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ABABIO v. GYANFI AND OTHERS


  • appeal
  • 1962-06-04
  • SUPREME COURT
  • 1 GLR 428-435
  • Print

KORSAH, C.J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Customary law?-Land?-Dispute as to title?-Whether evidence that defendants acquired land from plaintiff by conquest constitutes admission of plaintiff's prior title?-Whether burden of proof shifts on to defendants.Evidence?-Traditional?-Admissibility?-Class of persons competent to give traditional evidence of their respective stools.

Headnotes

The plaintiff claimed declaration of title to a part of the Etsi Soadro land. In support of his claim he relied upon traditional evidence and in this he was supported by the Omanhene of Apimanim State who gave evidence for the plaintiff, and in whose state the said land was situated. He relied also upon exhibit D, a judgment delivered by the Divisional Court, Cape Coast, in 1942, granting him as plaintiff therein declaration of title to an area of land which fell within the Etsi Soadro land here in dispute. The second defendant gave evidence (exhibit B) for the chief of Morkwa (who was the defendant in that 1942 action) and his evidence concerned the southern boundary of the Etsi Soadro land. The plaintiff therefore averred that the second defendant was estopped from denying his title. At the trial, however, this plea was not adhered to.In 1954 the defendants entered the Etsi Soadro land, laid claim to it, and granted portions out to tenants. The plaintiff who also had granted tenancies of various portions then instituted this action. The defendants denied his claim, and counterclaimed that that the land was theirs and that they had acquired it from the plaintiff's ancestors by conquest. This allegation, which did not form part of the pleadings was first made when the trial judge questioned the plaintiff during his cross-examination by the defendant's counsel. An objection to evidence relating to this alleged conquest being led was made by the plaintiff 's counsel but it was overruled. When the third defendant gave evidence he filled in the details of this alleged conquest but the judge disbelieved him, and stated that he was "quite convinced that the co-defendant had been coached during the adjournment to come and give this new version of the tradition that his ancestor and his men had met and fought and defeated the plaintiff's ancestor."The trial judge held that: (1) the 1942 action (exhibits B and D) did not constitute estoppel and "from the particular circumstances of this case, the respective claims of the parties in this action must be considered and evaluated quite independently of [that] judgment?" and (2) the evidence of the Omanhene of Apimanim State was inadmissible. He therefore found that the plaintiff had failed to prove his title. He further gave judgment for the defendants on their counterclaim, holding that their traditional evidence was ?"decidedly more probable", and that the defendants were in ?"effective occupation and control [of the land] and exercising rights as owners?". The plaintiff appealed.

Judgement

APPEAL from a judgment of Adumua-Bossman, J. (as he then was) in the Land Court, Cape Coast, in which he dismissed the plaintiff's claim for declaration of title to land, damages for trespass and perpetual injunction and gave judgment for the defendants on their counterclaim.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee- Addo J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Adumua-Bossman, J., (as he then was) sitting in the Land Court, Cape Coast, whereby he dismissed the plaintiff's claim and entered judgment for the defendants thereon and also allowed the defendants' counterclaim.

The suit which was originally between the plaintiff and the first and second defendants was instituted before the Native Court "B" of Asin Manso, Asin Apimanim State and was transferred for trial in the Land Court, Cape Coast; there Nana Akasa Ababio, Odikro of Nyaduom was joined as a co-defendant (hereinafter referred to as the third defendant).

This case concerns a portion of land which forms part of a large tract of land known as and called Etsi Soadro at Ewusem in the Asin Apimanim State and the parties are ad idem as to the area in dispute shown in both plans exhibits Z and A, made by consent of the parties and upon orders of the court, which the parties claim to be attached to their respective stools, that is to say, in exhibit Z as the intermediate between the green line to the north and the purple line to the south, and in exhibit A as the intermediate between the yellow line to the north and purple line to the south.

The action arose out of certain events which took place in 1954. The defendants by their agents, servants, workmen and licensees made cocoa and foodstuff farms on the land in dispute and upon investigation the plaintiff discovered that the defendants claimed the area and had also granted portions thereof to various tenants who have also made cocoa and foodstuff farms.

