Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 ACOLATSE AND OTHERS v. AHIABLEAME | GhanaLegal - Resources for the legal brains

ACOLATSE AND OTHERS v. AHIABLEAME


  • appeal
  • 1962-07-13
  • SUPREME COURT
  • 2 GLR 34-45
  • Print

KORSAH, C.J., SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Customary law?-Land?-Proof of title?-Findings of fact of native court affirmed on appeal?-Whether those findings unimpeachable?-Whether appellate court entitled to disturb them.Wills?-Executor?-Capacity to be sued?-Plots of land devised to separate individuals in separate portions?-Whether executor has interest in the said property?-Whether he has capacity to defend actions concerning title to land in dispute.Practice and procedure?-Writ?-Title of suit?-Amendment of title by court proprio motu?-Point of law arising on face of proceedings.

Headnotes

The plaintiffs sued the defendants for recovery of possession of certain land devised to the second and third defendants by the will of one Togbe Sri II, deceased, on the ground that the said Togbe Sri II was not the owner of the land in dispute, but had been in possession of it by virtue of a grant from the plaintiffs' father "for occupation for life." The first defendant, E. F. Acolatse, was the executor of the estate of Togbe Sri II, and defended the actions in that capacity.The trial native court found for the plaintiffs and this judgment was affirmed by the native appeal court. On further appeal to the Lands Division of the High Court, the judgment was varied to read thus:"Appeal in respect of the land on which Togbi Sri II built his first house is allowed in that this court finds that that was an absolute gift; but confirms the decision of the trial court confirmed by the native appeal court for return of the other portions of land on which Togbi Sri II built the two other house, together with the buildings, to plaintiffs-respondents-respondents."Both parties appealed, the plaintiff alleging, inter alia, that it was not competent for that court to vary the concurrent findings of the native court and native appeal court on questions of fact and custom.

Judgement

CROSS-APPEALS against a judgment dated the 22nd August, 1959, of the Lands Division of the High Court, Ho, presided over by J. L. Minnow, Esq., Commissioner of Assize and Civil Pleas, wherein he varied a judgment of Dzodze-Hevi-Penyi-Ave-Afiadenyigba Native Court "B" which had been affirmed by the Anlo Native Appeal Court "A". The trial native court had given judgment for the plaintiffs in an action for recovery of possession of land together with three houses situate thereon.

JUDGMENT OF ADUMUA-BOSSMAN, J.S.C.

These are cross-appeals against a judgment dated the 22nd August, 1959, of the Lands Division of the High Court, Ho, presided over by J. L. Minnow, Esq., Commissioner of Assize and Civil Pleas, as he then was. The parties will be referred to shortly throughout this judgment as the plaintiffs and defendants respectively. By his judgment the learned commissioner allowed in part, and at the same time dismissed in part, an appeal by the defendants against a judgment of the Anlo Native Appeal Court "A" which confirmed a judgment of the Dzodze-Hevi-Penyi-Ave-Afiadenyigba Native Court "B" whereby [p.36] the plaintiffs claim for recovery of possession of a plot of land situate in Dzodze described in the writ of summons, together with three houses erected thereon by the defendants' predecessor-in-title, Togbi Sri II, was upheld. The learned commissioner allowed the appeal in part in that he held that the judgment appealed against, in so far as it related to the house admitted to have been built first out of the three, and the portion of the plot in dispute on which it was built, was wrong, and he therefore set aside the judgment for recovery of possession of that first built house and the plot on which it is standing. He dismissed the appeal in part in that he held that the judgment in so far as it related to the remaining two houses and the portions of the plot in dispute on which they were built, was right, and he therefore affirmed the judgment for recovery of possession of those two houses and the portions of the plot on which they are standing. The concluding portion of his judgment against which both parties have now expressed dissatisfaction is the following:

"The judgment is varied to read thus: ?- Appeal in respect of the land on which Togbi Sri II built his first house is allowed in that this court finds that that was an absolute gift; but confirms the decision of the trial court confirmed by the native appeal court for return of the other portions of land on which Togbi Sri II built the two other houses, together with the buildings, to plaintiffs-respondents-respondents."

