AFFRAM AND OTHERS vs. DIDIYE III; TWUM II vs. DIDIYE III (CONSOLIDATED) [1999-2000] 2 GLR 148

CASES REFERRED TO

(1) Akrofi v Otenge [1989-90] 2 GLR 244, SC.

(2) Hervie v Tamakloe (1958) 3 WALR 342.

(3) Bakuma v Ekor [1972] 1 GLR 133, CA.

(4) Okomfo Afua v Sarbah [1974] 1 GLR 147.

APPEAL from judgment of the High Court, Koforidua declaring the respondent and his family owners of a large tract of land in Kwahu area of the Afram Plains. The facts are sufficiently set out in the judgment of Benin JA.

WAN Adumua-Bossman for the appellant.

Ofori Yeboah for the respondent.

Benin JA. Delivered the first judgment of the court at the invitation of Wood JA. I must start off by saying that these two cases were consolidated here on appeal just to facilitate the hearing since it became clear that the issues, both factual and legal, were almost the same in both appeals. Hence only one statement of case was filed by either counsel in both appeals, so that whatever analysis that may be done will apply to both appeals; but we will not hesitate to make separate orders should that become necessary.

[p.154] of [1999-2000] 2 GLR 148

The facts giving rise to these actions were not in much disputes. For about a hundred and fifty years the plaintiff-respondent (hereinafter called the plaintiff) and his people, both past and present, have been licencees to the stool of Burukuruwa (hereinafter referred to as the stool) in the Kwahu area of the Afram plains, in respect of a large stretch of land. Sometime in the year 1990, the plaintiff and his people claimed to have discovered a document which showed in clear language that the very land, and even more, in respect of which they were licencees was rather their own bona fide property, the same having been purchased by their relative, the late Kwaku Didiye. The plaintiffs therefore obtained authenticated copies from the National Archives and then began representations to take over the land as their own which the stool rejected on the ground that the land was its own, over which they had placed the plaintiffs as licencees.

A report was made to the Kwahu Traditional Council which deliberated over the issue and ruled in favour of the plaintiff’s family. The stool would still not yield to their request; hence the commencement of the action at the Koforidua High Court. In the first action, LS No 15/92, the plaintiff sued four persons who they claimed were wrongfully dealing with the land and were refusing to acknowledge their (plaintiffs’) ownership thereof. In the second action, LS No 83/92, the plaintiff sued the occupant of the stool. And in both actions, the plaintiff sought declaration of title and other reliefs, which reliefs could conveniently be described as ancillary to the main one. As pointed out earlier, the consolidation of these two actions took place only on appeal. At the trial level, both actions were heard separately even though it appears the evidence led was no different, one from the other.

The case for the parties was just as recounted in the facts stated earlier. But the defence went a bit further to raise certain issues, a lot of them legal, namely:

“(i) That the plaintiff has no capacity to sue;

(ii) that the documents discovered by the plaintiff’s family do not confer any joint or sole ownership rights to the land on them;

(iii) that the plaintiffs were guilty of acquiescence and laches;

(iv) that the plaintiffs were caught by the statute of limitations, namely the Limitation Decree, 1972 (NRCD 54);

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(v) that the proceedings and decision of the Kwahu Traditional Council were null and void; and (vi) that whatever claim, if at all, that the plaintiffs have, is extinguished by virtue of the Farm Lands (Protection) Act, 1962 (Act 107).”

The stool also counterclaimed for a declaration of title to the land as well as for an order of perpetual injunction.

I propose to deal with only those that are the subject of the grounds of appeal and accordingly treat the rest of them as abandoned on appeal by counsel for the appellants. In that respect it will appear counsel abandoned all the above listed defences except the first two.

A The plaintiff’s capacity.

