QUANSAH v. ADADEIWA [1966] GLR 184

Division: HIGH COURT, CAPE COAST

Date: 16 FEBRUARY 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.

(2) Waya v. Byrouthy (1958) 3 W.A.L.R. 413.

(3) Ramsden v. Dyson (1866) L. R.1.H. L. 129.

(4) Rafat v. Ellis (1954) 14 W.A.C.A. 430.

NATURE OF PROCEEDINGS

ACTION for a declaration of title to a parcel of land with buildings thereon situate at Aboom, Cape Coast and for an account of all rents collected by the defendant from tenants occupying the building on the said land. The facts are fully set out in the judgment.

COUNSEL

Polley for the plaintiff.

Essilfie-Bondzie for the defendant.

JUDGMENT OF ARCHER J.

The plaintiff as customary successor of his late brother J. E. Quansah claims against the defendant, the widow of the said late brother, a declaration of title to that piece or parcel of land with the buildings thereon, situate at Aboom, Cape Coast, and known as Plot 95. The plaintiff also claims an account of all rents collected by the defendant from tenants occupying the building on the said land and also payment to the plaintiff of the amount that may be found due and owing.

The facts of the case are that by an indenture dated 5 May 1947 tendered as exhibit B, one William Essuman-Gwira Sekyi as vendor conveyed the land in question to Madam Effua Atta, the mother of the plaintiff and his deceased brother, J. E. Quansah, for the consideration of the sum of £G85 paid by the purchaser. According to the plaintiff in his evidence, he had a transaction with his late brother in relation to this piece of land, and the two of them purchased the land in the name of their mother, Madam Effua Atta. After exhibit B had been executed, Madam Effua Atta did nothing about the land and the plaintiff and his deceased brother put up a building on the land supervised by the plaintiff. The plaintiff also testified that his late brother approached their mother and explained to her that owing to unforeseen circumstances, the land should be conveyed to the deceased brother. As a result of this approach, a deed of gift was made by their mother. This deed of gift was [p.186] of [1966] GLR 184 tendered as exhibit C and it is dated 7 August 1955. The plaintiff’s brother died on 15 July 1962 when the building had not been completed. After the brother’s death, the defendant occupied the house together with her tenants. The plaintiff claims to have been appointed customary successor of his late brother who died intestate and claims the house, now occupied by the defendant and the other tenants, as family property.

The defendant disputes that the plaintiff has ever been appointed customary successor and claims that the house was devised by Madam Effua Atta. who died on 7 February 1964 to the defendant’s children by the deceased brother, J. E. Quansah. The original probate with copy of the will attached was tendered as exhibit 1. The defendant has challenged the validity of the deed of gift—exhibit C. The questions to be decided by the court appears to me to be:

(1) whether the plaintiff is the customary successor of the late J. E. Quansah, and

(2) whether at the date of the death of Madam Effua Atta, the house in question was her property by virtue of the deed of conveyance, exhibit B, over which she had the testamentary power to dispose. I shall attempt to answer the first question by dealing with facts in the second question because if I am able to do so then I may consider whether it is necessary to pursue the second question. To prove the due execution of the deed of gift, exhibit B, the plaintiff brought two witnesses. One was Kweku Mensah who claimed to belong to the Aburadzie family of which the plaintiff is a member. When exhibit B was shown to him, he remembered that he signed the deed as a witness. I consider the evidence of this witness as of vital importance as he appears to be the only person who has given evidence out of the persons who signed the document as parties and witnesses. The following are his words in evidence on oath: “I remember during her lifetime, she made some document. I signed that document, exhibit C, and I see my signature on it. The document was not read to her while I was there. I was present when she made her mark but I was not present when it was read to her.” The court heard another witness Kwamina Onyibi Essiam for the plaintiff. He was not a witness to the deed but claimed to be very conversant with the signature of one Kwesi Asaam who was his paternal cousin now dead. Essiam said he and Asaam were law clerks in the same lawyer’s office for about 22 years. He identified four signatures of Kwesi Asaam on the deed of gift. Kwesi Asaam [p.187] of [1966] GLR 184 according to the concluding clause was the one who read over and interpreted to the donor Madam Effua Atta in the Fante language, the contents of the deed. Kwesi Asaam also signed as witness to the mark of the donor. Later the same Kwesi Asaam proved on oath the due execution of the instrument before the High Court registrar, Cape Coast. Kwesi Asaam is dead.