Notice of appeal was filed on behalf of the defendants first, by which the learned commissioner's judgment was challenged on the grounds that:

"(1) The learned commissioner was wrong in awarding portion of the land in dispute to the plaintiffs after holding that the plaintiffs and their family were estopped from disputing that the grant to Togbi Sri II was an absolute gift; and

(2) The judgments of the native courts, which were upheld in part by the learned commissioner, are manifestly against the weight of the evidence and insupportable."

Subsequently by notice of appeal filed on behalf of the plaintiffs the judgment was challenged on the grounds that:

"(1) The learned commissioner was wrong in holding that the respondents (plaintiffs) are estopped from asserting ownership to the land on which the first building stands.

(2) The learned commissioner was wrong in holding that any development of the land by Togbi Sri II during his 40 years' reign, operates as an estoppel against the respondents herein.

(3) Both native courts well versed in Anlo native law and custom held that the land on which the first building stands was not a gift but a life-interest, and it was not competent for the learned commissioner to vary a decision based on facts and custom."

Before proceeding to consider each of the appeals in turn it appears necessary to deal with and dispose of a point of law which arises on the face of the proceedings. The point is that the first defendant, Emmanuel Fred Acolatse, was sued and defended this action in his capacity as executor of the will of the late Cornelius Kofi Kwawukume alias Togbi Sri II, probate of which was granted to him by the Supreme Court on the 8th July, 1957. By clauses 5 and 6 of the said will, the plot of land and the houses thereon, the subject-matter of the action and this appeal, were devised in separate portions?-not to the first defendant in trust for the second and third defendants, in which event alone he would have been vested with interest or title as trustee and as such become liable to be sued when the question of ownership or title of the said property arises [p.37] for determination?-but direct to the said second and third defendants respectively for themselves and their children by the testator. In these circumstances the first defendant as executor has no interest whatsoever in the said property, and any dealing by him with the same, such as the collection of rents therefrom as alleged, cannot be in virtue of any authority or power derived from his appointment as executor by the will.

The legal position was lucidly and impressively explained by Michelin, J., in the leading case France (Executors of the Will of Dr. Quartey-Papafio) v. Quartey.1 The explanations are important and instructive enough, it seems to me, to deserve citation as hereunder:

"Prior to the coming into operation of the Land Transfer Act, 1897 (i.e., prior to 1st January, 1898), there was considerable difference in England, in regard to the operation of wills of realty and wills of personalty.

A will of realty before the Act, immediately on its coming into operation (i.e., from the death of the testator) vested in the devisees under it, the land devised in it to them. These devisees might, if they liked, disclaim the land; but until they did so, they were regarded by law as the owners of it.

The law simply regarded the will as a conveyance of property.

In the case of a will of personality, however, the effect of the will was from the death of the testator, to vest the property, to whomsoever it might be bequeathed, in the executor...

In England, this difference in the operation of wills of realty and wills of personality has been abolished as to the wills of persons dying on or after 1st of January, 1898. Freeholds however devised, now immediately on the death of the testator vest, in the executor who is a trustee of them, subject to the testator's debts, for the devisee, or if they be not devised by the will, for the testator's heir (See Land Transfer Act, 1897, sections 1 and 2).

It is clear therefore that in this case, the law to be applied is the law which was in force in England prior to the passing of the Land Transfer Act, 1897.

That being so, unless the real property was specifically devised to trustees, in trust for the beneficiaries mentioned in the said will, only the personal estate would vest in the said executors or trustees, on the death of the said testator, and the fact that it is stated that in the said will, the executors are also called trustees, would not in any way affect the case, unless the land had been so devised to them as aforesaid."

