a portion to the defendant because she had cultivated the forest land. I consented to the suggestion. The defendant also agreed. The defendant later said that she was not satisfied with the decision of the arbitrators and therefore I was compelled to pursue the matter.”

It is important to note, that nowhere in his evidence did the plaintiff testify to any gift from his uncle to the defendant. He was too young. It was left to his two witnesses to give evidence as to the gift. The first was the Krontihene of Duayaw Nkwanta. He is the father of the deceased Kwabena Donkor. There is nothing in his testimony showing that he is in the slightest way acquainted with the area in dispute. His son told him of his intended gift to his wife, the defendant, and he accepted the aseda which the defendant paid for the gift. He also deputed Kwame Dapaa, Kwame Anane and Adwoa Adae the sister of the deceased to inspect the portion gifted to the defendant. Adwoa Adae was called and she supported the Krontihene’s evidence that she went to see the area which the deceased gave to the defendant. She claimed to know the place very well. The deceased, she testified, cut a line through the forest land and marked trees. This is the sum total of the evidence for the plaintiff who seeks a declaration of his title. I would not have hesitated to allow the appeal and dismiss his claim, if his counsel had not put forward a brave and subtle submission on the onus of proof.

The submission is shortly this: that where the defendant’s case admits the plaintiff’s original title, but contends that the plaintiff has at a certain point in time divested himself of his title then it is for the defendant to establish and prove the divestative act. In this case, he contends that the defendant admits that the whole farm originally belonged to the plaintiff’s predecessor in title, and that a portion of it was given to her as a gift. It is therefore incumbent for her to prove the gift, and in so doing she must of necessity prove the extent of the land comprised in the gift. Support for this contention, if indeed authority be required, is found in the decision of the West African Court of Appeal in the case of Apapam Stool v. Attaa.1

It is therefore necessary to examine the case put forward by the defendant. Her case is that she helped her late husband to make

[p.437] of [1966] GLR 433 three seasonal farms at Bisigya. When they had exhausted their share of the forest land, her father gave her husband part of his forest land at Apatasuagye to weed so that he might give her a share. She helped him to make two seasonal farms, and the husband alone made a third one which he gave to her. He built a cottage on part of her area. He made two other seasonal farms which he sold outright. She however extended the cultivation of cocoa near the cottage. Because of the presence of the cocoa nearby the cottage became damp, and they therefore moved and built a new cottage where they stayed for some time before leaving. Her husband then died. When cross-examined by the plaintiff she said that the plaintiff planted cocoa near the cottage, and that that place is her husband’s and not hers. This can only mean that the place was not included in the portion of the farm given her by her husband for her exclusive use. I do not think she meant to admit her husband’s title to that portion of the farm, because she had in cross-examine the plaintiff asked him how the deceased husband ever came to be at Apatasu. His answer was that he did not know “who posted him at Apatasu.” She had also given evidence (to which I have already referred) that her late father Kwadwo Adae gave her husband a portion of his forest land to weed “so that he might” to quote her words “give me a share.” This piece of evidence was unchallenged. Now owing to the customary rule of descent, and the hardship often suffered by the widow and her children it often happens that the wife’s relatives provide the land for the husband either to cultivate, build, or work on it. The purpose of this arrangement is to circumvent the rule of descent, and to secure the estate to the wife and her children in the event of her husband’s death intestate. Sarbah in his Fanti Customary Laws (2nd ed.) describes this sort of grant in relation to building leases, but there is nothing in law which prevents its application to other uses of the land. The learned author writes at p. 71: “Grants of land for building purposes are generally made by members of a family to a junior member at the time of marriage. Thus a man takes in marriage a woman. The members of her family give or point out to the husband a plot of land to build on, and the only object of this is that the man may have somewhere to reside with his wife and any issue of the union.

The rule of the descent with regard to any erections on such lands is somewhat similar to what is known in English law as tenancy in tail special. The grant is invariably made to a man and his issue (not heirs)—say, on Essie, his wife begotten or to

[p.438] of [1966] GLR 433 be begotten. Whatever is erected on such land goes to Essie and her children by him. For all practical purposes, the man has only a life interest, which he forfeits by wrongfully and improperly terminating the marriage.

The man’s heir or successor has no title or interest in such premises, nor can he himself sell or mortgage them.”

It is clear that the defendant’s father did not intend to make an outright gift of his forest land to the deceased husband. The fact that the husband sold three of the farms outright is immaterial to this case, and completely irrelevant.

The defendant’s husband had already made three farms at Bisigya, and it is clear that the defendant’s father’s object of giving the land to the defendant’s husband was to benefit her. The defendant therefore at no stage in her evidence admitted proprietary title in her late husband or his successors. The case of Apapam Stool v. Attaa (supra) therefore does not apply.

Even if I had held that the defendant admitted original title to the farms in her late husband, I would still have held that the case of Apapam Stool v. Attaa (supra) does not apply to this case. In that case the original owner never admitted that there had been a gift of the land to the defendant. His case was that he had been the owner all along. It was therefore for the defendant who set up the gift to prove it. In this case, however, the plaintiff admits that there was a gift of a portion of the farm to the defendant. What he is contending is that the defendant has gone beyond the land comprised in the gift. He is the person asserting the affirmative and he should prove it.

It is further contended for the plaintiff that the local court magistrate inspected the locus and he was satisfied that the defendant had trespassed and crossed into the plaintiff’s land. The power to inspect land is conferred by regulation 30 of the Local Court Procedure Regulations 1962,2 which provides: “In any cause or matter it shall be lawful for a Local Court on the application of either party, or of its own motion to make such order for the inspection by the Local Court of any immovable or movable property, the inspection of which may be material to the proper determination of the question in dispute, and to give such direction in respect of such inspection as the Local Court may think fit.”

