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KWAKU v. AMPOFOWAA


  • appeal
  • 1961-05-29
  • SUPREME COURT
  • 1 GLR 277-281
  • Print

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


Summary

Customary law?-Land?-Declaration of title?-Burden of proof. Jurisdiction of Land Court?-Whether entitled to order that disputed property be divided between the parties in absence of claim for partition.

Headnotes

The plaintiff sued for declaration of title to certain land in the Offinso Local Court "B". The court found for the defendant and this decision was confirmed by the Asantehene's "A1" Court. The facts are sufficiently set out in the following extract from the judgment of the trial court:"The plaintiff's case is that he and late Kwame Dwomoh came to settle at Ayenesuso for farming work by the permission of the then Offinsohene and they jointly cultivated the farm in dispute and the defendant has unlawfully taken ownership and possession of it after the death of the late Kwame Dwomoh, being her husband, together with the compound house, on the allegation that they (the farm and the house) ... were self-acquired property of her late husband Kwame Dwomoh and were presented to her about two years before the death of Kwame Dwomoh. She (defendant) tendered in evidence two documents, one being a deed of gift and the other a proper will in support of her case ... .From the evidence on record the court is satisfied that the presentation of the farm and the house was in fact made to the defendant by late Kwame Dwomoh for over two years before he (late Dwomoh) died and that the members of the family knew of it."On appeal to the Land Court, although no fresh evidence was adduced, the court ordered that the property in dispute be divided between the parties.The defendant appealed to the Supreme Court on the grounds that:"(a) The learned Land Court Commissioner erred in reversing the concurrent findings of the two native courts on improper grounds.(b) There was no evidence upon which the learned commissioner could order division of the farms, a remedy not claimed by any of the parties to the suit.(c) The learned commissioner's judgment was against the weight of evidence."

Judgement

APPEAL from the judgment of the Commissioner of Assize and Civil Pleas (D.E. Gwira, Esq.) delivered in the Land Court, Kumasi, on the 26th April, 1960, (unreported) reversing the judgment of the Asantehene's "A1" Court given on the 24th March, 1959, which had confirmed the judgment of the Offinso Local Court "B" given for the defendant (appellant herein) on the 4th February, 1959, in an action by the plaintiff (respondent herein) for declaration of title to land.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgement of the court. In this case the plaintiff describing himself as "head of the family of the late Kwame Dwomoh" claims a declaration that the cocoa farm with a building situate at Ayenesuso on Offinso stool land is the property of the family of which he is the head, and of which the late Kwame Dwomoh alias Kwame Nantwi was a member. The claim is based on the allegation that over 30 years ago, the Odikro of Ayenesuso as agent of the Ohene of Offinso granted a portion of Offinso stool land situate at Ayenesuso to the late Kwame Dwomoh, who was the plaintiff's uncle and that the plaintiff and his uncle jointly cultivated the cocoa farm on the said land; also that the said Kwame Dwomoh alias Kwame Nantwi had at the time the sum of G600 which had come to him as successor of his immediate predecessor, and that he used part thereof in the improvement of the said cocoa farm. Also that he, the plaintiff, and his uncle built a house on the said land, both of which the said uncle, the late Kwame Dwomoh alias Kwame Nantwi had either devised or granted to his wife and children.

The defendant does not admit the plaintiff's claim, she further denies that the house and farm are the joint properties of the plaintiff and his uncle Kwame Dwomoh alias Kwame Nantwi, deceased. The defendant contends that both the house and cocoa farm were the self-acquired properties of Kwame Dwomoh deceased. She further counterclaims for a declaration of title to the said properties, G50 damages and injunction.

In the course of the plaintiff's evidence, he stated that as the result of a dispute between him and his uncle , the late Kwame Dwomoh alias Kwame Nantwi, during the latter's life time, he and his uncle agreed that the farm in dispute be shared between them and they asked Yaw Mensah, Kwame Poku and Kwaku Asiw to carry out that decision, but the sharing was not effected when the uncle died.

Of this Yaw Mensah said that about two years prior to giving evidence he and others were asked by the late Nantwi to share the farms cultivated by Nantwi and the plaintiff at Bosomasua, being the farm in dispute, and at Ahanta; they agreed but did not carry it out before Nantwi died.

This was supported by Kwame Poku. Thus there is some evidence that the alleged dispute was in respect of more than one farm including the one in dispute. The plaintiff in cross-examination, said "It is correct that apart from the farm in dispute, late Kwame Dwomoh had another farm at Ayenesuso which was left as an estate to the family. Yes the said farm is now in my possession.

The defence disclosed that the late Kwame Dwomoh alias Nantwi while at Ayenesuso bought fifteen more cocoa farms all of which have been left to the family of the plaintiff. This evidence has not been challenged by the plaintiff. The defendant further testified that the plaintiff stayed with his uncle Kwame Dwomoh "as his relative", as a younger member of a family stays with a senior who brings the former up in life, but did not take part in the making of the farm in dispute and also that the plaintiff had his own farm separately. Yaw Berkoe, owner of the farm adjoining the farm in dispute, who was called by the defendant, testified that to his [p.280] knowledge the farm in dispute was made by the late Nantwi and that it was not jointly owned by the plaintiff and the late Nantwi. This evidence is corroborated by another witness for defendant Osei Kofi, the Odikro of Ayenesuso who is also owner of a farm abutting the other part of the farm in dispute.

