DARKO v. AFFRIM AND OTHERS [1966] GLR 36

Division: SUPREME COURT

Date: 17 JANUARY 1966

Before: OLLENNU, AKAINYAH AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) West Rand Co., Ltd. v. R. [1905] 2 K.B. 391; 74 L.J.K.B. 753; 93 L.T. 207; 53 W.R. 660; 21 T.L.R. 562; 49 S.J. 552.

(2) Rumbold v. London County Council (1909) 25 T.L.R. 541; 53 S.J. 502, C.A.

NATURE OF PROCEEDINGS

APPEAL from the judgment of Siriboe J. (as he then was) in the High Court, Ho, wherein he dismissed the appellant’s claim for a declaration of title, damages for trespass to and recovery of possession of two pieces or parcels of land situate at Awotrodum, Ahamansu in the Buem-Krachi District.

COUNSEL

A. W. Acquaah (E. D. Kom with him) for the appellant.

B. J. da Rocha for the respondents.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Siriboe J., as he then was, wherein he dismissed a claim by the appellant, hereinafter referred to as the plaintiff, to declaration of title, damages for trespass to and recovery of possession of two pieces or parcels of land situate at Awotrodum, Ahamansu in the Buem-Krachi District.

The plaintiff pleaded that a company of 29 persons including his father contributed money to buy a large area of land and apportioned it among themselves according to their respective contributions; that the two portions of land claimed by him together formed the share given to his father, and the same have devolved upon him as successor, his father having died intestate. He pleaded further that he had been dispossessed of the land by the defendants.

The defence denied the plaintiff’s averments that the large area of land was purchased by a company of 29 persons, or that the plaintiff’s father was entitled to two portions or any portion of the large area by right of purchase or contribution. They denied that the plaintiff was entitled to any portion of land or that he had wrongfully been dispossessed of any portion of the land to which he is lawfully entitled. The co-defendant further pleaded that in so far as the claim is in respect of a farm occupied by him, he is a purchaser of the lands from M. L. Darko who originally acquired the larger area, and that the plaintiff has never been in possession of those farms. [p.38] of [1966] GLR 36 Evidence was led by both sides to show that the large area of land of which the two pieces claimed by the plaintiff form portions, was purchased by one M. L. Darko an uncle of the plaintiff. But while the plaintiff alleged that M. L. Darko made the purchase as a representative of a company of 29 including his, the plaintiff’s father, the defence maintained that M. L. Darko made the purchase in his individual and not in any representative capacity. And although it was not pleaded, the defence led evidence which was quite conclusive that the plaintiff’s father made a cocoa farm on a portion of the land, that that portion was a gift made to him by his brother the said M. L. Darko, and that the plaintiff’s father subsequently, that is in 1942, sold that farm to one Olaga, and thereupon removed to Golokwati and there lived and cultivated yams and other food crops until his death in 1946.

The trial judge held, among other things, that the plaintiff failed to prove the purchase of the land as pleaded by him, and also failed to prove the identity of the two pieces of land or either of them which he claims in the suit.

Only four of the seven grounds of appeal filed were argued with any seriousness, these are:

(1) The trial judge erred in dismissing the plaintiff’s claim that the land in dispute cannot be ascertained with certainty.

(2) The trial judge failed miserably to consider the doctrine of purchase in the name of another, let alone apply it to the facts of the case.

(3) The trial judge contrary to Order 19, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 and well settled legal authorities allowed evidence to be led in proof of matters not pleaded and based his decision thereon.

(4) There was no legal basis for the trial judge’s conclusion that the plaintiff failed to discharge the onus of proof that lay upon him.

In respect of grounds (1) and (4), learned counsel for the plaintiff conceded that although the description of each of the two pieces of land was given in the statement of claim, no evidence was led to identify either of them and none of the boundary owners named was called as a witness by the plaintiff. He contended, however, that upon the pleading it would appear that the identity of the lands was not in dispute, consequently it was not necessary for the plaintiff to prove the identity of the lands. Counsel further submitted that in any event the plaintiff led evidence of his possession of the two pieces of land, [p.39] of [1966] GLR 36 and that is enough to entitle him to judgment for the declaration he seeks.

We do not agree with either one of the two submissions made by counsel for the plaintiff. By their specific denial of every single material allegation of fact pleaded by the plaintiff in addition to the general traverse, the defence put the plaintiff to strict proof of each of those allegations, prominent among which is the identity of the lands. The plaintiff was fully alive to the effect of the defence filed, and joined issue with the defendants thereon. Thus in his reply to the defence of the second co-defendant he said: “Plaintiff joins issue with the second co-defendant upon his defence.” This being a claim to declaration of title, damages for trespass and recovery of possession, the plaintiff cannot succeed without clear proof of the identity of the lands to which the court should hold him entitled, which the court can see has been trespassed upon, and of which the sheriff can, without committing trespass on other peoples’ lands, place him in possession if ordered by the court so to do. On the question of possession of the lands, all the evidence the plaintiff himself led is as follows: “Timothy Doe Darko was not a caretaker of the two farms until 1955 when he died. He became a caretaker of them for only one year and handed over the two farms to me in 1948 as the eldest son of my father with which to look after myself and my other brothers and sister. I was in possession of the farms from the 1948 cocoa season up to 16 December 1960 when the defendant came to my village and collected the cocoa I had plucked and which was under fermentation which he took away. He brought many people with him to the place and removed the cocoa away by force.