See also G. B. Ollivant Co. Ltd. v. Haroun Brothers.2 It seems clear therefore that the first defendant should not have been sued in his capacity as executor, but rather personally, when it would have been open to him to justify his actions by any authority derived from the second and third defendants to whom the property was devised. In the circumstances the capacity in which he was sued, and he defended, require to be amended, and accordingly the writ is hereby amended by the deletion of the words "Executor of the Estate of the late Cornelius K. Kwawukume (Togbi Sri II) of Anloga" after the words "Fred E. Acolatse of Keta" in the title of the suit.

Turning now to the appeals it seems more logical to deal firstly with the plaintiffs' appeal challenging the propriety of the learned commissioner's reversal of a portion of the judgment of the trial court affirmed by the native appeal court, before turning to consider the defendants' appeal. It becomes necessary then to examine the grounds of [p.38] appeal filed in connection with it and hereinbefore set out, and in doing so it will be observed that although both grounds (1) and (2) allege that the learned commissioner was wrong in holding that the plaintiffs are estopped from asserting ownership in respect of the first-built house and the plot on which it is situate, it is not further indicated in either ground of appeal how or in what manner the learned commissioner is alleged to have erred. The third ground however does give the reasons why it is contended that the learned commissioner's decision as to the first house and its plot is wrong, and it appears necessary therefore to examine the contentions on that third ground, especially as it seems to cover the other two grounds. In substance, it is the oft invoked ground of appeal that an appellate court is not entitled to disturb findings of fact made by a trial court, particularly when they have been affirmed by a first appellate court. This proposition however, has always been subject, as is well known, to the limitation that the findings claimed by the respondent to be unimpeachable, can always be shown or demonstrated to be wrong. In this connection, Lord Atkin in a case concerned with appeals from native tribunals which has become classic, Abakah Nthah v. Anguah Bennieh, 3 has expressed the proposition and its limitation in these words:

"By colonial legislation all suits relating to the ownership of land held under native tenure are placed within the exclusive original jurisdiction of native tribunals. It appears to their Lordships that decisions of the native tribunal on such matters which are peculiarly within their knowledge, arrived at after a fair trial on relevant evidence, should not be disturbed without clear proof that they are wrong."

The proposition and its limitation were re-affirmed by the Board in Agyare v. Kwakye4 and in Ibrahimah v. Gariba.5

The question therefore is, is there or is there not, clear proof that the decision of the trial court, affirmed by the native appeal court, is wrong?

In setting out to find an answer to this question, it is to be remembered first and foremost that the plaintiffs, claiming recovery of possession, assumed the onus, in the words of Lord Alness in Kponuglo v. Kodadja, 6 ?"of demonstrating beyond reasonable doubt that the title to the disputed land is in him," or rather, in them, in this case. That this principle, that a plaintiff who claims land has the burden of proving the ownership which he claims, is as applicable in a trial in a native or local court as in the High Court is demonstrated by several decisions of the West African Court of Appeal and the Judicial Committee of the Privy Council, and it will be sufficient to refer only to Ninson v. Aduwah, 7 an appeal to the Judicial Committee in a case concerning the ownership of land which commenced from a native tribunal. The judgment of the Board commences with a discussion as to the party on whom the onus of proof lay, as follows:

"In form the action out of which this appeal arises was one to recover 25 damages for trespass to plaintiff's land. In truth it was an action for the recovery of an area of property situate at Agona Abodom in the Central Province . . . and at time of action brought, and for over nine years before, in the possession of the defendant and his predecessor in title. Such [p.39] difficulty as the case now presents seems due to the fact that the Native Tribunal before which it first came, as well as the Full Court ... from which the present appeal is brought, regarded the claim as one of trespass to land of which the plaintiff was to be treated as being in possession, and not as an action in ejectment against a defendant who, himself in possession, had put the plaintiff to proof of her title by his plea of not guilty."

