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SERWAH v. KESSE


  • appeal
  • 1960-11-28
  • SUPREME COURT
  • GLR 227-231
  • Print

VAN LARE, SARKODEE-ADDO AND AKIWUMI, JJ.S.C.


Summary

Land?-Declaration of title?-Onus of proof?-Standard of evidence?-Competency of courts to entertain actions for title to land as against a stool?-Customary law?-Pre-enstoolment declaration of self-acquired property?-Exception to general rule.

Headnotes

The plaintiff was enstooled Queen Mother of New Juaben in 1948 and destooled in 1952. The defendant succeeded her on the Stool in 1952. Between 1948 and 1952 the Department of Agriculture paid rehabilitation grants in respect of 28 farms known as Koforidua North, Koforidua South and Akwadum to the plaintiff and after her destoolment the grants were claimed by her successor the defendant, on the ground that the farms were stool property and the grants were paid to the plaintiff between 1948 and 1952 as stool occupant and not as beneficial owner of the property. In the circumstances the plaintiff brought an action claiming declaration of title to the farms, the recovery of any payments made by the Department of Agriculture to the defendant, an account and also an injunction.The action was tried in the Land Court, Accra, by Ollennu, J. who held on the evidence that the farms in dispute were family property of the plaintiff and gave judgment in her favour. The defendant appealed to the Supreme Court on the grounds (1) that the plaintiff had not proved title beyond all reasonable doubt, (2) the Land Court had no jurisdiction to hear the case as it related to the recovery of property alleged to be stool property, and (3) the plaintiff had not declared the farms as private family property on her enstoolment and therefore by customary law the farms merged with and attached to the stool properties of the Queen Mother of Juaben.

Judgement

APPEAL from a decision of Ollennu J. in the Land Court, Accra on April 10, 1959, in favour of the plaintiff in an action for, inter alia, declaration of title to land.

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. (His lordship reviewed the findings of fact made by the trial judge and continued): On the evidence as a whole the appellant does not appear to have any answer to the strong case made by the respondent nor has she put forward for consideration any case in opposition to that made by the respondent. On the other hand from the evidence of the appellant and her witnesses one is bound to be led to the conclusion that the disputed farms are not stool properties nor could they possibly be attached to the office as alleged. There is no wonder therefore in my view for the trial judge's conclusion that the disputed farms belong to the respondent's family?-Kua family. This decision is in accordance with the principle of our customary law that among the Akans the immediate beneficial interest in a woman's self-acquired property descends to her children and their children?-children's children meaning the children of daughters only?-see the judgment of Ollennu, J. in Mills v. Addy (3 W.A.L.R. 357).

Nevertheless the appeal has been argued on certain grounds one of which [concerning the number of farms in respect of which the claim made] I have already disposed and I must now proceed to deal with the remaining ones. Notwithstanding the overwhelming strength of the respondent's case it has been argued on behalf of the appellant that the judgment in favour of the respondent is based only upon the weakness of the appellant's case. It is sufficient to say that it does not so appear to me. It has also been contended that the learned trial judge appears in his judgment to think that in a case such as this, that is to say, one eminently for a declaration of title, the onus shifted to the appellant who was the defendant in the case to establish her title. It is clear to me, however, that what the learned trial judge means by this remark is that in the absence of any probable defence to the plaintiff-respondent's case, the plaintiff-respondent must be entitled to judgment. Although agreeing that the onus never shifts in title cases, I am not in agreement with the proposition of law advanced on behalf of the appellant that a plaintiff in a suit for a declaration of title must prove his case beyond all reasonable doubt. But it must be emphasised that the respondent who was the plaintiff in the instant case has in fact done this. The principle of law which the courts in this country have always followed is that:

?"The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant's case. If this onus is not discharged, the weakness of the defendant's case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant ". Per Webber, C.J. in Kodilinye v. Odu (2 W.A.C.A at p. 337).

In the present case, however, the respondent well discharged the onus on her to prove her title and the evidence is not conflicting in any [p.229] way. The above quoted principle as to the onus required in title cases in my view, however, does not equate the degree of proof required by a plaintiff in a civil suit to the degree required of the prosecution in a criminal matter. The law as I understand it is that in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party.

The general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue. In the instant case the respondent asserts one affirmative, that is to say, that the disputed farms are her family property whereas the appellant also asserts another affirmative, that is to say, that they are stool properties. It is understandable, therefore, why the learned judge used the expression complained of, having been satisfied that the respondent has established her claim but the appellant has failed to do so.

