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  • appeal
  • 1962-01-10
  • 1 GLR 4-7
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Customary law?-Gift of land is irrevocable.Local courts?-Practice?-Court should uphold claim for title even if evidence proves root other than the one pleaded.


In an action for a declaration of title to land the plaintiff pleaded that the land was given to him by the Odikro of Manfo. The defendant denied this, and pleaded that he rather gave the land to the plaintiff, and that as plaintiff has been ungrateful and denied that allegation he had revoked the gift and taken back his land. The plaintiff had cultivated the land for at least six years. The Kumasi West Local Court, Teppa, which tried the case in the first instance, gave judgment for the defendant. The plaintiff appealed.


APPEAL from a judgment of the Kumasi West Local Court, Teppa, in a land case.

This is an appeal from the judgment of the local court magistrate of the Kumasi West Local Court sitting at Teppa who gave judgment for the defendant thereby dismissing the plaintiff's claim for ownership, title and occupation of a cocoa farm described in the writ of summons. The case went to the High Court on appeal and was sent back to the local court for re-trial.

At this point it may be convenient to consider two points of law raised. One was that the defendant is estopped from denying the plaintiff's title to the land because in a previous litigation between the plaintiff and another man in which judgment went for the plaintiff, the defendant gave evidence for the then loser. Another point raised was that this case had been adjudicated upon before between the parties and that the plaintiff cannot now reopen it. I regret that I am unable to uphold either of these submissions. The most important requirement for either of these submissions to succeed has not been satisfied, namely, that the land subject matter of the previous law suits referred to is the same as the subject-matter in this one. The evidence on record is singularly inadequate for any court to come to the conclusion that these law suits were in respect of the same land. To some extent I am reinforced in this view for the reason that this case has been on appeal to the High Court and back. It is surprising that it is now being said that the law suit that went to the West African Court of Appeal and the one between Yaw Badu and the plaintiff herein concerned the same piece of land that is being disputed in this case. These farms may be situate at Pobriso or Akrasuano, but they have not been sufficiently described for one to apply the doctrine of res judicata or of estoppel.

Now to the merits of this appeal. The case put up by the plaintiff is that this piece of land was given to him by the then Manfo Odikro some fifteen or sixteen years ago when he gave the Odikro about G600 during the latter's litigation with the Akwaboahene in which the Odikro, with this assistance, came out successful. The plaintiff said the Odikro made the defendant and Yaw Fosu go and allocate the forest land to him and that he started cultivating same and had made a cocoa farm on the land. He described his boundary. [p.6]

The defendant's case is that the plaintiff had been given some land but that it was he the defendant who gave him that land and not the chief. It appears also that after recovering the farm which Okyere cultivated and which the plaintiff had then taken, in an action against the plaintiff, the defendant took not only what Okyere had trespassed over but the plaintiff's own farm which the defendant had originally gifted to him. From the judgment it appears that the defendant took this course because the plaintiff denied that it was he, the defendant, who gave the plaintiff the land.

Much evidence was adduced in support of either case and the local court visited the locus. It found that Pobriso and Akrasuano refer to the same land. The local court furthermore found "that there is no difference between the first action taken by the defendant against the plaintiff which ended in the West African Court of Appeal in favour of the defendant in the present action and the present case before this local court". I am unable to find the evidence on record which led the local court to that conclusion. The writs in the previous cases and the judgments and pieces of evidence tendered do not in my view support the contention that this land is the same as that litigated over up to the West African Court of Appeal. If the local court supplied the evidence for this from its visit to the locus in this case then it is wrong in so doing. There is evidence, which has been believed, which justifies the local court's finding that the land was not gifted to the plaintiff by the Odikro of Manfo but rather by the defendant himself. From this finding the local court drew two inferences upon which it based its judgment. The first is that "defendant admitted that the plaintiff possesses a farm in the disputed area but in view of the fact that he denied that the defendant had given him the land but the Odikro of Manfo, he had taken back the land." This is clearly wrong, for by native custom a gift is irrevocable. The plaintiff has cultivated this land for at least six years (he says fifteen or sixteen years) without let or hindrance. A gift of land made inter vivos is irrevocable once it is completed and the donee is placed in possession.

Next the local magistrate assumed that because he disbelieved the plaintiff's story that the land was gifted to him by the Odikro even though the defendant admitted that he gave the land to the plaintiff, the plaintiff should still fail in his action since he had not proved the claim he put up. In a similar case Boakye v. Broni and Domfe1 Ollennu, J. held as follows:

?"In my opinion, where a plaintiff claims title to land and pleads a particular root of title to support that claim, and the evidence proves that title is vested in him but that it was acquired through another root, the trial court is not entitled to dismiss the claim upon that finding, for to do so would lead to a miscarriage of justice, in that the plaintiff would, in the circumstances, be deprived of property which, upon the evidence, was undisputedly vested in him. In such a case it is the duty of the court to do justice between the parties and uphold the plaintiff?'s title, even though upon grounds different from those he pleaded.?"

The local magistrate based his decision on three grounds. Firstly, that though the defendant admits that he had gifted the land to the plaintiff, because the plaintiff based his claim on the gift to him by the Odikro he must fail; secondly, that although the defendant gifted the land to the plaintiff he can take it back because the plaintiff has been ungrateful; thirdly, on the ground of res judicata. In my opinion none of these grounds can be upheld. When he went to the locus in quo it must be assumed that the magistrate went to see the identity of the land claimed by the plaintiff. [p.7]

He found that Pobriso was the same land as Akrasuano. There was not to my mind sufficient evidence about the previous cases to entitle him to conclude that the subject-matter of that litigation was the same as this one. A valid gift once made is irrevocable, and it did not matter whether the gift was made by the Odikro as the plaintiff claimed, or by the defendant as the defendant admitted.

In the result I would allow the appeal, set aside the judgment of the local court including any order as to costs, and give judgment for the plaintiff on his claim.

The plaintiff will have the costs of this hearing assessed at 35 guineas; costs in the abortive trial in the local court and of the judgment appealed from to be taxed. Court below to carry out.


<P>Appeal allowed.</P>

Plaintiff / Appellant

Y. B. Amoatin for N. Y. B. Adade

Defendant / Respondent

Owusu Yaw for A. A. Akainyah


Boakye v. Broni and Domfe (1958) 3 W.A.L.R. 475

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