In the ultimate result the Board held that: "this plaintiff in ejectment has entirely failed to prove her own title and on that ground alone her action must fail."8 See also Bansah v. Kwadjo,9 where Graham Paul C.J. delivering the judgment of the court stated:

"We have, however, considered carefully the evidence given by and for the Plaintiff in the Tribunal, and we have not the slightest doubt that the Tribunal was right in refusing to entertain the claim of the Plaintiff on the evidence adduced in support of it. The Plaintiff most certainly failed to discharge the onus of proof upon him in making his claim to the land in question."

It seems plain therefore that the applicability of the rule as to the onus of proof in land causes in the native (now local) courts is very real indeed. Bearing that in mind, therefore, let us now proceed to an examination of the respective cases of the parties, beginning necessarily with the case of the plaintiffs. Upon a critical examination of the evidence adduced by the first plaintiff on behalf of all of them and by their witnesses, it will be found that the crucial allegation which is the foundation of the case, namely, that the admitted grant by their father of the plot to Togbi Sri II was "for occupation for life," was not only unproved and unsubstantiated by the first plaintiff's evidence, but was decisively discredited by the evidence of the witnesses. The first plaintiff's material evidence was the following:

"About 40 years ago when late Togbi Sri II visited Dzodze he used to lodge with my father Ahiableame in his own house. The visits continued till Togbi Sri II?'s followers grew in size. Therefore Togbi Sri II asked my father to grant him a site to make a small building to provide him and his followers a lodging place when on visit to Dzodze. My father Ahiableame agreed and granted the site to Togbi Sri II whereon he built a small building. The site was not gifted to Togbi Sri II but was only granted to him; and it was only a small site whereon is now situated the building in which one Sepenu lived."

Pausing here, it seems reasonably clear that if all that did really happen is what the witness has described above, then there is no ground or reason for holding that the grant was one "for occupation for life," as it was rather the ordinary usufructuary tenancy or tenure referred to by Lord Haldane in Amadu Tijani v. Secretary, Southern Nigeria10 in these words: "A very usual form of native title is that of a usufructuary right, which is a mere qualification of, or burden on, the radical or final title." Sarbah refers to it in his Fanti Customary Laws (1st ed.) Ch. IV "Tenures" at P. 56 as "the granting of permission to others and outsiders to reside on or cultivate the lands of a family, or Stool, or village community, a practice of the greatest antiquity which was in times past more universal than sale of land which is of comparatively modern growth." He goes on, at page 60, under the same chapter dealing with "Tenures," to explain [p.40] that "Grants of land for building purposes are very frequently made in the form of perpetual leases, either ... by way of reward for past services, or on the ground of mere affection or friendship. Lands so granted are resumable by the grantor and his successors, on failure of successors in the grantee's family."

It is clear that the evidence did not clearly and unambiguously establish a grant for the lifetime only of the grantee as pleaded, although admittedly it is sufficiently specific that it was not a grant by way of outright gift . The witness then continued as follows:

"My father was then living in village. Later he was informed that Togbi Sri II was erecting another building in addition to the one already erected, and the new building was near the road. My father then came to ask Togbi Sri II why he was erecting another building on the land without his knowledge, and Togbi Sri II asked him (Ahiableame) to allow him erect the building as it would only serve as profit to him (Ahiableame) as the landowner. My father therefore allowed the new building to go on."

Pausing here also, it is clear the evidence does not establish a grant "for occupation for life"; if anything it suggests that Ahiableame was asked to allow a building to be erected which would yield some profit to himself also as the land-owner. It was only when the first plaintiff was being cross-examined about this sense in which his evidence was understood, and when the first defendant asked him, "Then, after the buildings were made and Togbi Sri II collected their rents for over 40 years, what profit there out to Ahiableame?," that the first plaintiff was constrained to give his own interpretation of what Togbi Sri II is alleged to have said, as meaning a promise on the part of Togbi Sri II to occupy for life, the witness' answer being, "The profit meant by Togbi Sri II was that after his death the buildings would become the land-owner's properties." That which stands out quite clearly from the witness' own narrative as to how the first grant was made and how a second plot was appropriated, originally without consent which, however, was subsequently given, is that there never was any categorical statement on the part of either grantor or grantee that occupation was to be only for the life of the grantee.