Learned counsel for the defendant has submitted that as Madam Effua Atta was an illiterate, the deed of gift was not her act as there is no presumption that an illiterate person is presumed to have appreciated the meaning and effect of a legal instrument because he is alleged to have set his mark to it by way of signature. Learned counsel relied on the cases of Tei Angmor & Co. v. Yiadom III1 and Waya v. Byrouthy.2 In the latter case Adumua-Bossman J. (as he then was) said,3 “As has always been held in this court, the burden is always on the party relying on the document to prove that it was read over (and, if necessary, interpreted) to the illiterate person, and that it was apparently understood by him.” There is no doubt that according to the various endorsements on the deed of gift Kwesi Asaam’s name and signature appear as the person who interpreted the deed to the donor, who subsequently proved the execution before the High Court registrar, and who delivered the document for registration at the deeds registry. Unfortunately, no evidence was adduced by the plaintiff to prove whether the other witnesses Ekua Amissa and Adjua Attara are alive or dead. The only available witness was Kweku Mensah who was called by the plaintiff. He revealed one aspect of the transaction which must be considered very fully by the court. In cross-examination, he stated as follows:

“I was at Saltpond when Madam Effua Atta sent for me and said she had a piece of land on which she wished to build. She said she wanted to pledge the land to get some loan. She said she was giving the documents of the land to her son J. E. Quansah to get a loan. She asked me to sign exhibit C and I did sign. After I had signed, exhibit C was not read to me. I was the first person to sign exhibit C. I left after I had signed.”

This piece of evidence was not pursued in re-examination so as to clear the doubt which had been created as to whether or not Madam Effua Atta intended to convey this land to her son as an outright gift or whether it was merely a mode of conveyance to vest her son with legal ownership in order to raise the loan but holding [p.188] of [1966] GLR 184 on trust for the mother, the donor. If that is the case, the deed of gift as a mode of conveyance is perfectly valid but it does not conclude the agreement between the donor and the donee. Assuming that Kwesi Mensah’s evidence is true and that Madam Effua Atta intended to transfer the title to her son purposely to raise the loan to build the house, he conveyancer (and I shall deal with the conveyancer in due course) who prepared the deed of gift should have also prepared a deed of declaration of trust by the donee in favour of the donor. That was not done. It struck me during the trial that it would be necessary to call the conveyancer who prepared the deed if neither party called him. Accordingly, by virtue of section 68 of the Courts Act, 1960,4 I ordered that Mr. P. F. C. Awoonor-Renner, the conveyancer whose signature appears as an endorsement on the back of the deed of gift, should be summoned to give evidence at the instance of the court. After all the parties had called all their witnesses and had closed their case, the court then called Mr. Awoonor-Renner whose evidence is not only fascinating but important. I quote from his evidence in examination by the court: “I have been practising as a conveyancer since some time ago. I cannot remember whether in 1955 I prepared a deed of gift by Effua Atta to James Edward Quansah. I see this document exhibit C and I see my signature on it. It appears to have been signed by me. The deed of gift was typed in my office. The type looks familiar. I have no doubt in my mind. I cannot remember who gave me instructions. I do not remember James Edward Quansah. I do not know the plaintiff. I have never seen him anywhere. I do not remember seeing the donor. The document was not executed in my presence. The drafting of the document considering the legal phrases used, after having read it, is not mine. But I usually put my designation on documents as conveyancer. It must have been brought to me for my signature before registration.”

This open sincere confession by an octogenarian shows that this deed of gift was prepared by a non-lawyer and presented to Mr. Awoonor-Renner for endorsement as conveyancer for the purpose of the registration of the deed of gift in the deeds registry.

