ADJOWEI, vs. YIADOM III AND OTHERS [1973] 2 GLR 90

CASES REFERRED TO

(1) Donkor v. Asare [1960] G.L.R. 187.

(2) Aikins v. Kommenda [1959] G.L.R. 464.

(3) Ntrama v. Attia (1956) 1 W.A.L.R. 94, W.A.C.A.

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

(5) Ababio v. Darkwa (1956) 1 W.A.L.R. 124, W.A.C.A.

(6) Sasraku v. David [1959] G.L.R. 7, C.A.

(7) Yerenchi v. Aku (1905) 1 Ren. 362.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the High Court, Kumasi, dismissing the claim by the plaintiff for a declaration of title to stool land in Ashanti. The facts are sufficiently set out in the judgment of Sowah J.A.

COUNSEL

W. A. N. Adumua-Bossman for the appellant.

Joe Reindorf for the respondents.

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JUDGMENT OF SOWAH J.A.

This is an appeal from the judgment of the High Court, Kumasi, in which the court dismissed the claim for a declaration of’ title to the two parcels of land described in the writ of summons. The plaintiff instituted his action in a representative capacity as the leader of a group of Ningo and Shai farmers who joined together to form a company or syndicate with the purpose of purchasing farm land. Some of the original members were dead at the time of the action; the plaintiff was the successor of his late father Kommey Teikutey, the leader of the original group. It is the usual practice of such groups on the death of a member, for his successor at law to be substituted as a member; it is in accordance with this practice that the plaintiff became the leader of the group following the death of his father.

The case of the syndicate was that members of the original group left their native Ningo and Shai towns and were prospecting for good farming land in Ashanti, when they were invited by the odikro of Asankare, Nana Kwame Arku who offered the sale of his land. At a meeting at the ahinfie, the chief and his elders informed members of the syndicate that as a result of litigation, the stool and its elders had run into debt and that execution had been levied against their properties in satisfaction of the judgment debt. It was for this reason that the offer for the sale of stool land was being made.

Accordingly, on the first day of the meeting, the group and some of the elders of the stool inspected the land for sale, and on return to the ahinfie, the syndicate signified its acceptance of the offer by the provision of two bottles of gin at the price of thirteen shillings. The company offered to buy 100 ropes of land at the cost of £5 a rope. On a subsequent date when the parties again met for the demarcation of the area, the chief informed members of the syndicate that as time was running out, the stool would require as immediate payment on account, the sum of £45 for the liquidation of the judgment debt and the removal of the attachment. The company duly paid this sum.

The evidence reveals that at all times the person primarily responsible for negotiations on behalf of the stool was Kofi Fofie its linguist. He, it was, who sent the invitation to the head of the company and in the company of members of the syndicate inspected the land for sale. On the payment of the sum of £45 to the chief he and a member of the company were sent to pay that sum into court. When the parties went on the land and demarcated the area, the vendors were led by Kofi Fofie and the purchasers by Kommey Teikutey. The evidence which the learned judge accepted was that instead of the 100 ropes agreed upon, the vendor stool demarcated 79 ropes. There appeared to be no protest from the purchasers. The exercise of demarcation was completed within four days, thereafter the syndicate was requested to provide a sheep for slaughter on the land and drinks for the pouring of libation; subsequently the guaha custom was performed. The parties returned the following day to the ahinfie where the chief,

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the queen mother and all the elders had assembled and the syndicate paid on further account, the sum of £100. The purchasers were given time to complete payment of the balance of the purchase price; the payment of which was duly completed within two years. Thereafter the company purchased twenty more ropes of land in the area and paid £100 for it.

The cause of action arose when some years after, the defendant stool started allocating portions of the syndicate’s land to its subjects and tenants.

The defence is a complete denial of all the facts alleged by the plaintiffs. The stool denied that it ever invited the company to purchase land in the area; indeed, it put up the defence that in Ashanti, land was not saleable. It denied that there ever was a demarcation of the area in dispute; it was obliged to admit as a result of the production of the execution process that the properties of the elders of the stool had been attached for sale at the material time but denied that the elders needed money to satisfy the judgment debt.

Its case was that the stool gave a small portion of land to the syndicate to settle on as abusa tenants and that at no time was any land sold to them. The guaha custom was unknown in Ashanti and therefore that custom could not have been performed. The area in dispute has always been the property of the stool which the stool had granted to its tenants on the abusa system.

The issues therefore joined by the parties may be summarised as follows: Whether the transaction entered into by the parties was one of sale or tenancy; secondly, what was the extent of land the subject-matter of either sale or tenancy? The learned judge addressed his mind firstly to the second issue and in no uncertain terms held that in so far as the larger piece of land was concerned:

“On the issue as to what was the extent of the first parcel of land demarcated by the Asankare stool for the said company of Ningo and Shai farmers, I prefer the account given by the plaintiff and his witnesses to the version given by the defendant stool, as the plaintiff’s story was amply corroborated by the evidence adduced. The plaintiff’s evidence described the full extent of the boundaries of the first parcel of land involved.”

