ARMAR v. GYEMAH [1966] GLR 98

Division: SUPREME COURT

Date: 31 JANUARY 1966

Before: SARKODEE-ADOO C.J., APALOO AND SIRIBOE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from the decision of the Land Court giving judgment for the plaintiff. The facts are sufficiently set out in the judgment of Siriboe J. S.C. COUNSEL

A. K. Aidoo for the appellant.

Mrs. A. Harlley for the respondent.

[p.99] of [1966] GLR 98

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Acolatse J. (as he then was) sitting in the Land Court, Accra, on 30 May 1959, whereby he decided in favour of the plaintiff-respondent (hereinafter referred to as the plaintiff).

The case concerns a piece or parcel of land situate at Ahinakwa Road, Adabraka, Accra, more particularly described in the writ of summons and statement of claim respectively, to which the plaintiff on behalf of herself and six other children of their late father Joseph Adjaye Armar, deceased, claims title, £G100 damages and an injunction restraining the defendant, his agents and servants from entering upon it, or in any way whatsoever interfering with the plaintiff’s possession and occupation thereof. The evidence of the plaintiff as amplified by her witnesses, more particularly the plaintiff’s first witness, is that the property in question was originally a portion of a large area of land owned by one Tetteh Doi who died intestate some time in 1920. His family, acting by their accredited caretakers (the plaintiff’s first witness and the defendant’s second witness), sold that portion in dispute to one Dodoo Cobblah as evidenced by a deed of conveyance (exhibit C) dated 6 March 1930, and registered as No. 1147/30. By another deed (exhibit B) dated 21 May 1935 and registered as No. 548/1935, the said Cobblah, for the consideration therein expressed, conveyed the land in question to one Emma Felicia Tetteh, who in turn, mortgaged it to the United Africa Co., Ltd. under a deed of mortgage dated 14 October 1936, bearing registration No. 726/ 1936. In exercise of the power of the sale contained in the said deed of mortgage, the company caused the land to be sold by public auction, at which sale the plaintiff’s father was declared the highest bidder and thereby the purchaser of the land for the sum of £G91.

Following this, the company conveyed the land to him by a deed (exhibit A) dated 15 December 1937, and registered as No. 135/38. He was accordingly put in possession until the time of his death intestate on 27 June 1946, when the land devolved upon the plaintiff and the other children in accordance with Tema (Ga) custom, and they continued the possession per their caretaker.

The present action was instituted in February 1956, because the defendant was seen digging foundations on the land for the purpose of erecting a building thereon in spite of all warnings given to him by the plaintiff. The defendant on the other hand bases his claim to the land on an alleged sale of it to him by the defendant’s first witness for the sum of £250 under a deed of conveyance (exhibit 2) dated 25 April 1953, and registered as No. 912/1953.

[p.100] of [1966] GLR 98

In exhibit 2 the defendant’s first witness conveyed the land as head of the Tetteh Doi family, a position which he has been proved not to have had as will appear in the course of this judgment. According to the defendant’s first witness he sold the land to the defendant under a power of attorney (exhibit 3) from the female line of that family. It is dated 29 January 1955, although the evidence shows that the purported sale was on 25 April 1953. At the conclusion of the hearing, the trial judge who sat with an assessor and who agreed with him, entered judgment for the plaintiff on all the reliefs claimed with the exception of the damages of £G100 which he reduced to £G50, and awarded her costs of one hundred guineas inclusive.

That judgment is now sought to be impeached on the ground that the learned judge was wrong in holding that exhibit C passed good title in the land in question to Dodoo Cobblah, without considering that the vendors therein described themselves as beneficial owners, whereas the evidence in court is that they sold as caretakers of the Tetteh Doi family, who were not aware of the transaction. Counsel for the appellant therefore submitted that the sale to Cobblah was void, and that the only effective sale is the one to the defendant by the defendant’s first witness.

