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AUGUSTT v. ARYEE


  • New
  • 1961-10-18
  • HIGH COURT
  • GLR 584-589
  • Print

OLLENNU, J.


Summary

Practice?-Local courts?-Representation?-Duty of representative as regards giving evidence.Succession?-Succession among the Ga Adamgbe tribes of Ghana.Customary law?-Head of immediate family of deceased entitled to litigate over deceased's property in preference to head of wider family.Customary law?-Circumstances in which land granted to member of family can be taken back by the family. [p.585]

Headnotes

Frederick George Augustt, deceased, was a member of the Augustt family which is a branch of the Richter family of Osu. He built a house on a piece of land granted to him by the Richter family. He lived in that house till 1922 when he died. On his death a dispute arose between his children including the plaintiff herein, and his maternal cousin Easmon as to the proper person to succeed him and administer his estate. The suit determined in favour of Easmon. As a result of the litigation the children removed from the house. For some years thereafter the house remained uninhabited because it was believed that whoever lived there fell ill. The building began to fall into ruin. In 1945 the head of the Richter family granted the land, with the buildings thereon, to the defendant herein who is also a member of the Richter family. Part of the building was demolished in 1950 and the remainder demolished in 1951. In 1960 the defendant began to erect a new building on the land, in total disregard of warnings from the plaintiff. Whereupon the plaintiff in his capacity as head of the Augustt family sued him for a declaration of title to the land and for damages for trespass.At the trial the plaintiff was represented by one S. H. Hammond. The said Hammond gave evidence in the first person as if it was the plaintiff himself who was speaking. The local court gave judgment for the plaintiff. The defendant appealed to the High Court.

Judgement

APPEAL against a judgment of the local court in a suit by the immediate family of Frederick Augustt, deceased, for declaration of title to a piece of land granted to the defendant by the head of the wider family.

The respondent who was the plaintiff in the local court, sued in is capacity as head of the family of his father the late Frederick George Augustt, and claimed a declaration of title to the land in dispute and damages for trespass.

The late Frederick George Augustt was a member of the Osu Mon family, otherwise known as the Richter family. The present head of that family is L. L. Richter, P.W.3. The Augustt family is therefore a branch of the Richter family.

The facts briefly stated are as follows: the land in dispute was granted by the Richter family many years ago to the late Frederick George Augustt. Augustt built a storey house on it and lived there up to 1922 when he died. Upon his death a dispute arose between his maternal cousin, one Easmon, and his, the deceased's children represented by the respondent and a brother of his, as to who was entitled to succeed him and to administer his estate. Judgment was given in favour of Easmon in that administration suit. As a result of that suit the plaintiff and the other children of his father left the house. The buildings so erected by Frederick George Augustt remained in existence until 1950 when part of it was demolished, the portion which remained was demolished in 1951; but for some years before then, the house was not inhabited, because of some superstitious reasons; it was said that anyone who lived there fell ill.

In 1945 while the buildings were still in existence on the land, the then head of the Richter family granted the land to the appellant who was the defendant in the local court. The appellant commenced building operations on it in 1960; he continued his operations in spite of warning from the respondent's solicitors, whereupon the respondent instituted the action against him.

At the trial in the local court, one S. H. Hammond who had been permitted by the local court to represent the plaintiff, gave evidence in the first person as if it was the plaintiff himself who was speaking. In this he was resuscitating a practice which used to obtain in the old native tribunals [p.587] and native courts but which had to stop because of the strong condemnation it received in the Divisional Court, the West African Court of Appeal and its successor the Court of Appeal. It must again be condemned now that it is trying to rear its head again. That evidence is hearsay evidence, the facts the witness deposed to are not of his own knowledge, but something which the plaintiff or some other person must have told him; therefore if the evidence he gave amounted to perjury he could not be dealt with for contempt of court, because he was not swearing to it from his own knowledge. His evidence is therefore inadmissible and must be completely ruled out of consideration in this appeal as if that evidence had not been given. Therefore if the admissible evidence left on the record failed to reach the standard required for a plaintiff to discharge the onus which rests upon him, the appeal should succeed. But fortunately enough there is sufficient admissible evidence on record which proved his case.

It was contended on behalf of the appellant that the respondent is not the proper person to sue, because in the administrative suit of 1925, Michelin, J. had ruled that Easmon, the nearest surviving uterine relation of the respondent's father was the proper person to succeed the late Frederick George Augustt, and not the respondent and his brother. This submission is erroneous on two grounds; firstly Easmon died some time ago, and the evidence that the respondent is the present head of his late father's family was not refuted; secondly Michelin, J. based his said judgment upon views expressed by Mr. Edmund Bannerman as to the custom of succession in Accra (Ga Mashie), as given at pages 109-112 of Sarbah's Fanti Customary Laws, (2nd. ed.) and custom as set out in the judgment of Smyly, C.J., in the case of Sackey v. Okantah1 in an Accra (Ga Mashie) case. He stated that he had to do so because no evidence was led as to such custom of succession. The position has been clarified since then, and it is clear now that apart from Accra town (Ga Mashie), the whole of the Ga Adamgbe tribes of which Osu is one, are patrilineal family societies for purposes of succession. The plaintiff can therefore be the present successor and head of his said father's family.