Witnesses were next called to support the plaintiffs' case. The first of them who in the course of his evidence deposed that Ahiableame was his "senior uncle," confirmed the evidence of a first grant when nothing definite was said about any conditions on which the grant was made, and then proceeded to testify further as follows:

"Later, there were two other buildings erected on the land and of which I no more know anything. Later I met my senior uncle Ahiableame and enquired from him on which grounds he allowed other buildings to be on the land, and he told me that Togbi Sri II was building them only on the grant or lease first made to him, and he was told by Togbi Sri II that the buildings would pay for themselves?-meaning that the rents from the buildings would be enjoyed by both of them."

The defendant having taken note of the serious discrepancy, in due course during his cross-examination of the witness, asked him this question and received the answer hereunder:

?"Q. If plaintiffs said that the land was granted or leased to Togbi Sri II for life only and you now say Ahiableame told you that he would enjoy the rents from the buildings with Togbi, which of you is saying the correct thing?

A. I am saying what I heard from Ahiableame.?" [p.41]

It seems unnecessary to point out what a grave contradiction of the plaintiffs' case this evidence of their first witness undoubtedly was.

A second witness who in the course of his evidence disclosed that Ahiableame was his grandfather, then testified about spending a night with Togbi Sri II when returning from a journey, and how, when leaving the next morning, he was sent specially by Togbi Sri to invite the first and second plaintiffs to come and see him; that he invited and accompanied them to see him when he said to them that:

"he was then old and would therefore like to release the land borrowed to him and on which he erected buildings at Dzodze. By the release, he also said that he thereby meant to leave out one of his buildings on the land to Vidza and Doamekpor [first and second plaintiffs] and the remaining one to remain for himself, and that after his death the whole land would return to them."

This evidence however was in substantial conflict with, and completely discredited by, evidence given earlier by the first plaintiff explaining how he and the second plaintiff and the witness came to travel to interview Togbi Sri, and the discussion which then took place. The first plaintiff's evidence was this:

"After the death of my father, a third building was again erected on the land. The three buildings then occupied the greater part of our land and we Ahiableame's descendants had no more suitable site to build on. I later made up my mind to go to Togbi Sri II to raise objection to this and to ask him to release the land to us. When I went to him in company with Doamekpor and Dupe Adovor, Togbi Sri asked that I should give him a written authority on the grant of the land to him by my father. I told him that I came for his release of the land to me, and as my father gave him no written authority, I was not prepared to give him one too."

It is plain that the plaintiffs' case was not in any way advanced by the evidence of the second witness.

A third and last witness was called who disclosed that he was another relative of the plaintiffs, Ahiableame being his maternal grandfather, and testified that about 40 years ago as linguist to his uncle Chief Awute, one of the sub-chiefs of Dzodze, he accompanied him to visit Togbi Sri in Ahiableame's house and was present when Togbi Sri asked Ahiableame:

"to lend him his plot of land near the market to erect a shed on it so that he met people there instead of Ahiableame's house. Ahiableame agreed to let Togbi Sri II erect the shed on the land. When the shed was made I also assisted in bringing thatch to roof it. The shed was made into a complete building: ie., part as a room and part as shed under which Tribunal was held ... I later left to do farm work at Kpegagorme. It was on my return later that I found other buildings made or erected on the land."

Under cross-examination he was asked and answered as hereunder:

"Q. Was the site on which Togbi Sri II erected the building in which Sepenu lived gifted or lent to him?