The plaintiff sued for himself and on behalf of the Didiye family of Abomosarefo, in his capacity as head of the said family. This was denied by the defence. The plaintiff gave evidence as regards the events that occurred before his proclamation as head of family, a fact which the entire family has acknowledged. This was affirmed by Kwame Didiye, the second plaintiff witness, a principal member of the family, who went further to say emphatically that it was the family that authorized the plaintiff to mount this action. I would have thought that with the evidence of the plaintiff and the second plaintiff witness, which was in no way discredited and or contradicted, the question of plaintiff’s capacity to sue was settled in his favour; notwithstanding the fact that the plaintiff relates the Didiye family on the maternal side, a family which is said to inherit patrilineally. That was not to be.

The first ground of appeal in CA 15/97 is that:

‘The learned trial judge erred by failing to appreciate that the plaintiff was unable to establish his locus standi since he led no evidence as to a paternal family meeting which appointed him (a maternal relation) as head of the patrilineal Bariyo or Didiye family or which, in the alternative, gave him the mandate to issue the writ of summons in this litigation.”

A similar ground is stated in ground (ii) in CA 14/97. This is the trial court’s finding and conclusion on this:

“. . . has the plaintiff led the requisite evidence in terms of the relevant capacity which he asserts? I think that on the whole,

[p.156] of [1999-2000] 2 GLR 148 a consideration of the evidence leads no one in doubt that the plaintiff is the head of the Didiye family as he asserts. His evidence on this score is not seriously challenged; and further a principal member of the family who came to support his assertion on this was not challenged. Again, the third defendant witness when asked in direct to identify any member of the said family in court, identified the plaintiff. These coupled with the fact that defendant was unable to say who the head of plaintiff’s family is renders their denial a bare assertion having regard to the fact that Abomosarefo is a small community from which the parties come and that the question as to headship would be a matter of common knowledge. I therefore hold that the plaintiff is the head of the Didiye family.”

The court relied on the Supreme Court decision in Akrofi v Otenge [1989-90] 2 GLR 244, SC.

Counsel for the defendant-appellants (hereinafter referred to as the defendants) referred to this authority and submitted that the trial judge “misconstrued and unduly narrowed” its scope in this instance. Akrofi v Otenge (supra) did not lay it down as a criterion that a defendant can only succeed in challenging a plaintiff’s alleged headship of a family when he positively proves that another person else is the head of that family. Or, to put it more widely, Akrofi v Otenge (supra) did not lay down a restrictive rule that a defendant who challenges a plaintiff’s locus standi can succeed only if he discharges the double onus of (a) disproving the plaintiff’s locus standi, and (b) proving positively that another member of that family is vested with the locus standi.

Let me talk briefly about the case of Akrofi v Otenge (supra). In that case the plaintiff’s capacity to sue as head of his family was challenged. Evidence was led by the plaintiff, which was supported by a member of the family, that he was the head of family. With this positive finding, the Supreme Court held that the defendants who denied the plaintiff’s capacity should have mentioned the person they contended was the head of family and, if necessary, called witnesses to support them, especially since in Ghanaian local communities the heads of the various families were well known and it was thus easy to come by that evidence. The court said the defence led no evidence at all on this issue, and

[p.157] of [1999-2000] 2 GLR 148 that the only evidence was that which was led by the plaintiff and his witness.

As I understand this decision, it only follows the normal rule of evidence that it is only credible evidence which the court is entitled to rely upon, and that if credible evidence was led by one party, whereas the other party leads no evidence at all, the court in accepting the only credible evidence on record will not be faulted. In fact the facts in the Akrofi v Otenge case are no different from this one. Here the plaintiff as well as a principal member of the family gave evidence that the plaintiff is the head of the Didiye alias Bariyo family. The second plaintiff witness, as principal member of the family, is in a very unique position to tell the court who the head of their family is. It is evidence against his, and that of the family’s interest, if it is true that the plaintiff is not the head of the family. Hence the second plaintiff witness’ evidence was entitled too much weight, so the trial court was justified in accepting and relying on it.