He went on:

“ I have no difficulty in finding as a fact that the first parcel of land was demarcated for the company as claimed by the plaintiff. With respect to the second parcel of land, however, there is no corroborative evidence except the evidence of the plaintiff himself and that of the plaintiff’s eighth and ninth witnesses who are interested parties.”

The learned judge proceeded to make the finding that there was an agreement between the stool and the company for the sale of the large piece of land. He also found as follows:

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“The company occupied a portion of the land in dispute and is at present in effective possession and control of the area edged violet in the south-west of the plan exhibit H. The greater portion of the remaining area has been granted by the defendant stool to strangers who farm the land as abusa tenants five of whom were joined to this suit as abusa tenants.”

The learned judge then addressed his mind to the essential prerequisite for a valid sale and transfer of land in accordance with custom and held that, there appeared to be no tramma demanded or given; secondly that the demarcation was neither performed in the presence of independent witness nor any of the adjoining boundary owners and finally that he was not satisfied that the guaha custom was performed, and even if it was, Kofi Fofie who performed it on behalf of the stool had no authority so to do. The absence of independent witness vitiated the whole of the ceremony; accordingly no title passed to the syndicate for the land which he had found was demarcated to it and on part of which members of the syndicate had settled and cultivated farms. The learned judge drew support for his finding from the cases of Donkor v. Asare [1960] G.L.R. 187, Aikins v. Kommenda [1959] G.L.R. 464, Ntrama v. Attia (1956) 1 W.A.L.R 94, W.A.C.A and finally Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A. He concluded that as a matter of law, the plaintiff never complied with the customary formalities of sale and therefore his claim failed. He held further that the evidence relating to the second purchase was so scanty that that claim also failed. It is from these conclusions that the appeal has been lodged.

Mr. Bossman for the appellant has submitted that there was confusion in the judge’s mind concerning the significance of tramma and guaha in the sale of land and that in pure Ashanti custom, tramma was the custom necessary in the sale of land. What the Ashantis call tramma the other Akan groups refer to as guaha, though the content of the two customs are not the same. Mr. Bossman further submitted that there was evidence that tramma was given. He referred to the evidence of the plaintiff after the inspection of the land, as to the request by the vendor stool that the syndicate should signify its acceptance of the offer of purchase, by the giving of drink. Before the demarcation of the land, the vendor stool asked for and were provided with a live sheep and a bottle of gin and the reason assigned for these requests were that the stool had a fetish in the ahinfie and according to custom, libation ought to be poured and a sheep slaughtered for the propitiation of the gods before the sale. Yet another sheep was provided to be slaughtered and drink for libation after the demarcation had been completed. These were performances which did satisfy the Ashanti requirement of tramma.

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The next submission of Mr. Bossman concerned the absence of independent witnesses and the judge’s finding that such absence invalidated the transaction. He urged that the presence of witness though necessary was not fatal and its essence is only of evidentiary value; witnesses would merely testify, if need be, of the transaction having taken place. If there was other evidence acceptable in place of testimony of witness, which went to show that a sale had in fact been conducted, a court ought to accept that evidence. He referred to those pieces of evidence which indicated that there had been a sale of transfer of title. The pieces of evidence are: the demarcation accepted by the judge, the payment of part of the purchase price, the occupation or settlement of a portion of the land in dispute. Mr. Bossman therefore contended that the learned trial judge was clearly wrong in arriving at his conclusion.

Mr. Joe Reindorf, counsel for the respondents, submitted that the learned trial judge was right in his conclusion and that the custom of guaha which is the final ceremony in the conveyance of land from vendor to purchaser has crystallised into a principle of law or rule of conveyance and that the only mode by which transfer of title by way of sale could be effected between Ghanaians disposed to adopt the customary manner of conveyance is by strict adherence to the ceremony. Departure from any of the formalities invalidates the transfer. Some of the formalities in the ceremonies are the presence of witnesses and the due publicity which should be given to the sale. In the words of Mr. Joe Reindorf, “even if there had been a sale but the formalities had not been complied with, there was no equity to tamper the injustice of the customary law in this regard.” It appears that in view of the finding of the trial judge, the only substantial defence opened to Mr. Reindorf was the technical defence that there had not been a formal conveyance of the land and the severance of the stool’s title according to customary law and therefore legal title still rested in the vendors who were at liberty in accordance with custom to parcel out the land to the co-defendants.

As already indicated two of the main issues joined were: whether there was an agreement between the parties for the sale of the area in dispute and secondly whether or not there was an effective transfer by the vendor stool of its title to the syndicate.

