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AFRIYIE v. DOTWAAH AND ANOTHER


  • New
  • 1962-06-11
  • HIGH COURT
  • 1 GLR 458-463
  • Print

APALOO J.


Summary

Family Property?-Land?-Whether defendant in possession as caretaker or as successor.Land law?-Defendant in adverse possession?-Whether liable to account.Practice?-Whether plaintiff entitled to a relief not claimed?-Defeating justice by technicality.

Headnotes

The cocoa farm in dispute was the self-acquired property of Kwaku Addo who died in or about 1947. The first defendant lived with Addo, who paid debts incurred by the first defendant. On Addo's death, the first defendant took possession of the farm. He contends that he was in possession as the customary successor of Addo. In August 1960, the first defendant mortgaged the farm to the second defendant to secure the repayment of a loan of G325. On the strength of this mortgage, the second defendant took possession of the farm. The plaintiff, a sister to Addo, instituted these proceedings for a declaration that the farm is the property of the immediate family of Addo and that the mortgage to the second defendant is null and void, it having been done without the consent and concurrence of the members of the immediate family of Addo. She contended that the first defendant is not related to Addo at all, but that he took possession of the farm as caretaker for one Madam Pramang who immediately succeeded Addo, and that he rendered accounts to Pramang until she died in 1954. The plaintiff alleged that she has succeeded Pramang and that she is entitled to possession of the farm. The plaintiff claimed accounts from the second defendant only, as the person in possession at the date of the writ of summons.

Judgement

ACTION for declaration of title, recovery of possession and accounts.

In this action, the plaintiff claims against the defendants a declaration of the title of her family to a cocoa farm said to be situated at a place called Patwire on Amoako stool land, and other incidental reliefs which for present purposes it is unnecessary to set out.

It is common ground that the farm in dispute was the self-acquired property of a man by name Kwaku Addo. The latter died intestate in or about 1947, and by the well-known canons of customary law, the farm became family property. The evidence shows that the defendant has for many years been in possession or had some form of control over the farm. The capacity in which he did this is the subject-matter of fierce controversy. I find it established that on the 10th August, 1960, the first defendant conveyed this farm to the second defendant by way of legal mortgage to secure the repayment of the sum of G325 advanced to the former by the latter. The plaintiff seems to have got wind of the negotiations for the loan and the offer of this farm by way of security. She got into touch with the Amoakohene and informed him of this. The latter sent for the second defendant and warned him about the plaintiff's claim. This meeting must have taken place in August, 1960, but as to the actual date, the evidence is far from precise. This verbal warning was followed by a formal solicitors' letter dated the 6th September, 1960, and written by the plaintiff's solicitors to the second defendant and copied to the first defendant and other members of his family (exhibit A). As is only to be expected, the second defendant did not himself reply to the plaintiff's solicitors' letter. He handed it to the first defendant. The latter replied it in October. The writ followed in November, 1960.

As the original ownership of the farm in dispute was agreed to be in the late Kwaku Addo who, as I said, died intestate, the persons entitled to the beneficial enjoyment of this farm today are the members of his immediate family. The plaintiff says she and her family are such members. If they are, there can be no doubt that they are entitled to complain and are within their rights to avoid the mortgage. The first defendant [p.460] says the plaintiff and her family are no blood relations of the late Kwaku Addo and are not entitled to complain. He says he and his family are such relations and what is done with Addo's properties is not the plaintiff's affair.

Naturally enough, each party led evidence to show his or her relationship with Addo on grounds of consanguinity. Accordingly, I have been treated in this case to a rather uninteresting and almost boring account of each party's pedigree. As is usual, it is wholly traditional and suffers from the perennial infirmity of traditional evidence with its concomitant liability to distortion. On the purely genealogical aspect of this case, there is the evidence of the plaintiff supported substantially by the present Amoakohene Nana Osei-Du, and the first defendant's evidence is also corroborated by Akua Pokua. I preserve a recollection of the impression these various witnesses made on me, but I do not think it would be right to conclude this issue on the uncertain and somewhat fallible guide of demeanour alone. What I tried to do is to test the rival family trees with proved or admitted facts in this case to see which is more likely to be correct.

In this wise, it seems to me crucial to decide who succeeded Addo on his death. It seems to me plain that such a person would be a close blood relation of his. Again this is one of the hotly contested issues of this case. The plaintiff and her witnesses say Addo was succeeded by his sister Pramang. The first defendant says he succeeded to the late Addo and he was also supported by witnesses called by him. In so far as it is necessary to credit one rather than the other set of witnesses, I clearly prefer the evidence of the witnesses called by the plaintiff. Nana Osei-Du is an elderly and respectable witness who for a time, reigned contemporaneously with Pramang, the latter being, until her death, the occupant of the female stool of Amoako. Nana Osei-Du is certain Pramang succeeded Addo. There is also the evidence of Kwadwo Wusu the present Nifahene of the Amoako stool and who is the head of the Agona clan of Tetrem. He said he lived in the same house as Addo and Pramang and was present when the late Pramang was elected by the family to succeed his brother. This is also very convincingly supported by Kwabena Agyare who is also the head of the Agona clan of Boaman. All these witnesses struck me as truthful and reliable.