I notice that counsel for the defendants dwelt a lot on the family which has the right to appoint the head of the family. In short, the plaintiff does not belong to the Didiye family by law, and so could be not its head. It is not denied that plaintiff is a maternal grandson of Kwaku Didiye, so that being a patrilineal family, he is not entitled as of right to enjoy its wealth, let alone to be its head. But it must be pointed out that having a legal right to enjoy a right or occupy a position in a family is entirely different, and must be distinguished from the situation where those who have the right have surrendered same to third party, albeit temporarily. It is not uncommon in this country for communities, towns, etc to appoint even white men who are total strangers to occupy particular stools for their lifetime only. The long and short of it all is that it is for the true owners of a stool, family property etc to appoint a competent person to occupy or oversee same. In such cases the appointment is limited to the life of the appointee which cannot be enjoyed by his children as of right since it is not by a legal right which put him there in the first place. And nobody can begrudge any family from appointing a child of one of its own true members to be its head. That family may have its own reason for doing that. And in this case it was explained that it was the family fetish shrine which had ordained that the plaintiff be made the head, he being Kwaku Didiye reincarnated. This is the family’s story, and who is there outside the family who can say it

[p.158] of [1999-2000] 2 GLR 148 is false in the absence of evidence that that story was put up just to defraud or deceive third parties who have certain rights against the family? None, I dare say!

In my view, there is no hard and fast rule, that is an inflexible rule that inhibits any family from appointing the head from the paternal or maternal side only, as the case may be. Any competent, trustworthy and helpful person related to the family by blood may be appointed by the family. And even assuming the family, if properly constituted, decides to appoint a total stranger as its head (even though I am yet to see one), legally and strictly speaking, such an appointment cannot be rejected by any outsider to the family.

Next, the appointment of a head of family need not be done at a formal family meeting, as the ground of appeal sought to say. A person may become head of family by popular acclamation or acknowledgement. The law on the preceding two points may be found in the case of Hervie v Tamakloe (1958) 3 WALR 342 referred to in Ollennu’s Principles of Customary Land Law in Ghana (1962) at p 146 where it is stated: “The appointment of a person as head of family is neither automatic nor does it devolve on any person as a matter of right. As with the appointment of a successor to a deceased person it is made by the elders of the family either formally and expressly or by implication, as where they accept and support acts of headship performed by one not expressly elected as head. In selecting an appointee the elders are concerned primarily with choosing the person most fitted for the posts: they therefore may go outside the natural line of descent if they think fit, ie, in patrilineal areas a head may be selected from the maternal line if no suitable candidate is available in the male line; likewise an appointment can be made from the paternal line in a matrilineal area.”

(The emphasis is mine.) In my view there was sufficient evidence on the record to support the trial court’s finding that the plaintiff is the head of the Didiye family of Abomosarefo. Hence, all the authorities counsel cited which revolved around internal family conflicts as to headship of family are not relevant, so I need not waste time on them.

B The documents

[p.159] of [1999-2000] 2 GLR 148

It was the plaintiff’s case that it was in 1990 that they discovered certain documents that conferred title to the land on them. The documents were pleaded as follows:

“(a) A report of an enquiry submitted by a travelling commissioner in the Gold Coast, Sergeant MacPeterson in 1845, entitled “Report on Enquiry into Akwamus and Kwahus Land Dispute”, and enclosures in this report namely:

(b) Payment receipt from Akwamus to Kwaku Didiye.

(c) An agreement between Nkame chief, Bekoe and the king of Kwahu, Kwame Akuamoah.

(d) An agreement between Nkame chief, Kwasi Bekoe and Kwaku Didiye.

(e) An agreement between Kwaku Tannor, chief of Burukuruwa and Kwaku Didiye from Abomosarefo.

(f) Sketched plan of land showing the boundaries of land owners, ie Akuamoah, king for Kwahu; Kwasi Bekoe, chief of Nkame; Kwaku Tannor, chief for Burukuruwa and Kwaku Didiye from Abomosarefo.”