From the findings of the learned trial judge, there can be at least inferred without dispute one conclusion, namely, that an agreement for sale was concluded. He, however, held as a matter of law that the agreement was never performed in that the requisite formalities in the conveyance of land according to custom were not adhered to; he arrived at the decision by the application of authorities to sale of land by guaha.

The very first observation which ought to be made is that all the authorities relied on related to conveyance of land in Akan states other than Ashanti. When Sarbah wrote on the essential requisites for the sale of land he was primarily dealing with the transfers of land in Fanti

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land. Ntrama v. Attia, Ababio v. Darkwa, Aikins v. Kommenda and Tei Angmor & Co. v. Yiadom III all referred to above were not Ashanti cases and there is no authority for the proposition that the only mode of conveyance of land at customary law in Ashanti is the cutting of guaha.

Such evidence as there exists in decided cases points to the contrary. The evidence of Appiah, chief secretary to the Asanteman Council referred to in Sasraku v. David [1959] G.L.R. 7, C.A. which appeared to have been accepted by the court ran thus at p.13: “ I have heard of the custom of ‘Guaha,’ but not in Ashanti. In Ashanti we have ‘Tramma’ which is the equivalent of ‘Guaha’ in other Akan States. ‘Tramma’ is the effective means or ceremony of sale outright in Ashanti of all properties.” (The emphasis is mine.) The furtherst the courts have gone is to state that the custom was recognised in Ashanti: see Sasraku v. David (supra). It was never positively postulated that the only mode of transfer of absolute title in land in Ashanti was by that custom only.

The evidence indicates that the stool was in debt at the time and needed money to satisfy a judgment debt for which an execution had been levied. The elders must have taken a decision to sell a portion of stool land. At the meeting with the members of the syndicate at which the offer of sale was made, the odikro, the queenmother, the linguist and elders of the stool were present.

The learned trial judge accepted the evidence that the land was viewed, subsequently the boundaries were demarcated and the demarcation fee paid. His only grievance was with the absence of independent witness or boundary owners.

The parties were agreed as to the price to be paid per rope and even before the completion of the transaction the syndicate had paid on account the sum of £45 to enable the stool to meet the judgment debt and lift the execution. The plaintiff gave a detailed description of the number of sheep the company was called upon to give to the stool not only for the propitiation of the gods on the land but as testimony that the stool had parted with its title to the land.

In this contest there was an important piece of evidence which did not appear to have engaged the attention of the learned trial judge; that is the subsequent entry on to the land by the plaintiff and the building of cottages and cultivation by members of the company. Members of the syndicate hail from Ningo and Shai and could therefore have had no claim whatsoever to any portion of the land except through a grant from the defendant stool. It is not being urged that such settlements and farms as were found on the land were clandestinely made, yet no action for ejectment was ever instituted against them. The only reasonable inference from the findings of the judge is that the syndicate entered on the land in pursuance of the sale and transfer of it to them, and the severance of the stool title.

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It is patent from the reasoning above, that the performance of guaha custom is not necessary in the sale of Ashanti land; it would seem however as was evident in the Sasraku case (supra) that the syndicate ex abundanti cautela had the custom of guaha performed; for the plaintiff states “we call this custom in Adangbe ‘sugba yi ba’ meaning outright sale. The Akans near where we were living at Suhum call it guaha custom.” It is also said that members of the plaintiff company only occupied a small portion of the land, but considering that the area sold was forest land and that in those days (and even now) only the cutlass and a hoe were employed in the reduction of the forest to arable land the members could only occupy so much of the land as they could cultivate in a season. The area of cultivation increases as the farms are extended.

Though this appeal could be disposed of on the only ground that the performance of the guaha custom is not sine qua non in the transfer of absolute title to land and that the performance of the tramma custom is equally effective in Ashanti in achieving the same result and that the tramma custom was performed, it is necessary, in my view at least, to examine the reasons for the rejection of the evidence of the plaintiff on the performance of the custom guaha, in the light of the trial judge’s own findings.

In this view, if any custom was performed it was defective in that at the demarcation of the area there were no witnesses present. Secondly that there was not the publicity which should attend such sale; thirdly Kofi Fofie who was said to have performed the ceremony had no authority so to do and finally that there were no witnesses at the cutting of the guaha.

Before embarking upon an examination of the reasons for the learned trial judge’s dissatisfaction on this aspect of the plaintiff’s case we may here re-echo the views of Griffiths C.J. in Yerenchi v. Akuffo (1905) 1 Ren. 362 at p. 367, “No doubt there are some native customs which are more or less inflexible, but native custom generally consists of the performance of the reasonable in the special circumstances of the case.”