Now I shall deal with what happened after the death of the donee. J. E. Quansah died on 15 July 1962 and letters of administration (not with will annexed) were granted to the plaintiff R. E. Quansah as the brother and next-of-kin of the deceased according to the description in exhibit A, the letters of administration. The property declared was £G2,568 3s.10d. In cross-examination the [p.189] of [1966] GLR 184 plaintiff said that, “The house was not included in the declaration of the deceased’s property filed in the court when I applied for letters of administration.” Assuming that the house was not declared, because although the Administration of Estates Act, 1961,5 was then in force the plaintiff was ignorant of its provisions, what did he do as customary successor to the land? If the land and the uncompleted house formed part of the estate of the deceased brother, did he take possession of the land after he had been appointed as customary successor? There is no evidence that he did so. The impression which I gather is that if the plaintiff had attempted to exercise control over the house as successor, Madam Effua Atta would have protested because she had not divested herself of ownership of the land and house during her life time. Neither Kwesi Buah, the third witness for the plaintiff nor Kofi Acquah, the fifth witness for the plaintiff, who claim to have appointed the plaintiff, testified that when J. E. Quansah died the land and house were never considered as part of the estate left by him. The family elders appear to have distributed everything movable but nobody mentioned what was to be done to plot 95. My conviction is that the plaintiff knew that this land had not been conveyed outright as a gift to the deceased but rather that a deed of conveyance had been prepared to enable the deceased donee to raise money. Kwesi Buah, the head of family from Mpesedadzie, in cross-examination stated as follows: “An amount of £G1,660 was first distributed. There were also a three boxes of clothing. There was also cutlery and other things. That is all. To my knowledge these were the properties left by Quansah.

Q. If he left anything also, you would know as head of the family?

A. Yes, I would know.”

So it seems that after the death of J. E. Quansah, the head of the family and the plaintiff, assuming he was the customary successor, made no attempt to assert any right to this land as property which had become family property on J. E. Quansah’s death. Furthermore, Madam Effua Atta died on 7 February 1964, that is two years after J. E. Quansah’s death. There is no indication that the plaintiff spent any of the money left by his deceased brother to complete the building on the land. When the will was read, Kwesi Buah was present and he heard that this house had been devised by the testatrix to [p.190] of [1966] GLR 184 her grandchildren. In cross-examination the plaintiff stated as follows:

“Q. Was the will read after you had obtained letters of administration?

A. It was read a year after. I have no idea that this house was devised by the will to my late brother’s children. I was present when the will was read but I did not ask questions. Kojo Amoah was present.” Again there is no evidence that immediately after Madam Effua Atta’s death in February 1964 the plaintiff exercised any rights as customary owner of the land in dispute. In his own words he visited the house in August 1964 and he has since not been there. There is evidence that after the death of Madam Effua Atta, the defendant moved in and spent money in fixing doors and windows and repairing the roof to make the house habitable. The defendant then occupied the house with her children in August 1964. This is confirmed by the evidence of the plaintiff himself when in cross-examination he said the building was first occupied in August 1964. The building was uncompleted in July 1962 when J. E. Quansah died. The plaintiff did nothing in respect of this house and asserted no rights of ownership until the house was completed by the defendant and made habitable because then Madam Effua Atta was no longer alive to challenge the deed of gift.

The conduct of the plaintiff fortifies me in my conviction that Kweku Mensah was speaking the truth when he said that Madam Effua Atta told him that she wanted to pledge the land to raise a loan to build on her land and that she was giving the document to her son J. E. Quansah to raise a loan. Kweku Mensah was called by the plaintiff himself and not by the defendant. His evidence remained uncontradicted. Furthermore there is the evidence of Mr. Awoonor-Renner, the conveyancer, who had disclaimed any knowledge of the contents of the instrument although he endorsed it. Who then prepared this document ? That is a mystery.

In his evidence in chief, the plaintiff stated that he belonged to the Aburadzie family and that his head of family was one Kojo Amoah who lived in Cape Coast. Kojo Amoah was not brought to give evidence and it was not shown that he was dead. In cross-examination the plaintiff said, “I have been appointed customary successor. I was appointed by Kwesi Abuah in a section of my family.” Then further on he stated, “Kwesi Abuah did not swear an affidavit that he had appointed me customary successor but my mother swore an affidavit.”

[p.191] of [1966] GLR 184

Kwesi Abuah testified that he was the head of family of the Aburadzie clan and also the head of the immediate family of J. E. Quansah, deceased. In his own words: “In this present case, the family met. I am the head of the immediate family. But one Kofi Acquah who is the next to the head of family agreed with the elders of the family and appointed the plaintiff, R. E. Quansah, customary successor. I found the appointment was correct and so I agreed. Kojo Amoah is a member of the Aburadzie family but not a member of the immediate family.”