These documents went in evidence through an official of the National Archives office as exhibit A with all the enclosures. The existence of these documents is not in doubt. It is the effect that they are intended to have, as put forward by the plaintiffs, which the defence seriously reject. The trial judge gave very serious consideration to these documents and came to the conclusion that they were enforceable at law. The trial court’s reasons for accepting them were these:

“In the first place, the contents of exhibit A were made by a disinterested party and for that matter more likely to be true having regard to the fact that it was made at a time when the present controversy was not contemplated. It was again not partisan and for that reason more trustworthy; further, the said agreement which is found at page 18 to which the then occupant of the Burukuruwa stool was a party constitutes a declaration against his interest which by the rules of evidence bind the present occupant of the Burukuruwa Stool, the defendant herein who acknowledges Kwaku Tannor as the first chief of Burukuruwa . . .”

[p.160] of [1999-2000] 2 GLR 148

I accept these reasons as valid in law and appropriate in the circumstances of this case.

At this stage let me consider the defendant’s challenge to these documents and the court’s findings on them. In CA 14/97, ground (iii) provides that the learned trial judge was wrong in relying on the document tendered by the plaintiff in upholding that he had title to the land. And in the notice of appeal in CA 15/97, grounds (ii), (iii), (iv) (v), (vi) all deal with these documents. And for their full force and effect, I will consider them in the order as argued by counsel. I must state here that a full submission was made by defence counsel in CA 15/97 and the same submission was adopted in CA 14/97; so I will concentrate on CA 15/97 henceforth.

Counsel argued grounds (ii) and (vi) together. These grounds read:

“(ii) The plaintiff failed to establish the jurisdiction of Sgt MacPeterson’s one-man 1845 military commission of enquiry into the Akwatnu v Kwahu land dispute, the report or decision of which inferior, quasi-judicial tribunal, dated 22 April 1845, was the plaintiff’s sole root of title to the land in dispute. Neither did the plaintiff establish Sgt Mac-Peterson’s jurisdiction to take part in the alleged sale and partition of the lands including the land in dispute as set out in the said enquiry, report or decision.

(vi) The plaintiff’s exhibit A was wholly inadmissible on the ground that in the absence of jurisdiction,

Sgt Mac-Peterson was not a public officer carrying out the said enquiry as a public duty.”

Counsel for the defendant concedes that exhibit A is an ancient document. This fact alone makes it admissible in evidence. But he says this fact alone “does not establish the validity of the document or its contents.” What are counsel’s reasons? First, he said the court ought to have considered “that a party who is relying on the proceedings, judgment or order of an inferior court or tribunal bears a preliminary onus of proving the jurisdiction of that inferior body, since there is no presumption of jurisdiction in an inferior court or tribunal whereas there is such presumption in favour of a superior court . . .” He cited the cases of Bakuma v Ekor [1972] 1 GLR 133, CA (holding(2)) and Okomfo Afuah v

[p.161] of [1999-2000] 2 GLR 148

Sarbah [1974] 1 G LR 147. No doubt those cases were rightly decided, and the principle involved is sound law. But what we have to bear in mind is the period in this nation’s history that the said enquiry took place. It is well known that no formal court structures existed then, let alone a classification into superior and inferior courts. These decisions therefore would not, and should not, apply to the facts of this case. And even if the Mac-Peterson one-man committee is described as an inferior court or tribunal, that per se would not detract from its validity in view of the fact that no defined courts existed at the time, let alone courts with defined jurisdiction. What we have to satisfy ourselves on are: (1) whether the parties voluntarily submitted themselves to the committee; (2) whether the opportunity was given to the parties to present their case, ie whether the audi alteram partem rule was observed; (3) whether the enquiry related to a defined area; and (4) whether a definite pronouncement was made. From the record, the parties appeared voluntarily before the enquiry and presented their case the way they wanted, there was a defined area of the enquiry and a definite pronouncement was made. There was also undisputed evidence that the National Archives affirmed these documents from the colonial office over twenty years ago, therefore they qualify as ancient documents within the meaning of section 146 of the Evidence Decree, 1975 (NRCD 323). This provides that:

“146. Authentication or identification of a writing may be by evidence that the writing—

(a) is in such condition as to create no suspicion concerning its authenticity;

(b) was in a place where, if authentic, it might be expected to be; and (c) is at least 20 years old at the time it is offered.”