In all ancient countries where the art of writing was unknown, a way is found for the recording of events and for the perpetuation of testimony regarding such events. In our ancient society, the presence of the independent witness in all business dealings was considered essential. It is on the testimony of the independent witness that the elders can verify the truth of such matters as were in dispute. It seems to me reasonably to suppose if in spite of the absence of such witness, sufficient evidence could be brought to establish the truth of the matters in dispute, no reasonable group of elders would hold that the matter had not been proved because no witness was present. Even in the giving and payment of loans the presence of witness was considered important and essential.

The learned trial judge after a thorough examination of the evidence on the issue of demarcation held:

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“ On the issue as to what was the extent of the first parcel of land demarcated by the Asankare stool for the said company of Ningo and Shai farmers, I prefer the account given by the plaintiff and his witnesses to the version given by the defendant stool, as the plaintiff’s story was amply corroborated by the evidence adduced. The plaintiff’s evidence described the full extent of the boundaries of the first parcel of land involved.”

He went on “I have no difficulty in finding as a fact that the first parcel of land was demarcated for the company as claimed by the plaintiff.” After an examination of the authorities already referred to, the learned trial judge was obliged to arrive at a conclusion which is at complete variance with his earlier finding. He held: “ I find as a fact that the demarcation of the 100 ropes of land was never completed. There is no evidence that any of the adjacent land owners were ever invited to witness the demarcation of the boundaries as native custom demands.” Thus in one breath it is held that there was demarcation and yet in another the demarcation was no demarcation because witnesses were not present. The evidence shows however that the parcels of land were carved out in the middle of virgin forest belonging to the defendant stool; the boundary owner was therefore the stool. The learned trial judge overlooked this fact in applying his test. The case of the syndicate was that they requested a grant of 100 ropes, what the syndicate received was 79 ropes for which they paid; the finding that the demarcation of 100 ropes was not completed is irrelevant.

The next source of the trial judge’s dissatisfaction was that there was no publicity attendant on the sale. This finding is totally against the weight of evidence. It was upon the invitation of the stool that the leaders of the syndicate met with the chief, the queen mother, the linguist and the elders of the stool and the matters were publicly discussed. At the time, of course, almost all the elders had their properties under attachment and knew the reasons for the proposed sale. The learned trial judge did not stop to inform what other publicity there could have been in the circumstances of this case.

Yet another ground for his dissatisfaction was that the person who was alleged to have conducted the custom on behalf of the stool had no authority from the stool and that his authority extended only to demarcation. Kofi Fofie was the linguist to the stool and was the chief actor in all matters affecting the sale. It was he who was sent to invite the plaintiff company; he was present at the agreement for the sale, he demarcated the area to be sold and received the demarcation fee and there was evidence that he received part of the purchase price for the stool. There was no evidence either way that he received a mandate to perform the custom, all the plaintiff could say was that he did perform the custom but whether he had or not the necessary authority, this could be tested in the light of later events and the judge’s own findings. For after returning from the ceremony, the sum of £100 was given in part payment of the purchase price. If he had no authority the

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stool should have repudiated his acts; on the contrary it did no such thing, but allowed the plaintiff company to enter into and be in quiet possession for a period of over a decade. The judge himself made this finding:

“However, I find as a fact that the company occupied a portion of the land in dispute and is at present in effective possession and control of the area edged violet in the south-west of the plan exhibit H. The greater portion of the remaining area has since been granted by the defendant stool to strangers who farm the land as ‘abusa’ tenants five of whom were joined to this suit as ‘abusa’ tenants.”

The question which ought to be asked is: how did the company acquire possession and what is the nature of that possession? There can be only one answer to that in view of the findings, namely, it entered into possession by reason of the sale to it of the land demarcated.

It seems highly unjust to hold that when there is evidence of agreement for the sale, demarcation, payment of part of the purchase price and possession that the sale was incomplete only by reason that witnesses were not present at the performances of guaha custom. In any case the burden ought to have shifted upon the defendant on proof of the matters adverted to, which the learned judge accepted, to establish that the sale was incomplete and that equitable principles would not avail the plaintiffs or that in the circumstances of this case the stool was entitled to resile from the sale. There was no such proof, instead it took up the position that the plaintiffs were their abusa tenants which the learned judge rejected.

The authorities purported to be relied upon by the trial judge, merely go to show that the guaha custom is the mode of conveyance of absolute title on sale of land. 1 think that in the circumstance of this case and if it had been necessary for the decision, the equitable principle of part performance could avail the plaintiff, there will of course be equity to perfect the imperfect transfer.

Accordingly, I will allow the appeal, set aside the judgment of the High Court and enter judgment for a declaration of title and ¢500.00 damages for trespass. I will grant the order of injunction against the defendants, their servants and agents.

JUDGMENT OF APALOO J.A.

I also agree.

JUDGMENT OF ANIN J.A.

I also agree.

DECISION

Judgment for the plaintiff

Appeal allowed.

S.Y. B. B.