The plaintiff therefore claimed a declaration of title to the Etsi Soadro land edged green in exhibit Z, and yellow in exhibit A; G500 [p.430] damages for trespass; and a perpetual injunction restraining the defendants, their agents, servants and workmen from interfering with the land.

The first and second defendants whilst simply denying the plaintiff's claim, by way of counterclaim, claimed a declaration of title to a large area of land commonly known and described as Nfumina or Nyaduom stool lands at Nyaduom, edged purple in exhibit Z, and also purple in exhibit A; and an injunction restraining the plaintiff, his agents or servants from interferring with the land.

The second defendant did not enter an appearance but upon a summons for judgment appeared in person on the 21st September, 1956; there was no appearance by or for the first defendant , the third defendant not having then been joined. The said summons, however, with leave of the court was withdrawn and struck out.

By an affidavit sworn to on the 19th September, 1956, by the second defendant and filed on the 21st September, 1956 he sought to have his name struck off on the ground that he had no interest in the land. Again on the 2nd November, 1956, upon the hearing of the summons for directions the second defendant appeared in person and by his affidavit filed on the 1st November, 1956, headed "Affidavit in support of statement of defence?", reinterated his disinterestedness in the land.

Subsequently, by a formal motion on notice supported by an affidavit, the second defendant prayed the court for an order deleting or cancelling his name from the case. Upon the hearing of the application Mr. Benjamn (Junior) appeared for the second defendant and the record reads: "Mr. Benjamin states application not pressed". Thereupon the motion was struck out with costs to the plaintiff. The second defendant therefore remained a party but took no further part in the proceedings nor did he attend the trial thereafter.

In support of the plaintiff's claim traditional evidence was led of the Etsis?-the ancestors who were the aboriginal inhabitants of the land which was possessed as owners thereof.

According to the plaintiff, many years ago one Akroma Apim, a native of Nfumma in Ashanti migrated to Etsi soadro, and on application by him to Boaten Paitu, a predecessor of the plaintiff, he was granted a portion of land on which he settled, and in consideration of this grant, a customary drink of G4 13s. was paid together with one sheep and one bottle of rum, quite independent of the tribute. The settlement was near a garden-egg farm (nyadua fuom) cultivated by Boatemah a sister of the grantor. The settlement was therefore designated "Nyaduom" (a Twi word for garden-eggs farm) which is situated on the far north of exhibit Z and A and outside the area in dispute. The boundaries of the portion granted were indicated. Not long after the grant Akroma Apim married Boatemah and because of the marriage no tribute was exacted thereafter from him.

In 1942, the plaintiff had a dispute with the Chief of Morkwa in respect of the portion between the yellow and purple lines in exhibit Z and well within the area now in dispute in a land suit heard by the Divisional Court, (now Land Court) Cape Coast?-vide exhibits B (evidence of Kwesi Ackumpong, second defendant herein) and D (judgment). The second defendant as abusuapanyin of the Kona family of Nyaduom gave evidence at the instance of the chief of Morkwa and [p.431] stated among other things that "Nyaduom land bounds with Morkwa land but not the present plaintiff's land". Judgment was delivered in favour of the plaintiff for a declaration of title to the area then in dispute.

From the boundaries of Nyaduom settlement of over 100 years ago coming southwards within the plaintiff's land, subjects of the plaintiff's stool as well as strangers were, with the plaintiff 's permission, farming on the land; but apart from these, the defendants, particularly the second defendant, purported to grant permission to other people to farm on the land culminating in the institution of this action.

The plaintiff pleaded estoppel and averred that the second defendant was estopped from denying the plaintiff's title. In support thereof, exhibits B and D were tendered and there was conclusive evidence at the trial that upon the institution of the action the first defendant was the accredited abusuapanyin of the Kona (Ekuona) family and even when the third defendant was made Odikro.

