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  • appeal
  • 1960-03-29
  • GLR 68-73
  • Print



Land?-Trespass?-Estoppel per rem judicatam?-Requirements of valid customary will?-Evidence corroborative of gift inter vivos?-Defendant in trespass case cannot defeat claim of plaintiff in possession by proving jus tertii?-Member of family entitled to occupy family land if occupation with consent of head and principal members of family.


Djokobri had purchased fifteen ropes of land at Akatawia in the Manya Krobo State; he was father of a daughter Maku, and a son Tetteh Yohuno. Maku's granddaughter Theresa Summey claimed that Djokobri had made a gift of one rope of this land to his daughter Maku, and that title to the land was now vested in her (1) by virtue of a will in accordance with customary law made in her favour by Maku and (2) by a gift inter vivos by Maku, since when she had been in undisturbed possession until the entry by Yokwe Yohuno and others upon the land. [p.69]Yokwe Yohuno and the others who had entered upon the land claimed, to the contrary, that the land in dispute was one of three ropes which Djokobri had given to his son Tetteh Yohuno, father and uncle of the three who had entered. They also contended that Maku had occupied that rope of land merely as a licensee of her brother, Tetteh Yohuno, and was therefore not in a position to give it to Summey.Summey sued Yokwe Yohuno and others in the Manya Krobo Native Court " A " claiming damages for trespass, and an injunction. She tendered two judgments by tribunals of competent jurisdiction in which the issue of Maku's ownership had already been resolved in Maku's favour. The court gave judgment for the defendants, holding that Summey had failed to prove the gift by her great-grandfather Djokobri to his daughter (her grandmother) Maku. The unsuccessful plaintiff (Summey) appealed to the Land Court.


APPEAL from a decision of the Manya Krobo Court ?"A?" Division on June 3, 1959 in favour of the defendants in an action for damages for trespass and an injunction.

The appellant sued in the Manya Krobo Native Court ?"A?", claiming damages for trespass to, and injunction in respect of, a piece of land measuring one rope and situate at Akatawia in the Manya Krobo State. The respondent resisted the claim, contending that their entry upon the land was in exercise of rights vested in them as owners of the land.

Trespass is a wrong against possession, and therefore the main fact which a plaintiff in an action for trespass must prove in order to succeed is possession. But where the defendant to an action in trespass pleads ownership, he puts the plaintiff's title in issue; in such a case the plaintiff cannot succeed on his claim, unless he is able to prove his title to the land, or unless he proves that as between him and the defendant a better right to immediate possession is vested in him (the plaintiff) ?-see the judgment of the Court of Appeal in Nkyi XI v. Kumah ([1959] G.L.R. 281). Thus the defence set up by the defendants put the plaintiff to proof either of her title to the land, or of a better right vested in her to immediate possession of the land in dispute.

The plaintiff claimed title through her grandmother, one Maku, deceased. The proof of plaintiff's title therefore involved two processes; first, proof of her root of title; secondly, proof of her own title. It is common ground between the parties that the one rope of land in dispute was originally part of 15 ropes of land purchased by one Tetteh Djokobri, a common ancestor of the parties. The said Djokobri was the father Maku, and also of Tetteh Yohuno, father and uncle of the defendants, through whom the defendants claim. But while the plaintiff's case is that Tetteh Djokobri made a gift of this land to his daughter Maku, the defendants on the other hand say that the land in dispute is one rope out of three ropes of land which Djokobri gave to his son Tetteh Yohuno as a gift, and that Maku occupied that land as a licensee of her brother Tetteh Yohuno.