A. It was lent to him.

Q. Was there any tolls or rent fixed to be paid by Togbi Sri II?

A. No, there was no rent fixed because it was intended as a trading place for them all.

Q. How much was paid to Ahiableame a month out of that?

A. There was no fixed amount. At the time Ahiableame also assisted Togbi Sri II in holding the tribunal there and any money got therefrom, Ahiableame was also given part; that is why I said it was a trading place for them all.?" [p.42]

This witness therefore was in conflict not only with the first witness who alleged that Abiableame gave him to understand that "the rents were to be enjoyed by both," but with the plaintiff?'s crucial allegation, going to the very root of the case, that the grant was "for occupation for life." It is plain therefore from the foregoing detailed examination of the evidence of the first plaintiff that the allegation of a grant for occupation for life was not proved, and that the evidence of the plaintiffs' own witnesses discredited it.

Turning then to the case of the defendants, it seems hardly necessary to do more than make the briefest possible examination of it. The first defendant's evidence was that the grant to Togbi Sri II was an outright gift, and that he (Togbi Sri II) invited all the chiefs and elders of Dzodze and gave thank-offerings consisting of two bottles of gin and cash, G5 8s., in their presence by way of acknowledging the gift in accordance with custom. The evidence is corroborated by one chief and two linguists of Dzodze, all of whom are in no way related to the late Togbi Sri or any of the defendants, and also by another total stranger, the third witness, George Wagba, whose assertion that he was the person employed by Togbi Sri II to erect the buildings on the land was unchallenged. Next, there is the very cogent, irrefutable evidence made available in the correspondence between Edward Sallah and Togbi Sri II concerning Sallah's claim to the land in dispute. Sallah, a relative of Ahiableame, who occupied land adjoining that which was occupied by Ahiableame near Dzodze market in which was included the plot in dispute, sometime in the early part of 1913 laid claim to Ahiableame's portion of land, whereupon Ahiableame sued him in the paramount chief's tribunal and recovered judgment declaring his (Ahiableame's) ownership of the land. It was after that judgment that a grant was made to Togbi Sri of the plot in dispute and he built on it. Nevertheless about June 1924, Sallah by letters claimed rent for Togbi Sri's occupation of the land in dispute and threatened legal proceedings in default of payment of the rent demanded, whereupon Togbi Sri replying to the last letter wrote, inter alia, as follows:

"I regret to remark that the letter is far from being intelligible. I cannot accept your suggestion as stated in the part of your letter as condition of offer made by you and accepted . . . I think I have no right to accept your offer on conditions stated. The land as you know was a gift to me by Hanua (Headman) Ahiableame and his people, apart from the small piece adjoining to it belonging to you which you yourself also have made a present of it to me. I can hardly understand your reasons of change."

If, therefore, the plaintiffs had instituted this action against Togbi Sri II in his lifetime, there is little doubt what his reply and defence would have been. Finally, the defendants' case was decisively affirmed by the plaintiffs' own admission that Togbi Sri II exercised all rights as ostensible owner over the property in dispute and collected all rents accruing from it for the long period of 40 years, without any challenge by them, the plaintiffs.

The trial court, faced with the task of deciding which case to accept, decided in favour of the plaintiffs, giving certain reasons, and it is therefore necessary now to examine briefly those reasons. [p.43]

The first reason advanced was that the land in dispute was family property and: "Ahiableame as a single member of the family had no right according to our native custom in this area to make a permanent gift of the said portion of land to Togbi Sri II." The answer to this argument is that it was not the plaintiffs' case that Ahiableame had no right by himself alone to grant the land; the case was that he had power to grant it but granted it for occupation for life only, and so the property was now recoverable. If the plaintiffs' case had been that family land had been wrongly granted by Ahiableame alone without the consent of others entitled to concur, the answer which would have been made to it is that the family should have taken steps timeously to claim back the land (see Manko v. Bonso, 11 adopting and confirming Quasie Bayaidee v. Quamina Mensah 12) and that by waiting for 40 years the family are now precluded from claiming the property.