The defendants, whilst barely denying the plaintiff's claim, by their evidence embarked on acquisition or occupation of the land by conquest in support of their counterclaim. This claim by conquest was not pleaded and was in fact introduced by the learned trial judge in examination of the plaintiff during cross-examination by the defendants' counsel. This line of evidence was continued by the third defendant who gave evidence of tradition on the first day of his evidence on the joint behalves of the defendants, and, inter alia, stated:

"I am Odikro of Nyaduom?-and a farmer?-I know the land in dispute ?- I attended the survey and pointed out to him the area we are claiming and I showed him the tenants on the land?-I also showed him the fetish groves we have on the land. According to my family tradition the land was acquired in this way:

My ancestor by name Akroma Ampim migrated from Ashanti ?- He led 1,000 men and they fought their way down from Ashanti to the area of this land ?- They fought their way down to the offin River ?- Accompanying them was an Ohemaa by name Nana 'Amofa?' ?- They stopped at a place called 'Mfumena' which is situate on the upper or Ashanti side of the Offin river ?- And when they stopped at Mfumena the Ohemaa commenced farming and made a garden-egg farm on the other side of the Offin ?- She then decided to move from Mfumena to the place where she had made the garden-egg farm ?- Following her decision she moved down from Mfumena with the Chief Akroma Ampim and they settled there ?- At that time there was only a remnant of the 1,000 men with whom they set out originally, so the remnant also accompanied them to settle at this new site of the garden-egg farm ?- Having settled there people began to apply to them for portions of the land to make rubber ?- One such person was called Jetua to whom my ancestor gave a portion of the land and he made a village of Jetua - Krome where rubber business was carried on ?- Another person was Kofi Benneh to whom was given a place called 'Kofi Benneh Aworoso' where he also made a settlement-His main work was hunting. In course of time when our ancestors were settled at the place now Nyaduom, they met and formed boundaries with other people ?- On one side they met Nana Wadie Chief of Asamang ?- On another side they met a man called 'Onipa Antwi' Kwasamang ?- and on another side opposite Nyaduom facing south Nana Oduro of Ewisem ?- On the top side, the Offin was our boundary.

I have heard the traditional history related by the plaintiff and his witness Nana Pramu No. 7 ?- My ancestors never related that story to me."

In the course of his evidence-in-chief he continued thus:

Q. Who according to your family tradition, did your ancestor Akroma Ampim meet on his arrival in the locality of this land?

A. He met one Awuma Petu, Chief of Swedru at his town Swedru.

Q. According to your tradition, did anything happen between the two?

A. Yes ?- I was told they fought, and my ancestor got the upper hand and drove him back and where he stopped my ancestor placed his war fetish at the stop." [p.432]

Plaintiff's counsel objected that the defendants not having pleaded acquisition of the land by conquest were barred from leading such evidence but the objection was overruled and the evidence admitted.

The learned trial judge in his judgment purported to reject the defendants' evidence of acquisition by conquest in support of the counterclaim in the following terms:

"I felt quite convinced that the co-defendant had been coached during the adjournment to come and give this new version of the tradition that his ancestor and his men had met and fought and defeated the plaintiff 's ancestor ?- and I straight - away told the co-defendant so as soon as he gave this new evidence.

Be that as it may ?- it is the tradition which he gave on the first day of his evidence which I accept, confirmed as that appears to be by the probabilities of the case and the concrete fact of the settlement of all the lands involved, i.e. not only the area in dispute but the area to the north as far as the Offin river and the area to the south-east as far as the junction of the 'Hwedua-Wura' and the Offin river.

The probability to which I have referred is that it is decidedly more probable that the defendant's ancestors settled on and spread over occupied lands until they came in course of time to meet and form boundaries with occupiers of neighbouring lands than that they fought before acquiring the areas they now occupy.

As has been said over and over again and in case after case, the ultimate decision must rest on who is first found in effective occupation and control exercising rights as owner within living memory ?- and it is by that beacon light that I have been guided in my consideration of this case. The evidence as a whole satisfies me that it is the defendants' side who have been found to be in effective occupation and control and exercising rights as owners, not only of the area in dispute but the area northwards to the Offin river and south-eastwards to the junction of the stream 'Hwedua-Wura' and the Offin, and that their claim of ownership or title to the disputed area shown in both plans exhibits Z and A is adequately and sufficiently established by their traditional story as well as the evidence of their occupation and exercise of acts of ownership in respect of the disputed area."