?"The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.

This in my view is exactly the course which the learned judge adopted concerning which there can be no argument.

I have already clearly indicated that the action in this case is brought to determine title to certain farms in dispute in order to ascertain which of the parties is entitled to receive the rehabilitation grants payable in respect of them. I cannot by any stretch of imagination conceive that this can be a constitutional matter and that the Land Court has no jurisdiction, as learned counsel for the appellant has submitted before this court. Attention has been drawn to section 88 (2), Cap 4, (now section 41 (b), Courts Act, 1960). The earlier section read as follows:?-

?"The High Court and Magistrates' Courts shall not have jurisdiction to entertain either as of first instance or on appeal any civil cause or civil matter instituted for?- . . .

"(2) the recovery or delivery up of Stool property in connection with any such election, installation, deposition, or abdication."

That this is not such a case is clear, and I find no substance in the argument advanced as to want of jurisdiction in the court where the case was tried. A claim for a declaration of title to land even against a stool which may lay claim to such land as a stool property does not oust the jurisdiction of the courts within the meaning of the above quoted limitation imposed upon the jurisdiction of the High Court. [p.230] I now come to consider the last of the grounds of appeal argued which is as follows:?-

"That the plaintiff gave no evidence that she had declared the lands in dispute as her private family property at the time of her enstoolment as Queenmother of New Juaben and the learned trial judge was therefore wrong in holding that the said lands were the private family property of the plaintiff.?"

Learned counsel relies on the law laid down in Antu v. Buedu (F.C. 1926-29, 474), which is that unless a chief's private property is earmarked when he ascends to the stool, it becomes mixed up with the stool property and cannot be claimed by him on deposition. He further submits that the principle of law so enunciated has no exception and there can be no instance when it cannot apply. He has argued that in the absence of evidence that the respondent earmarked her said family property, that is to say, the disputed farms when she became Queenmother of New Juaben, by customary law her said property became merged and the said property must be deemed to have become a property attached to the stool of the Queenmother of New Juaben.

I am unable to agree. The exception to the general rule has been laid down by a later decision of Yamuah VI v. Sekyi (3 W.A.C.A. at p. 58) when the West African Court of Appeal accepted and attached great importance to the evidence that:

?"the private property of a man put on the Stool as Ohene does not go to the Stool and he can dispose of it as he likes, and that if he is trading whilst on the Stool he can do what he likes with what he makes by his trading if he is trading with his own money."

In my view the following statement of the law which I quote from the judgment appealed from relating to the position appears to me to be wholly correct:

?"There are many exceptions to that rule one of them is that where the stool holder has to the knowledge of the elders of the stool, kept his self-acquired property distinct or where whilst he is on the stool he engages in his private business to the knowledge of the elders, from which he earns an independent income, his failure to make pre-enstoolment declaration of his self-acquired property will not make his self-acquired property stool property.

The general rule of customary law referred to by counsel applies either to ancestral stools which have accumulated properties over the generations or to stools to which definite properties were attached upon their creation. The occupant of such stool is expected to use part of the proceeds of such stool property for his upkeep and to apply part in acquiring more properties for the stool. Therefore if an occupant of a stool has a private source of income which is not known to the elders of the stool it is presumed that he maintains himself from the stool property he met, and that any property he acquires whilst on the stool was acquired with funds of the stool and are therefore stool property?". [p.231]

In the present case the stool of the Queenmother of New Juaben is found to be of recent creation and not an ancestral one and as the stool had no property which could possibly be mixed up with any self-acquired property of its occupant, there was no necessity for the respondent or for the deceased member of the respondent's family who occupied the said stool to declare her or their private property prior to or upon installation, as no presumption could arise that such private property became mixed up with stool property by operation of customary law.

In the result I am of the opinion that the learned judge came to a correct conclusion on the facts and on the law involved and I would therefore dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Benjamin (with him Anim)

Defendant / Respondent

Akufo Addo

Referals

(1)  Mills v. Addy 3 W.A.L.R. 357.

(2)  Kodilinye v. Odu 2 W.A.C.A. 336.

(3)  Antu v. Buedu Full Ct. 1926-1929, 474.

(4)  Yamuah IV v. Sekyi 3 W.A.C.A. 57.

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