Secondly, the native court advanced as reason for rejecting the defendants' case their satisfaction that "there have been lack of collaboration [corroboration] in their [Defendants' witnesses'] evidence which greatly contradicted each other on the material points at issue." The foundation for this charge against the witnesses of the defendants appears to be a mistake made by the third witness, George Wagba, as to the date when litigation took place between Ahiableame and Sallah, concerning land including that now in dispute, after which litigation, it is admitted, Ahiableame then granted the land to Togbi Sri II. The witness testified that the date of the litigation was July 1916, but subsequently the plaintiffs procured a certified copy of the proceedings and produced it to show that the correct date was July 1913, and thereby discredited the witness Wagba on that point. It seems to me, however, that the native court was making a mountain out of a mole-hill, as the saying goes, about this unimportant mistake about dates. The date was quite immaterial and irrelevant to the issues before the court, and, more unimportant, the witness' evidence was otherwise quite unchallenged. His mistake about the date therefore cannot afford any good reason for the court being "satisfied that there have been lack of collaboration in their evidences."

The trial court next found cause to disbelieve the defendants' case in the evidence which the fourth witness Amegbletor Dodor gave. The substance of that witness' evidence was that his family, claiming to be the first settlers of Dzodze, was all the time contesting the ownership of the whole area of land in which the land in dispute was included, with Ahiableame's family, and therefore when he got to know of the grant by Ahiableame to Togbi Sri, he maintained that he was the proper person to make the grant and therefore confirmed the grant to Togbi Sri. The trial court said, "We found no reason why Amegbletor Dodor should pose himself to be the grantor of the disputed land and the receiver of the presentations made by Togbi Sri II for the grant to him, while the defendant and his other witnesses claimed Ahiableame to be the grantor." But if, as the court stated, "they found no reason," it seems to me that is because, for reasons best known to themselves, they were determined to be blind, for the witness' evidence as to his attitude is quite understandable to any impartial enquirer into the matter. That the witness' [p.44] evidence is true, is confirmed by the unchallenged, and indeed admitted, evidence which he also gave that his family ultimately sued the family of which Ahiableame was a member for the ownership of the whole land, and that Togbi Sri II was actually subpoenaed and gave evidence in the Land Court of the Eastern Judicial Division at the instance of Ahiableame's family, and testified about the grant of the land in dispute by Ahiableame to him. In my opinion, therefore, far from this witness' evidence being a ground for disbelieving the defendants' case, it was one of the strongest confirmatory pieces of evidence before the trial court.

Two other reasons were given for disbelieving the defendants' case, (1) that in his will Togbi Sri II did not specifically state that he acquired the land by gift from Ahiableame, when in the same will he specifically mentioned the fact of acquisition by gift of another plot in clause 7 (a) of the will; (2) that as a literate paramount chief who was always attended by clerks when he visited Dzodze, if the grant had been an outright gift he would have taken a document to that effect on it. As to the first reason, it may be that he did not mention this gift because the property mentioned in clause 7 (a) of the will is stated to be bare land in respect of which his ownership or title may not be so well known, whereas in the case of the land in dispute and the houses thereon, his ownership thereof and the fact that he was regularly collecting the rents accruing therefrom, was notorious. There must undoubtedly have been reasons why he found it necessary to give the history of his acquisition of only the plot mentioned in clause 7 (a) of the will, and omitted to give the history in respect of all the other properties mentioned in the will, and it seems to me a poor reason to advance for coming to the conclusion that he knew that the property in dispute did not belong to him. The question obviously arises ?- what about all the other properties in the will, and why did he give them away as his own? Equally poor in my opinion is the reason advanced that because he did not take a document, it means the land was not granted as a gift to him. After all the late Togbi Sri II, a well-known public figure, was not all that literate (note for example the terms of his letter, supra) and was not all that divorced from the customary way of life of his people. In the result therefore I find that each and all the reasons or grounds advanced for disbelieving the defendants' case are hopelessly unsound, and that the trial court's reliance on them for their judgment against the defendants, constitutes the strongest condemnation of their judgment.