Before dealing with these findings it would be pertinent to dispose of the plaintiff's plea of estoppel founded on exhibits B and D. The attitude of the second defendant at the trial made it incumbent on the learned trial judge to exercise his powers under section 90 of the Courts Ordinance 1 which was then in force and provides that:

"In any cause or matter, and at any stage thereof, the Court, either of its own motion or on the application of any party, may summon any person within the jurisdiction to attend to give evidence, or to produce any document in his possession and may examine such person as a witness or expert, and require him to produce any document in his possession or power, subject to just exceptions."

It is true that at the trial, plaintiff's counsel stated that the plea was not adhered to and rather resiled from it: none the less on the evidence as the portion in question fell well within the area now in dispute, as already indicated, a finding in that behalf should have been made in conformity with the settled principles of estoppel.

Referring to the second defendant in the course of his judgment, the learned trial judge stated, inter alia:

"The evidence which Kwesi Ackumpong gave in the action against the chief of Morkwa was tendered and admitted as exhibit B. It appears from exhibit B that at the trial of that action about June 1942 he alleged that he was head of the family and that the Nyaduom chief was dead and he was caretaker of the stool and of Nyaduom lands and had been so for three or four years. He continued his evidence as follows: 'We have lands attached to our stool. We [p.433] form boundary with the defendant. We start from Kamananta (Kumananta) stream to Probaa (Probon) Bippo, then to Akankansu, then to Kwasamang lands.' By reference to the plans in use for this trial, it will be found that it is approximately the southern boundary line of the area in dispute in this action from an easterly to a westerly direction which he then gave. He only spoke a falsehood in so far as he stated that the boundary was with Morkwa but not with the plaintiff's stool. In his cross-examination also he explained that the present plaintiff sold lands beyond the boundary claimed by the Nyaduom family which caused his chief, Kobina Fosu (Fono), to sue, and that although the action was struck-out another had been instituted and was pending."

In further reference to the second defendant the learned trial judge held that he was satisfied that by 1945 he had ceased to hold any position but remained merely as an elderly member of the family and that the plaintiff has failed to establish any good or sufficient reason for instituting an action against him personally.

The second defendant's evidence (exhibit B) makes it clear that quite apart from the pendency of the case between his family and the plaintiff's stool, he was fully aware that it was the land south of his family land which was in dispute between the plaintiff and the Morkwa chief and approximately the southern boundary of the area in dispute in the instant case. Nevertheless the learned trial judge held, inter alia:

"It seems to me, from the particular circumstances of this case, that the respective claims of the parties in this action, must be considered and evaluated quite independently of the judgment obtained by the plaintiff against the Morkwa chief in respect of the southern portion of the land in dispute. Upon that consideration and evaluation, I am compelled by the nature of the evidence adduced on behalf of the plaintiff to hold, as I have already intimated, that he has failed to establish the title which he claims."

Suffice it to say that it is difficult to support the view so held in relation to the relevancy of exhibit B, and also the consideration and evaluation of the evidence in support of the plaintiff's claim which was proved at the trial.

By the defendants' new claim that they occupied the land by conquest, they thereby admitted that the land originally belonged to the plaintiff's predecessors who were vanquished by the defendants, and the onus shifted on to the defendants to prove the conquest, and since the only material evidence of acquisition by conquest in support of the counterclaim was rejected, judgment should have been given for the plaintiff upon his claim and on the defendants' counterclaim.

Upon due consideration of the evidence objectively, the learned trial judge was not entitled and indeed erred in holding with reference to the third defendant, thus:

"It is the tradition which he gave on the first day of his evidence which I accept, confirmed as that appears to be by the probabilities of the case and the concrete fact of the settlement of all the lands involved, i.e. not only the area in dispute but the area to the north as far as the Offin river and the area to the south-east as far as the junction of the 'Hwedua-Wura' and the Offin river.