In answer to a question by the court, he stated, “I am the head of the whole wider family of Aburadzie. A branch of the Aburadzie family is in Cape Coast.” In cross-examination, Kwesi Abuah stated that he had been head of the family for about 30 years but had recently come to Cape Coast. Previously he was away at Mpesedadzie.

Kofi Acquah also gave this piece of evidence. He was once head of the family but transferred the headship to Kwesi Abuah only less than four years ago, although Kwesi Abuah himself had stated that he had been head for about 30 years. Although Kwesi Abuah acknowledges that Kojo Amoah is regarded as the head by certain members from various townships gathered around Cape Coast, yet Kofi Acquah explained that he did not come from Cape Coast and did not know who was the head of the Cape Coast branch of the family. I am therefore faced with a conflict in the evidence for the plaintiff’s case. The plaintiff claims in his evidence that Kojo Amoah is the head of the family and that he was appointed by Kwesi Abuah in a section of the family. Kwesi Abuah claims to have been head for 30 years and he is head of the whole Aburadzie family, whereas Kofi Acquah claims that he made Kwesi Abuah head of family less than four years ago after having been head himself for 40 years. Kofi Acquah does not know who is the head of the Cape Coast branch of the family. Both Kwesi Abuah and Kofi Acquah come from Mpesedadzie. The evidence of these three witnesses contains serious inconsistencies and I cannot without good reason choose the evidence of one or two of them as the truth. I therefore hold that I have not been satisfied as to the identity of the head of the family.

Kweku Mensah who was called by the plaintiff was emphatic that no customary successor to J. E. Quansah, so far as his knowledge goes, had been appointed. The defendant also denied any knowledge of the appointment of the plaintiff as successor. She

[p.192] of [1966] GLR 184 was in the witness-box and at no time was it suggested or put to her that during or after the funeral rites she was summoned and the plaintiff was introduced to her as the customary successor to her deceased husband. As I understand customary law, the office of head of family or customary successor entails reciprocity of rights and duties or privileges and obligations. The customary successor has to look after the widow and the children of the deceased. In this present case, there is no scintilla of evidence that the plaintiff as customary successor has looked after the widow and the children. Indeed the widow herself has maintained and educated the children. The plaintiff has not done any overt acts consistent with and attributable to the rights and duties of a customary successor. Such overt acts undoubtedly would enable the court to infer that the plaintiff was discharging certain duties by virtue of his office as customary successor. In this suit there is not an iota of proof that the plaintiff has been behaving like a customary successor.

Then I come to the letters of administration granted to the plaintiff when his brother died. The letters refer to the plaintiff as the “brother and next-of-kin of the deceased.” These words do not mean that the plaintiff is the customary successor. If the affidavits supporting the application for the grant had been tendered in evidence there is no doubt that the court would have been convinced of the plaintiff’s appointment as customary successor. In any case, the plaintiff was only one of hundreds of next-of-kin but the mere fact that the family agreed that he should apply for the grant is not conclusive evidence that he was also customary successor. The plaintiff might have been appointed presumably because he was educated and literate and he could therefore more efficiently discharge the duties of administrator. I am therefore not satisfied that the plaintiff has discharged the burden of proof which lies on him. In civil cases, the degree of proof is not high and a court of law need rely only on a balance of probabilities or if necessary a preponderance of probabilities. I have considered the whole evidence adduced in support of the plaintiff’s case, but taking into consideration the inconsistencies in the evidence as to who is the head of the family and who appointed the plaintiff customary successor, and the conduct of the plaintiff and his inactivity, I can only say that I now have in my mind a tissue of improbabilities and I agree with the defendant and Kweku Mensah that in fact no customary successor has been appointed to succeed J. E. Quansah, deceased.