The defendant did not assign any reason for what he did. When I asked him why he was removing the cocoa like that, he said he would beat me.”

The only other evidence on the record which relates to the plaintiff ‘s possession of any farm on the land is evidence by his first witness and is as follows:

“In the year 1960, I paid another visit to my brothers at Ahamansu village. The plaintiff’s labourer whose name I have forgotten (but is a native of Kotokoli) came and told me something. As a result I went to Nana Yao Karko III at Ahamansu and made a complaint to him against the defendant who refused to come. On my way back to Ada I met the plaintiff at Kpong and I told him about what his labourer told me.” [p.40] of [1966] GLR 36

Before giving this evidence the witness had not said a word about the plaintiff’s occupation of any farm or about any labourers of the plaintiff working on the land. Moreover, although the plaintiff himself said that he had a labourer at the material date, one Adam Kotokoli, and that his labourer was driven away from the farm by the defendant, he did not call that Adam Kotokoli, and he did not say anything more about that labourer and about another labourer who he said left the land in 1956; and he did not call either of those two men to say what work they did on the land.

These pieces of evidence given by the plaintiff and his witness relied upon by the plaintiff to establish his possession and occupation are too nebulous to deserve any consideration. They failed to reach the standard of proof which the law requires. Therefore on the first and fourth grounds argued, we must say that the complete failure of the plaintiff to establish the identity of the pieces of land he claims or of either of them, coupled with his failure to prove possession of any area over which trespass could be committed, is fatal to his claim. It follows that the learned trial judge properly directed himself in holding that the plaintiff failed to discharge the onus upon him in the case.

In support of the second ground argued, it was conceded that there is direct evidence that it was M. L. Darko who negotiated the purchase of the large area of land. Counsel strongly argued that the learned trial judge erred in concluding that M. L. Darko must have made the purchase on his own behalf and not as representative of 29 people, because there is evidence that a large number of people are now occupying portions of the land, and there is further evidence given by the plaintiff’s first and second witnesses supporting the plaintiff that the purchase was made on behalf of 29 persons. The first of those two witnesses claimed to have acquired his knowledge from his now deceased father who he said was a member of the company; his evidence is therefore admissible as evidence of tradition. The second witness is the present occupant of the stool from which the land was purchased; he said he acquired his knowledge of the facts from one Timothy Doe Darko, successor to M. L. Darko, and one Hushie, both deceased, who told him that the purchase was made by 29 people. This witness admitted that his predecessor on the stool who together with the elders of the stool made the sale is still alive, though destooled, and therefore has first-hand knowledge of the facts. There is no evidence that the elders of the stool at the time of the sale are all dead, and no evidence either that the elders of his stool have ever confirmed the information given to him by the two strangers to the stool. That being the case, his evidence in this regard is valueless and inadmissible; it is not evidence of tradition of his [p.41] of [1966] GLR 36 stool; in fact it cannot be tradition because it is a matter within the knowledge of living persons, namely, the ex-chief, and some of the elders of the stool, and these are the proper persons to give evidence of what happened; but the plaintiff did not consider it necessary to call any of these to make available to the court the primary evidence which exists on the subject.

Now whether or not in making the purchase of the land, M. L. Darko acted on his own behalf or on behalf of a company of 29 persons is a question of fact for the trial judge to decide. The evidence tendered in support of the plaintiff’s version is nebulous; on the other hand, that given to the contrary is exceedingly strong, the preponderance of the evidence therefore supports the decision which the trial judge made. His decision on that issue cannot therefore be questioned.

The contention of counsel in respect of the third ground argued is that since the first co-defendant did not plead in his statement of defence that the plaintiff’s father had a gift of a portion of the land from M. L. Darko and made cocoa farm thereon, but sold the same to Olaga long before his death, he should not have been permitted to lead evidence in respect of that fact since Order 19, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954, makes it incumbent upon him to plead those facts before he can give evidence in proof of them.

The law on the point as can be gathered from Order 19, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954, which reproduces Order 19, r. 4 of the English Rules of the Supreme Court is that the facts in respect of which the court should not allow evidence to be led unless pleaded are facts which are essential to success, and not just facts which may enable a party to succeed: see West Rand Co., Ltd. v. R.2 and Rumbold v. London County Council.3 For further discussion on this subject, see the comments in the 1962 edition of the Annual Practice, Vol. 1, p. 455, headed “All Material Facts,” discussed under Order 19, r. 4, and the cases there cited.

Applying this principle the question must be asked, can the success of the first co-defendant’s plea that he is in occupation of the land by right of purchase in any way depend upon the fact that the plaintiff’s father disposed of any land he owned in the area prior to his death? Or can the success of the plaintiff’s case that his father together with some 28 persons purchased land and apportioned it among themselves depend upon that fact? The answer is definitely no. That fact is mere surplusage. That being so, the omission by the

[p.42] of [1966] GLR 36 first co-defendant of those facts cannot preclude him from leading evidence of them. Moreover, the plaintiff did not object to the evidence being admitted in the trial court, and he did not apply for an adjournment to enable him to lead rebutting evidence if indeed he was taken by surprise. It follows that the admission of that evidence has not caused any injustice to the appellant.

The appellant has failed to satisfy us that the judgment of the High Court is wrong either in law or upon the facts; his appeal must therefore be dismissed, and it is accordingly dismissed with costs fixed at ¢138.60.

DECISION

Appeal dismissed.

E. D. K.