The resulting position is that the clearest possible proof is disclosed that the trial court's decision confirmed by the native appeal court is wrong, according to the test laid down in Abakah Nthah v. Anguah Bennieh, 13 and the appeal against the said judgment should have been allowed and the judgment set aside in whole.

That brings me to the counter-appeal by the plaintiffs in respect of the second and third houses and the plots on which they are situate. In respect of that appeal the short point which arises is whether the learned commissioner was right in making a differentiation in the terms and conditions under which the first plot was acquired and built on, as against the adjoining plots on which the second and third houses [p.45] were built. Earlier in this judgment is set out the evidence of the first plaintiff as to how he alleges the plots were occupied and built on by Togbi Sri at different times. Nevertheless, his case clearly was that although three adjoining plots were occupied and built on at three different times, the whole formed one plot obtained from the same owner subject to the same condition that it was to be occupied for life. That is what is clearly expressed in his writ in which the whole plot is described by its boundaries and return of it is claimed on the ground that, "the said land was granted to late Cornelius K . Kwawukume for occupation for life." The defendants denied this ground or reason alleged for the return of the one plot of land with the three houses thereon, and the issue which thereby arose for determination was whether the one whole plot described in the writ was granted conditionally or as an outright gift. The trial court dealt with that issue and held: ?-

?"We found no substance of truth in the defence that the disputed land was made as a permanent gift to Togbi Sri II, and we are satisfied with Plaintiff 's case."

The native appeal court dealt with the case on the same basis and confirmed the trial court. In these circumstances there is no ground or justification whatsoever for the learned commissioner differentiating between the acquisition and tenure of the plot on which the first-built house is situate, and the acquisition and tenure of the remainder of the whole plot on which the second and third houses are situate. In my view, having found that the first portion of the whole land on which the first house was built was acquired as an outright gift, it meant that he rejected the plaintiffs' case that any portion of the whole plot was acquired and occupied conditionally, and he should have allowed the appeal in respect of the one whole plot and the three houses thereon which the plaintiffs claimed as a single whole, but not separate them as he did. Learned counsel for the plaintiffs was obliged to concede this ?- and it follows that the appeal in respect of the second and third houses and the plots on which they are situate must be allowed, and the learned commissioner's decision in respect of that portion of the property in dispute set aside.

As indicated at the end of the judgment in the plaintiffs' appeal, the trial native court's judgment relating to the whole plot with the three houses thereon, confirmed by the native appeal court should have been and is hereby set aside, and judgment entered for the defendants, dismissing the plaintiffs' claim completely.

JUDGMENT OF KORSAH C.J.

I agree.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I also agree.

Decision

<P>Judgment entered for defendants.</P> <P>Judgment of trial native court set aside.</P>

Plaintiff / Appellant

Hayfron-Benjamin

Defendant / Respondent

Koi Larbi

Referals

(1)  France v. Quartey (1925) D.C. '21-'25, 194

(2)  G. B. Ollivant & Co., Ltd. v. Haroun Brothers (1934) 2 W.A.C.A.159

(3)  Nthah v. Bennieh (1930) 2 W.A.C.A. 1, P.C.

(4)  Agyare v. Kwakye (1943) 10 W.A.C.A. 1, P.C.

(5)  Ibrahimah v. Gariba (1954) 13 W.A.C.A. 174, P.C.

(6)  Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C.

(7)  Ninson v. Aduwah (1932) 2 W.A.C.A. 14, P.C.

(8)  Bansah v. Kwadjo (1944) 10 W.A.C.A. 132

(9)  Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399

(10) Manko v. Bonso (1936) 3 W.A.C.A. 62

(11) Bayaidee v. Mensah (1878) Sar.F.C.L. 150

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