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SEMUA v. FORIWAA


  • appeal
  • 1960-12-23
  • SUPREME COURT
  • GLR 256-259
  • Print

KORSAH, C.J., GRANVILLE SHARP AND AKIWUMI, JJ.S.C.


Summary

Land?-Gift?-Customary acceptance by donee?-Observance of custom where gift for a limited period only.

Headnotes

The plaintiff brought an action in the Kumasi West District "B" Court in which she sought a declaration of title to a cocoa farm; damages and an injunction. Her case was that her grandmother, who had been in possession for thirty years before her death, had made the farm. The defendant on the other hand claimed that the farm had been made by her granduncle, a slave or domestic of the plaintiff's family and that on his death, his successor had made a gift of it for life to the plaintiff's grandmother. The trial court found in favour of the plaintiff, one of the grounds for the decision being the failure of the defendant to prove customary acceptance of the gift by the plaintiff's predecessor. The native appeal court reversed the judgment of the trial court. On appeal to the Land Court the judgment of the trial court was restored. The defendant appealed to the Supreme Court. [p.257]At the hearing of the appeal it was submitted on behalf of the defendant that as her granduncle was a slave of the plaintiff's family and the gift or licence to occupy the land was for a limited period only, a customary acceptance of the gift by the offer of "drinks" was not essential.

Judgement

APPEAL against a decision of the Land Court on November 28, 1959, allowing an appeal from the Asantehene's "A2" Court which had reversed the judgment given by the Kumasi West District "B" Court on February 25, 1959, in favour of the plaintiff in an action for declaration of title, damages for trespass and an injunction.

JUDGMENT OF KORSAH C.J.

Korsah, C.J. delivered the judgment of the court: This is an appeal from the judgment of the Land Court of the Ashanti Judicial Division in exercise of its appellate jurisdiction, allowing an appeal from the judgment of the Asantehene's "A2" Court which had reversed the judgment of the Kumasi West District Court "B" the native court of first instance which originally tried the case.

The plaintiff who is respondent in this court claimed as successor to her late grandmother, Abena Bruwah, declaration of title to cocoa farm described in the writ; 100 damages and perpetual injunction. In support of this claim she adduced evidence proving that her ancestor made the farm, and had been in possession of it for over thirty years, plucking the cocoa, and enjoying the proceeds of the farm without accounting to the defendant or any one, except paying tribute of 8 per annum to the Oyokohene, the landlord, on whose land the cocoa farm is situated; and who by custom is entitled to a tribute of 8 per annum from all tenants farming on the land.

The defendant's case is, the said farm was originally made by her late granduncle, Kojo Fordjuor, who was a slave and thereby a domestic member of plaintiff's family; that on Kojo Fordjuor's death, he was succeeded by one Yaw Bio, who voluntarily granted the said cocoa farm to Abena Bruwah, the plaintiff's grandmother for life. When the alleged grant was challenged and defendant was required to adduce evidence as to the native customary practice of acceptance, the defendant said that by agreement none was performed.

The native trial court after carefully reviewing the evidence, gave judgment for the plaintiff in which they commented on the total lack of evidence of the customary acceptance by the donee or the production by [p.258] the donee of "drinks" in accordance with custom. They attached importance to what they regarded as essential native custom if such a grant had been made, and in my view, rightly held that the attempt by the defendant to rebut the very strong evidence of plaintiff's ownership must fail, since the defendant is unable to adduce evidence of acceptance of the gift to, or permission for, plaintiff to take possession and enjoy the fruits and benefits of the farm. Apart from the failure of the defendants to prove this allegation of a grant there is on record ample evidence proving that the cocoa farm was cultivated by Abena Bruwah with the assistance of members of her family.

On appeal the Asantehene's "A2" Court improperly reversed the judgment of the native trial court, on the ground that in their view offer of "drinks" was unnecessary.

The Land Court in turn reversed the judgment of the Asantehene?'s "A2" Court and restored the judgment of the native trial court. In so doing Mr. Gwira, Commissioner of Assize and Civil Pleas, referred to Exhibit "A", a letter written by defendant to plaintiff in consequence of which plaintiff instituted the action. Defendant in that letter, described Abena Bruwah as her grandmother and said that the said Abena Bruwah took possession of the cocoa farm "as result of my young age at the time of my said uncle's death; I am here to inform you that now that my said grandmother Abena Bruwah has died, I have taken possession of my said late uncle's farm."

It will be observed that there is no mention of the allegation that the cocoa farm was given to Abena Bruwah by Yaw Bio, "to support or eke out her living because of her old age," the story which the defendant put forward to the native trial court.

In this court, counsel for defendant-appellant contended that in the special circumstances, the defendant's granduncle being a domestic of plaintiff's family, and the gift or permission to occupy and enjoy the proceeds absolutely being for a limited periody namely for life, offer of "drink" was not essential. This is a view of the customary practice which I am unable to accept. In the first instance it is common knowledge that people of this country, and particularly Ashantis and indeed all Akans would never meet to share or distribute the estate of a deceased person without offering "drink" both to their departed ancestors and those assembled. Secondly, even a person appointed a successor to an estate to which he is entitled, usually offers "drinks" to the family present at his appointment. Thirdly, if the successor makes a grant of any portion of the estate to any member that member must formally accept the gift, no matter the duration of time.

It is obvious from the evidence adduced by the parties that they joined issue solely on the question whether the plaintiff's predecessor had been in possession of the farm for over a period of 30 years, and if so, whether it was by leave and licence of the defendant's predecessor originating from a gift for life to Abena Bruwah.

Since the alleged gift is not proved by any written document, the native court had to consider what evidence is by custom essential to support such an allegation. [p.259]

It is not disputed that according to native customary law as embodied in numerous decisions in the courts of this country, the giving and acceptance must be proved by evidence of such delivery or conveyance as the nature of the gifts admits. The acceptance of a gift should have as much publicity as possible.

In this case it is the defendant who seeks to rebut the plaintiff's occupation and possession of the farm by an allegation of a gift by the defendant's predecessor and having failed to adduce any evidence to prove the gift, the native trial court was entitled to give judgment for the plaintiff.

In view of the fact that the plaintiff's predecessor had been in undisputed possession of the said farm for more than thirty years plucking and enjoying the fruits and benefits thereof without accounting to the defendant or anyone, and by virtue of the evidence adduced by the plaintiff and witnesses to the effect that the farm was made by the plaintiff's ancestor Abena Bruwah, unless such possession is rebutted by satisfactory evidence proving that she obtained the cocoa farm by leave and licence of the defendant's ancestors, the native court of trial had no alternative but to grant a declaration of title to the plaintiff.

In the case of Renner v. The Fanti Consolidated Mines Ltd. (P.C. 1874-1928, 53), it was held that "Where there is a state of uncertainty as to boundaries, it is legitimate to inquire into the circumstances attending the conveyance and the state of possession following on it. In such a case possession seems the only safe guide."

This appeal is accordingly dismissed with costs for respondent fixed at G34 10s.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Akufo-Addo with him Prempeh

Defendant / Respondent

Owusu

Referals

Renner v. The Fanti Consolidated Mines Ltd.  P.C. 1874-1928, 53.

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