Ancient documents prove themselves. Thus once exhibit A is authentic, genuine and comes from proper custody, the contents thereof must be accepted in law, without more, in the absence of any credible evidence to the contrary.

(C) The Illiterates Protection Ordinance

This is the subject of ground (3) of the grounds of appeal. Counsel for the defendants’ submission is that the agreements show on their face a conspicuous absence of a jurat indicating that [p.162] of [1999-2000] 2 GLR 148 the illiterate party be bound by it, or that he did understand its contents before making his mark to it. According to counsel, this sins against the Illiterates Protection Ordinance, Cap 262, (1951 Rev). That agreement was dated 19 April 1845 and was therefore made at a time Cap 262 had not come into force. The decision in Fori v Ayirebi [1966] GLR 627, SC will thus not apply to this case.

(D) Identification of land

This is ground (4). Counsel for the defendants’ contention was that the plaintiffs were unable to prove the boundaries of the area they were claiming by the writ. In short, counsel said schedule B accompanying the amended writ differed in material respects from the sketch annexed to exhibit A, made by Sgt Mac-Peterson. The trial court found as a fact that the area edged red in the plan attached to the writ of summons is the actual area in controversy between the parties. The evidence supports this conclusion. The defendant also counterclaimed for the same parcel of land as claimed by the plaintiffs. The defendant did not raise any question as to the identity of the land described by the plaintiffs to be any different from what he himself counterclaimed for. At any rate Sgt Mac-Peterson’s sketch was not a full scale drawn-up plan as we know it today, so that a modern day surveyor who takes the sergeant’s sketch will not produce the same kind of stuff; it is more likely to appear quite different. There is also the likelihood that any new plan will look different having regard to the fact that, according to the plaintiffs, part of the land had been submerged in the Volta Lake: see paragraph (8) of plaintiff’s amended statement of claim. It is my view that it will be just not right to say that because schedule B is not on all fours with the sketch in exhibit A, the plaintiffs have not been able to establish the identity of their land.

(E) Is exhibit A entitled to any weight?

According to counsel for the defendants, exhibit A is too suspicious a document to be given any weight. What weight to attach to a piece of evidence is for the trial judge to decide. But he may be faulted if the evidence he gave weight to was wrongly received or was patently false, or clearly unsupportable having regard to other evidence on the record. So I will consider the grounds raised very critically since it is not the appellate court’s duty to make primary findings of fact and for which purpose it decides on what weight to attach to any piece of evidence.

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To begin with, counsel referred to the signatures of Sgt. Mac-Peterson on exhibit A saying they were not original but copied by some unidentified hand whose own signature appears nowhere. This exhibit went in without objection. The first plaintiff witness who tendered it in his capacity as an official of the office of National Archives was not challenged that the signatures thereon were not original to enable him offer an explanation, if possible. This point has been stressed in authorities too numerous to recount that under cross-examination, parties or their witnesses must be given the opportunity to explain any point that may be used later to attack their evidence or credibility. Failing that, the court is entitled to rely on the evidence given. The documents’ authenticity was accepted the moment they went in evidence without objection, so it was not an issue at all and was entitled to such weight as the trial judge deemed fit in the circumstances of the case.

The second point raised was this that the spelling of the relevant personal names and place names in 1845 should have been noticeably different from their spelling today. Counsel gave some examples. But what we should bear in mind is that at any given time different persons may give different spellings to names. This practice even goes on now. This kind of reasoning must seriously be backed by some official document that presents a particular spelling at a particular point in time, or evidence that a particular spelling of a given name has been accepted and applied by the generality of the population. The fact that some writer gave Kwahu a different spelling in 1888 or thereabouts, did not mean the present spelling was not used by other persons prior to that date. Exhibit A was written earlier in 1845. The writer, namely K Nkansa-Kyeremateng, whose work, The Story of Kwawu (1990) counsel cited made no reference to exhibit A. He only referred to a 1888 treaty the spelling in which he had naturally used. Sgt Mac-Peterson was not the writer, nor a signatory to, or even a participant in the 1888 treaty. So what he had written earlier could not be discredited simply on account of the fact that another person used a spelling of a place name different from what he had used. We cannot sit here and speculate whether the present spelling of Kwahu was not known or used prior to 1888 simply because the 1888 treaty did not use it. I reject this.