Next it was submitted that the head of the main family, ie. the Richter family, is the proper person to litigate over the late Frederick's property, he, Frederick having died intestate, and the property having thereby become family property. This submission is misconceived. The law is that as between the successor to a deceased, who is head of the immediate family of the deceased, and the head of the main family of which the immediate family of the deceased is a branch, the proper person to take charge and control of, and to litigate over the property of the deceased is the successor, the head of the immediate family, and not the head of the main or principal family: see Acquaye v. Deedei Anor.2 and Kwakye etc. v. Tuba Ors.3 [p.588]

Next it was submitted on behalf of the appellant that it is a custom in the Richter family that if land is granted to a member of family and he fails to take any interest in it, the family has the right to grant that land to anyone else; consequently it was submitted that the grant made by the family of the land in dispute to the appellant, another member of the family, is valid and superseded the title of the family of Frederick to whom the land was originally granted. But this submission is not supported by the evidence, and it is certainly not supported by Mr. L. L. Richter, P.W.3, the present head of the whole Richter family. There was evidence that land was granted to the late Rev. Richter many years ago, but he had never built on it when he died, and since his death, many years ago, his children have not built on it either to this day; that about ten years ago long after the death of the Rev. Richter, the family purported to grant the said land to P.W.1 who is also a member of the family; but when the children of the late Richter heard of it, they objected to the conduct of the family in regranting that land to another person without first consulting them, whereupon the family admitted they had acted wrongly and the land was restored to the Rev. Richter's immediate family; up to the date hereof they have not built on that land. The evidence given by the various witnesses on this point is summarised in the evidence of the Osu Mantse where he said; "It is not correct for the head of the family to re-enter into any piece of land granted by the family without the knowledge of the grantee".

It was further submitted for the appellant that in any event Augustt's immediate family must be deemed to have abandoned the land, and therefore in law the land reverted to the wider family, i.e. the Richter family. This submission seems to be based on the judgment in Ohimen v. Adjei4 But has the Augustt family been shown to have abandoned the land?

The principle governing abandonment is that land is not necessarily abandoned by reason only of the fact that it is not being used at any particular time. Abandonment consists not so much in allowing land to lie waste as in non-exercise or non-active assertion of a right to immediate control: see the Shai Hills Acquisition Case5.

In this case the buildings of Augustt were still standing on the land in 1945 when the family purported to grant it to the appellant. It cannot therefore be said that the Augustt family had abandoned the land. In any event the family cannot regrant the land in circumstances like these where the land was granted for building purposes, without prior notice given to the grantee of the intention to re-take possession, even if he failed to build on it: see Komey v. Korkor6.

Again there is no evidence that the grant was a mere licence given to Augustt to build on the land, in which case if the house goes to ruin the licence should become determined. That cannot be the case here because [p.589] such licence is granted only to a stranger not to a member of the family or a subject in the case of stool land.

Finally it was submitted by counsel for the appellant that since the notices for demolition given by Accra Municipal Council in 1950 and 1951 were served on the head of the wider family, the Richter family, and since letters written in connection with those demolition notices were written by the head of the said wider family, the branch family, ie. the Augustt family, must be deemed to have held out the Richter family as the owners of the said land, and therefore the Augustt family are estopped by their conduct from now asserting their title to the land. But there is not a tittle of evidence which shows that it was the Augustt family who caused the municipal council to direct the notices to the head of the Richter family, or that the letters which the head of the family wrote to the municipal council were written upon request made to him by the Augustt family.

Since nothing has been shown which can impeach the judgment of the local court, the appeal must fail. The appeal is dismissed with costs fixed at 18 guineas inclusive.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

E.C. Tanoh

Defendant / Respondent

Twum-Barima

Referals

(1) Sackey v. Okantah (1916) D. & F. 11-16, 88

(2) Acquaye v. Deedei & Anor. (1958) 3 W.A.L.R. 132

(3) Kwakye v. Tuba & Ors. [1961] G.L.R. 535

(4) Ohimen v. Adjei (1957) 2 W.A.L.R. 275

(5) Shai Hills Acquisition Case Land Court, Accra, June 3, 1957, unreported.

(6) Komey v. Korkor (1958) 3 W.A.L.R. 331

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