Undue weight, counsel further argued, was put by the learned judge on assertions made by the plaintiff which were not corroborated. Finally, he argued that the evidence was rather very much in favour of the defendant who ought therefore to have been given judgment, and as such, urged that the appeal be allowed.

Upon consideration of the case as appearing on record, we are unable to accept learned counsel’s submissions. With regard to the conveyance made in 1930, we entirely agree with learned counsel for the respondent that there is overwhelming evidence on record, both oral and documentary, which leads to the irresistible conclusion that the vendors referred to, were the accredited caretakers of the family duly authorised to sell not only that piece of land in question but others too, which they did for the benefit of the family.

The absence of any action taken by the family to assert their right to that land since the sale about 35 years ago, during which period the land had changed hands on about four occasions, is clear evidence of the fact that the sale was genuinely carried out, otherwise it is difficult to think of any other justifiable reason consistent with the absolute disinterestedness shown by the family in that land. The argument about corroboration and weight of evidence, therefore, seems to us to be of no substance. Nor are we impressed in any way by the submission that the only effective deed of conveyance as far as the land is concerned is that

[p.101] of [1966] GLR 98 of 1953, i.e. exhibit 2. In our view, that submission appears to have been made without any consideration given to the evidence of the defendant’s first witness himself, and the effect of both exhibits D and 3. By exhibit D which is the judgment of van Lare J. (as he then was) dated 22 March 1955, it is made manifestly clear, that the defendant’s first witness purporting to act as the head of the Tetteh Doi family, unsuccessfully challenged the validity of the sale of another piece of the family land by the said caretakers in 1929, to one John Thomas Otoo, the plaintiff in that case. In his judgment, not only did van Lare J. hold that the caretakers had the requisite authority of the family to sell the land, but also that the defendant in that suit (now the defendant’s first witness) was not a member of the Tetteh Doi family and could not in the circumstances claim to represent it as its head.

The significance of that finding is better appreciated when considered together with the defendant’s first witness’s admission in the present proceedings that he is not a member of the Tetteh Doi family, and also the evidence given by the defendant’s second witness as follows:

“The plaintiff in exhibit D attached the store of the defendant [referring to the defendant’s first witness] and sold the contents of the store after the judgment in exhibit D. No member of the family contributed anything to help the defendant in exhibit D in execution of the costs.”

That should leave no one in doubt that the defendant’s first witness had no authority to represent the family. It seems to us therefore, that the burden was upon the defendant to prove that the sale by the defendant’s first witness under the alleged power of attorney, exhibit 3, was made with the authority of the family. In other words, the authenticity of that highly dubious document, exhibit 3, should have been established, but surprisingly enough, this was not done.

We accordingly agree with the learned judge when he said:

“Exhibit 3 is the deed of sale in which the vendor [i.e. the defendant’s first witness] described himself as head of the aforesaid family and as vested with the absolute ownership of the property whereas, in truth and law, he had not a vestige of family power and headship vested in him at the time he purported to sell. . . I find also that no principal members of the real family were called to testify to the authenticity of the power of attorney under which he alleged he sold the property.”

[p.102] of [1966] GLR 98

We would go further to point out that had the defence been able to discharge that burden at all, there was still the other hurdle, indeed, a very formidable one to get over, namely, the burden of proving that the sale in 1930 from which the plaintiff traced her root of title was void and of no effect, thereby giving the defendant title to the land in consequence of the purported sale in 1953. But there too the defence failed miserably; a situation they must have realised later in the course of the trial as can be inferred from the following answer given by the defendant’s first witness under cross-examination:

“I did not know in 1953 Kwamin Addy and Cudjoe Addy [i.e. the plaintiff’s first witness and the defendant’s second witness] had already sold the land. If I had known the land was sold I would not have sold it.” In the circumstances we are of opinion that this appeal contains no merits and should therefore be dismissed.

DECISION

Appeal dismissed.

S. K. T.