The first defendant on his part is supported by Yao Donkor who was at one time the Gyasehene of the Amoako stool and Kwame Tash a former linguist of the said stool. They both said they were present when the first defendant was elected as Addo's successor. They have both been dismissed from their constitutional positions by the Amoakohene and struck me as embittered individuals. Mr. Effah has described them as fallen angels. I do not know that I disagree with that description of them. If indeed they were angels, they really have fallen, abandoned their angelic virtues and have since parted company with the truth. I form the very definite view that they were untruthful witnesses. I form the same view of Akua Pokua. She was a most hesitant and unreliable witness.

Quite apart from the evidence of the eye-witnesses, it seems to me rather improbable that on Addo's death, the family would, for any reason, wish to pass on the beneficial enjoyment of his properties to anyone save Pramang who is admitted to be his sister of the full blood. Pramang was herself a respected woman and was thought responsible [p.461] enough to be placed on the Amoako female stool and I cannot on the evidence conceive of any reason why her strong claims to the inheritance of her brother would be passed over in favour of the first defendant. It seems to me still more improbable that Addo's family would wish to appoint as his successor a man who came to live with Addo on the fortuitous circumstance that Addo paid his debts. Mr. Wiredu has in an absolutely powerful and able speech urged me to accept the contrary of what I believe to be true and among other things, points out that Pramang was blind and the improbability of the family appointing a blind person to administer property she cannot see. It was also said that the first defendant has been and still is in possession of Addo's gun and bangles and even his house and cannot be a caretaker of these. Counsel also point out that there is no evidence that the first defendant ever rendered accounts to Pramang and he certainly rendered none to the plaintiff.

In my opinion, none of the matters pointed out by counsel for the defendants either singly or collectively are destructive of the plaintiff's case that Pramang succeeded to her brother Addo. I cannot accept the contention that Pramang's unfortunate loss of sight disabled her from succeeding to her brother. It certainly did not incapacitate her from ascending to the stool. There are probably many successors who manage their estates by tenants and caretakers. Indeed, I accept the evidence that the first defendant was her caretaker. He was clearly the obvious choice for this post since he lived with Addo and knew all his farms. There is evidence by the plaintiff supported by Nana Osei-Du that the first defendant rendered accounts to Pramang and I am content to accept that. Had it been otherwise, the first defendant would have been kicked off long before Pramang's death. With regard to the possession of Addo's gun, that is just the thing among Addo's belongings that would least interest an admittedly blind woman. If the first defendant's claim that he is in possession of bangles or indeed any other trinkets belonging to Addo is true, I am satisfied he kept them surreptitiously from Pramang and obviously took advantage of her blindness. I do not believe that any member of Addo's family handed any of these things to the first defendant.

I can give no credence to the first defendant's oft-reiterated claim that he paid single-handed Addo's funeral debt and the funeral debts of many others in the family. In my judgment, that is just the kind of thing that the first defendant cannot do. He is the very reverse of affluent, and as he himself admits, is over head and ears in debt. Indeed, he came to live at Amoako with Addo because his family at Boaman could not pay his debts. The view I form of him is that he and money are ill bed fellows and I am wholly unpersuaded that he ever had any to lavish on funerals. I really find no escape from it and must find on the evidence in the case that Addo was succeeded on his death by his sister Pramang. I find it proved that the plaintiff succeeded Pramang not only as the queen-mother of Amoako but also as her personal successor and is entitled thereby to inherit not only Pramang's own self-acquired properties but those inherited by her from her brother Addo. That is sufficient to conclude this case in favour of the plaintiff.

The first defendant said he and the plaintiff are members of the Agona clan but are not related by blood. Accordingly, he said the plaintiff cannot succeed to him on his death nor can he succeed the plaintiff. [p.462]

Yet it is proved in this case that the Plaintiff succeeded to Pramang who is admitted to be the sister of the full blood of Addo. It follows, a fortiori, that the plaintiff was close enough to Addo on grounds of consanguinity to succeed him. There was some conflict between the plaintiff and Nana Osei-Du as to what Brago really was in the plaintiff 's family. The plaintiff said Brago was the mother of Yaa Dua, Wirekua and Fosua while the Amoakohene said Brago was the sister of Yaa Dua and Wirekua. I think Nana Osei-Du is more likely to be correct. He is much older than the plaintiff and reigned at one time contemporaneously with Pramang. He said Pramang told him the genealogy. Both the plaintiff and the Amoakohene are agreed that Brago begat Fosua who in turn begat the plaintiff's mother Afua Akyea. It is not in dispute that Brago, Afua Akyea and in her turn the plaintiff all occupied the female stool of Amoako. The only other persons who were also admitted to have occupied that stool are Yaa Dua, Ekua Tia and Pramang. This stool seems to have been a close family shop and kept to Yaa Dua and her sister Brago and their lineal descendants. Addo and Pramang were the plaintiff's grand-uncle and grand-aunt respectively and that explains why on the failure of issue of both Addo and Pramang, the plaintiff succeeded the latter. On the best consideration that I can give to the matter, I cannot escape the conclusion that the plaintiff and her family are the late Addo's near relations or to put it in familiar phraseology, members of his immediate family.