The probability to which I have referred is that it is decidedly more probable that the defendants' ancestors settled on and spread over unoccupied lands until they came in course of time to meet and form boundaries with occupiers of neighbouring lands than that they fought before acquiring the areas they now occupy.?"

The tradition which the third defendant gave on the first day of his evidence in denial of the plaintiff's claim and also in support of the counterclaim was acquisition or occupation of the land in dispute by [p.434] conquest, already referred to, was rejected by the learned trial judge. It is inconceivable therefore, how the same tradition could at a later stage in the course of the judgment be acceptable.

The general findings of fact in the defendants' favour are not supported by the evidence; and these findings and conclusions of the learned trial judge are not supported by the decided cases cited and the quotations from the authorities upon which he relied.

In the Privy Council case of Kponuglo v. Kodadja 2 per Lord Alness it was said:

"The principal question to be decided in the appeal would accordingly seem to be ?- Has the respondent discharged the onus which rests upon him of demonstrating beyond reasonable doubt that the title to the disputed land is in him? The appellants say ?- Nay; the respondent says ?- Aye."

In that case as in the present case the evidence adduced was of two classes: (1) traditional evidence; and (2) evidence of use and occupation of the land. But in that case it was held that on the evidence the respondent failed to discharge the onus of establishing beyond reasonable doubt that the title to the disputed area is his, either by gift or exclusive possession. In the instant case, however, before and during its pendency, the plaintiff and the defendants made grants whereby both parties lay claim to acts of possession within and beyond the disputed area as indicated on exhibit A and supported by the surveyor's evidence; and the occupation as literally littered on the land, in the circumstances could not be regarded as the determining factor in the nature and origin of the tenure of the occupiers.

Referring to the Omanhene of Apimanim State a witness for the plaintiff whose evidence the learned trial judge held to be inadmissible even though he is in fact deemed to know the boundaries of his territory and in whose state the land in dispute is situated, reliance is placed on the Privy Council case of Kuma v. Kuma3 where the eligibility of boundary owners to give traditional evidence of how their respective ancestors and/or their families acquired their lands and how the neighbouring owners also acquired their lands was considered.

The case of Ofuman Stool v. Nchiraa and Branam Stools,4 also cited, simply illustrates the class of persons such as stool linguists and other stool office-holders who are competent to give traditional evidence of their respective stools.

On the authorities the evidence of the Omanhene of Apimanim was clearly admissible and should have been considered, but was dismissed by the learned trial judge in the manner following:

"The eighth witness was the Omanhene of Apimanim who with a display of most touching loyalty, came forward to support his sub-chief with the evidence that he had heard: ?'by tradition that the Nyaduom people migrated from Ashanti and acquired land from his sub-chief, the plaintiff or rather his predecessors?'. As to that evidence, it is true its admission was not objected to or opposed, but I am nevertheless satisfied that it was not competent to the Omanhene to give it and that it was strictly speaking inadmissible therefore." [p.435]

Continuing in the course of his judgment he further stated:

"I do not therefore consider the tradition so loyally put forward by the Omanhene to support his sub-chief, the plaintiff admissible. But even admitting it quantum valeat, it seems to me quite valueless in the form in which it was given.?"

On considering the evidence as a whole and for the reasons indicated we allow the appeal and set aside the judgment appealed from. In lieu thereof there will be judgment for the plaintiff for the declaration of title sought to the area in dispute shown in both plans exhibits Z and A; G400 damages for trespass; and the order of perpetual injunction sought is also granted. The defendants' counterclaim is dismissed and judgment entered for the plaintiff. The appellant will have his costs in this court fixed at G159 15s. 3d. and his costs in the court below. Counsel's costs are assessed at 150 guineas and the other costs to be taxed. Any costs paid by the appellant in pursuance of the order of the trial court should be refunded.

Court below to carry out.

Decision

<P>Appeal allowed.</P> <P>Judgment for plaintiff.</P>

Plaintiff / Appellant

B. E. Kwaw-Swanzy

Defendant / Respondent

J. D. Reindorf

Referals

(1)   Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24

(2)   Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C.

(3)   Ofuman Stool v. Nchiraa and Branam Stools (1957) 2 W.A.L.R. 229

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