With regard to the house the defendant's witness Kwaku Asim testified that he lives at Ayenesuso and that he saw the late Kwame Dwomoh alias Nantwi building the house and that it cost 55. In cross-examination the plaintiff merely suggested that it cost 50 and not 55, but did not challenge the positive statement that to the knowledge of the witness the house was built by Nantwi.

After the plaintiff and defendant had closed their case, the court on its own motion called Kwame Nsiah alias Kwame Wusu, the nephew and present successor of the late Kwame Dwomoh alias Kwame Nantwi, who was witness to exhibit B, the deed of gift by which the farm and compound house were conveyed to the defendant. This witness denied that he knew the contents of the document at the time he made his mark to it, but said his uncle made him to understand that the document was in respect of a loan of 200 he would receive from one Kwaku Tawiah. This document was executed two years before Kwame Dwumoh alias Nantwi died.

The trial court held:

"From the evidence on record the court is satisfied that the presentation of the farm and the house was in fact made to the defendant by late Kwame Dwumoh for over two years before he (late Dwomoh) died and that the members of the family knew of it. The plaintiff and the other members of the family should therefore raise objection or protest when late Dwomoh was alive but not after his death. Also in bringing the case the plaintiff should have sued Kwame Nsiah who signed the deed of gift together with the defendant but he cannot sue the defendant alone and leave Kwame Nsiah behind. Judgment is therefore entered for the defendant with costs to be taxed."

The Asantehene's "A1" Court, in confirming the judgment of the trial court said, inter alia:

"We are of the opinion that the decision of the court of first instance was based upon findings of fact presented before them by the parties and their witnesses as such we see no justification to disturb such decision."

On further appeal to the Land Court, the learned Commissioner of Assize and Civil Pleas, in allowing the appeal said:

"In my view the respondent had acted rightly on her belief that the deed of gift and the will gave her the farm and the house. I therefore allow the appeal but I vary the judgment of the appelate court and substitute this judgment. I order that the farm and house be divided equally between appellant and respondent; with liberty to apply for directions should there be any difficulty in carrying out this judgment, such directions to form part of this judgment; no order as to costs."

It will be observed that no fresh evidence was adduced before the learned Commissioner of Assize and Civil Pleas, therefore it must be assumed that in reversing the decisions of the trial court and the Asantehene's "A1" Court, he misconceived his duty to adjudicate upon the claim when in the absence of a claim for partition he arbitrarily ordered that the property [p.281] in dispute be divided equally between the parties. This with due respect he was not entitled to do. In the Privy Council case of Omanhene Kobina Foli v. Chief Obeng Akesse1 it was held that an arbitrator "misconceived his duty under the reference, in respect that by his award he has laid down a new boundary line, based on consideration of what would be a fair division of the disputed area between the parties."

The trial court of first instance did not believe the plaintiff's evidence alleging that he and his uncle, the deceased, jointly owned the farm and house in question, they evidently considered the evidence of the plaintiff that he stayed with his uncle and may have assisted him in some domestic affairs, in the nature of services rendered by a young nephew to an uncle who is responsible for the upbringing of young members of his family. R. J. Ghartey v. No. 2 Company, Winneba.2

Although the plaintiff sued as head of his family and purported to claim the properties in question for the family, the evidence adduced in support of the claim sought to prove that he and his deceased uncle jointly owned the properties. Thus the circumstances upon which the plaintiff's claim is based are such as to require a clear case to be proved, apart from the general principle of law that in a claim for declaration of title the burden of proof is on the plaintiff. This burden the plaintiff failed to discharge either as head of his family or in his personal capacity on the alleged ground of joint-ownership of the said properties.

The judgment of the learned Commissioner of Assize and Civil Pleas clearly shows that even he was satisfied that the plaintiff was not entitled to judgment on his claim, hence the attempt to deliver a proverbial Solomon's judgment, by ordering "that the farm and house be divided equally between appellant and respondent", without any explanation for this conclusion.

In the result this appeal must be allowed, and the judgment of the court below set aside. The judgment of the native trial court, which was confirmed by the Asantehene's "A1" Court is restored on the ground that the plaintiff failed to discharge the burden of proof which lay upon him to satisfy the court that the said properties were owned by him and his uncle Kwame Dwomoh alias Kwame Nantwi deceased.

Decision

<P>Appeal allowed.</P> <P>Judgment of trial court restored.</P>

Plaintiff / Appellant

Victor Owusu

Defendant / Respondent

E. Akufo-Addo

Referals

(1) Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C.

(2) Ghartey v. No. 2 Company, Winneba (1924) P.C. '74-'28, 78.

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