I think the first defendant must be related somewhat to Addo to make him offer to pay his debts and provide a home for him. But this seems to me as nebulous as the relationship between Addo and Oteng and Berchie. On this, I am satisfied of nothing beyond the fact that they belong to the same clan and are also probably distantly related. I am not unmindful of the fact that Berchie and Oteng took charge of Addo's funeral, but Addo's nearest surviving relations including his sister Pramang were all women and are not likely to play a prominent part in funeral affairs. Berchie and Pramang at the time occupied the male and female stools respectively and belonged to the Agona clan. It is not unreasonable that Berchie should undertake the performance of his queen-mother's brother's funeral and it is equally not improbable that he would have commissioned his elder brother Oteng to be at the helm of affairs, and he himself playing second fiddle to him.

The first defendant also tendered in evidence some parts of the proceedings in an action between Agyare and the first defendant and counsel stresses the fact that in Agyare's pleadings he admitted then that the first defendant succeeded to Addo and that the first defendant was the head of his family. I do not see that that is necessarily destructive of the plaintiff 's case. I certainly prefer to rely on what has been sworn and tested on oath to that which is merely embodied in pleadings. Experience shows that there are at times considerable divergences between pleadings and sworn testimony. Accordingly as I have said, I am compelled to reach the conclusion in this case that the plaintiff and her family are members of the immediate family of the late Kwaku Addo. [p.463]

I am satisfied that the first defendant who was merely a caretaker of the farm in dispute, granted a mortgage of it to the second defendant. The mortgage was granted without the consent of the plaintiff and her family and indeed in the face of opposition by the plaintiff. Accordingly, I hold on the authority of Kwan v. Nyieni Another1 that that mortgage is void as against the plaintiff's family. The second defendant has, as he himself admits, entered into possession of the said farm on the strength of that mortgage. He will have to give up possession to the plaintiff. The plaintiff also claims against him accounts of the proceeds realised by him on the same farm from the date of his entry into possession till the date of judgment. In my opinion, there is no legal basis for this claim against him. The second defendant is a trespasser vis-a-vis the plaintiff's family and the plaintiff is entitled to damages against him for trespass and for mesne profits. No such claim has been made.

But in my opinion, the plaintiff as successor of Pramang is entitled to an order for accounts as against the first defendant who has been proved to be Pramang's caretaker of this farm. The fact that he put it out of his power to so account by granting a mortgage of the farm and relinquishing possession to the second defendant ought not to be allowed to prejudice the plaintiff's rights in this respect. In my opinion, it would be wrong to allow the first defendant to evade his liability to account by his own wrong. I have given consideration to the question whether it would be right to make an order for accounts in favour of the plaintiff as against the first defendant in as much as the plaintiff sought for accounts only against the second defendant. I have come to the conclusion that to refuse to make the order only on the ground that the plaintiff misappreciated her right as to who was legally accountable to her would suffer justice to be defeated by a mere technicality. That in my judgment, cannot be right. I propose, therefore, to make an order for accounts in favour of the plaintiff against the first defendant. The evidence is that Pramang died eight years ago, that is in 1954. The first defendant will account to the plaintiff from 1955 to date.

In the result, I make the declarations sought in paragraphs (a) and (b) of the writ. I make in favour of the plaintiff as against the second defendant an order for recovery of possession of the farm in dispute. I order that the first defendant do account to the plaintiff on or before the 30th September next, the proceeds realised or which would reasonably have been realised by him from the farm in dispute from January, 1955, to the date of this judgment. The first defendant shall pay to the plaintiff the sums found due to her upon the taking of such account save and except such sums as were expended by the first defendant in making sandcrete blocks or otherwise on the late Addo's house. Liberty is hereby reserved to the plaintiff to surcharge and falsify such accounts.

Both defendants will pay jointly and severally the costs of this action. I assess counsel's costs at 80 guineas; other costs to be taxed.

Decision

<P>Judgment for plaintiff. </P> <P>Order for accounts against first defendant.</P>

Plaintiff / Appellant

T. A. Totoe

Defendant / Respondent

E. K. Wiredu

Referals

Kwan v. Nyieni [1959] G.L.R. 6
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