Next, counsel said British coins were introduced into the Gold Coast in the 1880’s so in effect it was not possible for the

[p.164] of [1999-2000] 2 GLR 148 purchaser, Kwaku Didiye, to have paid the sum of £250 in two shillings British coins. Unfortunately counsel did not disclose the source of this all-important historical fact. This bare assertion is not enough in the light of exhibit A, which says explicitly that the land was paid for in coins.

Fourthly, it was said that the Kwahu Traditional Area became a British protectorate only by treaty dated 5 May 1988. There was thus no such thing either de jure or de facto as British Nkame in 1845. It is noted that the British formally extended their rule to various parts of the country long after they had, in each case, established their presence there, albeit informally. Counsel for the plaintiffs cited relevant passages from the invaluable work of W E F Ward titled, A History of Ghana (3rd ed) in support of this. A typical example is the Bond of 1844 by which the chiefs of Denkyera, Cape Coast, Assin, Dominase, Abura, Anomabu and Domadie formally acknowledged the power and jurisdiction of the British Colonial Government. But there is no doubt to any person who has even had a mere nodding acquaintance with our history that the British were, prior to 1844, exercising dominion over the areas covered by the Bond of 1844. And indeed common sense would dictate that not until one person has been able to establish his influence or even some association with another person (it could take any form like war of conquest or trade), the two persons would not be able to sit down and enter into a formal treaty. So surely, the treaty of 1888 could never have been the start of British influence in the Kwahu area. This point was accepted as evidence that as far back as 1708 the British Union Jack was given to the then Kwahu chief: see pages 3A and 4A of exhibit A. These matters must be raised at the trial to enable proper evidence to be led through experts or other knowledgeable persons to whom the oral history has been retold over time, in the absence of people with personal knowledge of the event. I do not accept this ground.

Finally, the objection was that it was wrong for Sgt Mac-Peterson to have summoned and treated Kwaku Didiye, a Dagarti domestic, as an independent witness in the court dispute between the Kwahus and the Akwamus. I think the least said about this the better. What law was there that prevented a non-native from giving evidence as an independent witness? There was none as far as I could investigate. I would have thought that it is even a more desirable and reasonable practice to have non-natives who have

[p.165] of [1999-2000] 2 GLR 148 knowledge of the issue or issues at stake to give fair and unbiased evidence.

I will endorse the trial court’s conclusion that the land in dispute is the property of the plaintiff’s Kwaku Didiye alias Bariyo family. So the appeals in CA 14/97 and CA 15/97 are both dismissed.

The plaintiff cross-appealed on the ground that the court erred in not making an order of eviction against the defendants in CA No 14/97 and that this has occasioned a substantial miscarriage of justice. I think in a situation like this, where both parties honestly believe the property in dispute belongs to either of them, an order of eviction is not appropriate, for it is only after the judgment that the true owner would become known. Thereafter the loser became liable to be evicted if he denied the winner’s title. So the appropriate order to make in CA 14/97 is that the defendants should attorn tenancy to the plaintiff for the land they occupied prior to the High Court’s judgment. If they have not already done so, they should do so with immediate effect. The cross – appeal fails.

Wood JA. I agree with the judgment read by my learned brother Benin JA and have nothing to add to it.

Brobbey JA. For the reasons stated in the opinion delivered by my brother Benin JA, I agree that the appeals fail and should be dismissed. I should rather caution, for the sake of emphasis, that the successful respondent should not use the outcome of this litigation to harass those who have already acquired vested rights in the disputed land. Those occupiers should attorn tenancy to the cross-appellant’s family, having due regard to the tenancies that existed between the occupiers and the family of the appellants.

Appeal dismissed.

Cross-appeal dismissed.

LSNA