As regards the deed of gift, there is no doubt that there is proof by affidavit sworn by Kwesi Asaam now dead that the contents were read and interpreted to Madam Effua Atta. But is the deed conclusive? I do not think so. The evidence of Kweku Mensah, the evidence [p.193] of [1966] GLR 184 of Mr. Awonoor-Renner who disclaimed any knowledge of the contents of the documents, the aquiescence of the plaintiff and members of the family when the will of Madam Effua Atta was read, the apathy and indifference shown by the plaintiff as regards the property in question after his brother’s death, all these have shattered the last modicum of confidence which I had earlier reposed in the true nature of the transaction between Madam Effua Atta and her son J. E. Quansah when the document was executed.

In this regard, I wish to quote from Cross on Evidence (2nd ed.) at p. 512:

“When it is relevant, having regard to the principles of common law and equity involved, extrinsic evidence may be given of the real nature of any transaction, whether it is recorded in a document in pursuance of legal requirements or at the instance of the parties. Thus evidence has been received to show that an apparent sale was really a mortgage (Re Malborough (Duke); Davis v. Whitehead 1894 2 Ch. 133) and a secret trust could never be established without recourse to extrinsic means of proof.”

I have therefore relied on extrinsic evidence in this case to prove that although the deed of gift was executed by Madam Effua Atta, the deed of gift did not disclose or represent the real nature of the agreement between herself and her son. The probability was that she conveyed the property to her son to clothe him with legal ownership to raise a loan in order to build on the land but in fact the son was to hold the land on trust for her. The person who drafted the deed was no doubt a non-lawyer and must have used the wrong precedent of conveyancing. Moreover, the plaintiff claims to know everything about how this deed came to be executed and yet after his brother’s death when he knew that this deed was in existence, he asserted no rights, assuming he was then customary successor, to this land and the uncompleted building on it. There is no evidence that he even spent part of the £G2,600 in improving this building. He never asserted any rights to this plot during the mother’s lifetime because he must have known that if he did, the mother would have protested and the true nature of the transaction would have been revealed. The plaintiff waited until the defendant possibly through her very small means had completed the building and had rendered it habitable before excavating the deed of gift in the absence of Madam Effua Atta. The plaintiff claims to have bought this land jointly with his deceased brother for their mother. Yet in her will, Madam Effua Atta stated that “the said piece or parcel of land was bought for me by my said late son Kojo Kwansah deceased.” Kojo Kwansah is the same person as J. E. Quansah. No mention is made that the

[p.194] of [1966] GLR 184 plaintiff bought the land jointly with J. E. Quansah. If he was a joint purchaser, why did he not insist that, to use his own words, “on account of unforeseeable circumstances,” the land should be reconveyed to himself and his brother by their mother. One possible inference I can draw from all the facts is that J. E. Quansah as donee in the deed of gift might have held the land on a secret trust for Madam Effua Atta and that at her death she could have competently devised the land by her will.

However, both Madam Effua Atta and J. E. Quansah are dead and they are the only persons in a position to say whether J. E. Quansah held it on trust for his mother. Without relying on the evidence of Kweku Mensah as regards what Madam Effua Atta told him about using the documents relating to her land to enable a loan to be raised, I think the plaintiff and the other members of the family are clearly estopped by their conduct from asserting any right to this land.

When J. E. Quansah died, the plaintiff must have known of the existence of this deed of gift because he himself has said that they approached their mother to convey the land to his late brother. Nobody did anything about this land during Madam Effua Atta’s lifetime and nobody protested when the will was read although Kwesi Abuah has confirmed that he was present when the will was read and the devise was mentioned. The plaintiff has confirmed that he was present but that he never heard of this devise. The family have waited until the defendant has expended money in making the house habitable before asserting their right to it. On the principle in Ramsden v. Dyson6 followed in Rafat v. Ellis,7 I am prepared to hold that the members of the family have stood by since the death of J. E. Quansah and have allowed the defendant since the death of Madam Effua Atta to suppose herself to be completing a building on land devised to her children.

For the above reason, I am unable to grant the declaration and the reliefs the plaintiff seeks in his claim because he has failed to prove that he is the customary successor of J. E. Quansah, deceased. Secondly, I am unable to declare that the property in dispute is family property because the members of the family are estopped by their conduct. The plaintiff’s claim is therefore dismissed and judgment is entered in favour of the defendant with 40 guineas costs.

DECISION

Judgment for defendant.

S. K. T.