This is an almost verbatim reproduction of section 42 of the Native Courts (Colony) Ordinance.3 An inspection under that provision was

[p.439] of [1966] GLR 433 considered by van Lare J. (as he then was) in Anto v. Mensah4 where the learned judge followed the case of Dza v. Komla.5 The learned judge’s decision has so often been quoted that I think a time has come to re-examine its basis and its limits. I shall therefore first quote the relevant portions. The learned judge said, “It is also seen that the trial Native Court appear to use certain facts in support of their judgment concerning which facts there is no evidence adduced.”6 I do not think that a native court having visited the land in dispute and without re-opening the case and giving opportunity for cross-examination, or for recording relevant facts may make use of these facts in the judgment. In this connection I quote with approval from the headnote to Dza v. Komla as follows7:

“Although, in land cases, a view by the court of the land concerned is often a desirable thing, it is undesirable that too much weight should be attached to the impressions gained by the court on viewing the land, to the detriment of the weight the court should attach to the demeanour of witnesses when giving evidence on oath, and to the evidence they give.”

The actual words of Lingley J. were as follows8:

“It is all too common for a trial court to set out at some considerable length the respective cases of the parties and then state that they viewed the land and therefore believe the party for whom they give judgment . . . The trial court should make the effort to decide which party is giving truthful evidence during the hearing of the oral evidence. In this case and many others far too much reliance is placed on the view of the land to resolve conflicts of evidence. It must be apparent that false allegations by one side in court may well be supported by that side confidently pointing out boundary marks in support of its claim. The capacity to point out boundary marks may corroborate a party’s claim but such conduct ought not to be the sole test of a party’s veracity.”

There are three propositions of importance in these passages:

(a) that the local courts should not base their decisions on facts observed at the inspection about which there is no evidence on record; [p.440] of [1966] GLR 433

(b) that in order to do so, the local courts must re-open the case and give opportunity for cross-examination or for recording relevant facts; and

(c) that even where there is evidence on the record, too much reliance should not be placed on the impressions gained at the view to resolve conflicts in the evidence.

I am in broad and general agreement with the first and third propositions, but with a caveat that I can visualise cases in which a trial magistrate may be justified in placing strong reliance on such impressions and even basing his decision on such observations alone which are even contrary to the evidence: see Buckingham v. Daily News Ltd.9 where the decision in London General Omnibus Co., Ltd. v. Lavell10 which said that an inspection does not do away with the necessity for evidence was considered and distinguished. It is not necessary for the decision of this case to examine the circumstances under which a trial magistrate can be justified in basing his decision on the observations formed at the view, because I am here satisfied that the issue for determination in this case was not one which could be settled by observation of physical features on the land. Where there is no agreement between the parties that at the time of the gift the donor or those deputed by him to demarcate the land left particular marks on the land by which the extent of the land comprised in the gift can be identified, a decision by a trial magistrate based solely on the view formed in inspection is in my view worthless. In this case there was no such agreement; the plaintiff’s witness says that the donor cut a line through the forest land and marked trees. There is no evidence as to which trees were marked, and there is no mention of any marked trees in the judgment which incorporates the inspection report. I am of the view that the conclusion formed by the trial magistrate cannot stand.

I shall now consider the second proposition which seems to me more procedural than substantive. The trial magistrate in this case did not re-open the case; he incorporated his observations in his judgment. If the second proposition is well-founded this would amount to a material irregularity. I however think that it is not well-founded. I have never been able to fathom or divine the utility of this purposeless and time consuming exercise. It rather reminds me of the blindmen who went to see the elephant. Each was then asked to state what he saw, and naturally there was serious disagreement as to the shape and form of the elephant. If the trial magistrate goes on to the land with the parties and their respective witnesses, and [p.441] of [1966] GLR 433 views the land, what purpose is served by conducting what amounts to a second trial on what was seen at the view? The efficacy of cross-examination I have always thought lies in the presumed judicial ignorance of the facts, and that the judge or magistrate is given the opportunity by watching the demeanour of the witnesses to arrive at a conclusion as to their veracity. If the trial magistrate himself is conversant with the features of the land what purpose is served by asking the parties to go through this judicial pantomime? Magistrates and, if I may say so with respect, judges are human; and are more likely to be impressed by what they see than what they hear. It is the purpose of the first and third propositions to discourage this natural tendency. I do not see how this tendency is discouraged by re-opening the case and conducting a trial within a trial. Where the court has deputed persons to view the land, this procedure is justified and indeed necessary, but I can see neither rhyme nor reason in it where the court itself has viewed the land. I hold therefore that the procedure of the local court magistrate here in not re-opening the case is not irregular.

In the result I must hold that the plaintiff in this case failed to discharge the burden of proof that lay on him to establish his title. He failed to prove his uncle’s root of title, and also to prove the extent of the land he claimed. His claim to declaration and other related remedies and reliefs should have been dismissed. I allow the appeal, set aside the judgment of the local court, and enter judgment for the defendant dismissing the plaintiff’s claim in its entirety. I am satisfied that the plaintiff is not entitled to any portion of the land he claims in his writ. I order that the costs in the court below if paid by the defendant must be refunded forthwith. I award the defendant costs in this court which I assess at 75 guineas inclusive of counsel fee of 50 guineas. She will also be entitled to her costs in the court below which I fix at the same level as awarded to the plaintiff, that is £G20.

DECISION

Appeal allowed.

E. D. K.