The native court held that the plaintiff had failed to prove that Tetteh Djokobri made a gift of the land in dispute to her grandmother Maku. Nothing could be more obvious than that the said finding of fact made by the native court was hopelessly against the weight of evidence; apart altogether from the oral evidence led by the plaintiff and her witnesses (which is supported, inferentially, by the evidence of the defendants and their witnesses) there are two pieces of documentary evidence on the record, viz., two judgments of tribunals of competent jurisdiction, which provide conclusive proof that the said issue had already been resolved in favour of Maku in judicial proceedings which are binding upon the parties to the present suit. The native court should, therefore, have held that the [p.71] defendants are estopped by those judgments from re-litigating that issue, and from denying Maku's title to the land in dispute as a donee of her father Tetteh Djokobri.

On the issue of her own title the plaintiff had two strings to her bow; they were:

(1) that the land became vested in her by virtue of a will in accordance with customary law, made in her favour by her grandmother Maku, and

(2) that in any event, her grandmother Maku had made a gift inter vivos of that land to her, and had placed her in possession of it, and she has been in undisturbed possession since the date of the gift many years ago, and her labourers have been farming it for her until her possession was disturbed by the defendants' entry upon the land.

It appears from their judgment that the native court did not appreciate any of the issues raised in the case, whether of fact, or of customary law. In those unfortunate circumstances I am bound in the interest of justice to examine each of the issues raised, and to resolve it upon the evidence on the record and upon the customary law as I understand it.

In support of her plea of a will made in accordance with customary law, the plaintiff tendered in evidence a written record of the declaration alleged to have been made by her grandmother Maku. This document was admitted in evidence and marked " C ". The oral evidence as to the making of that testamentary disposition is very feeble. In my opinion, however, that document (Exhibit " C ") cannot be acted upon in the determination of the plaintiff's title to the land, because, in so far as it purports to be a record of a will made in accordance with customary law, it is invalid because there is no evidence that its making complied with the essential requirements of a valid customary will, which are: ?-

(1) the disposition must be made in the presence of witnesses, who must hear what the declaration is and must know its contents;

(2) the member of the family who would have succeeded the person making the will, had the latter died intestate, must be among the witnesses in whose presence the declaration is made, and

(3) there must be an acceptance, by or on behalf of the beneficiaries, indicated by the giving and receiving of "drinks?".

Native custom knew no writing, but I am of the opinion that in these modern days, a testamentary declaration made in accordance with customary law may be recorded at the moment it is made, and signed by the person making it and attested by the witnesses. Such a document could, in my view, if proved, be used as evidence of the making of a customary will. One of the main differences between a will made in accordance with the Wills Act, 1837 and a will made in accordance with customary law is that in the former the attesting witnesses may not know the contents of the will, while in the latter they must know. The plaintiff therefore failed to prove her title as based upon the customary will.

As to the gift inter vivos, there was not sufficient evidence that the [p.72] alleged gift was made with the publicity which customary law requires to make such a gift valid. But there was strong evidence that the donor, as soon as possible after the gift, published to the principal members of her family (including the head) that she had made the gift to the plaintiff. Further, there is sufficient evidence that the plaintiff was in possession of the land for some years before the death of the donor Maku, and that since the latter?'s death the plaintiff?'s possession has never been disturbed or challenged by Maku?'s family, in whom by customary law Maku?'s self-acquired property (if still her?'s) would become vested in the event of her death intestate. The acquiescence of the head and principal members of Maku?'s immediate family in the plaintiff?'s continued possession and occupation of that land is strong circumstantial evidence which corroborates the plaintiff?'s oral evidence of a gift inter vivos.

In a civil case a plaintiff need not prove his case beyond reasonable doubt; he can succeed if he produces evidence which weights the balance of the probabilities in his favour. The preponderance of evidence on the record in the instant case is that the plaintiff acquired title to the land upon a gift of it made to her by Maku.

Learned counsel for the defendants appreciated that his clients could not maintain their defence that they are owners of the land. He quite properly argued the appeal upon the basis that Maku was the owner in possession of the land at the date of her death, and that the land is now the property of her family, of which plaintiff?'s first witness is the head and the person in whom the land would vest for and on behalf of the family upon Maku's death intestate. On those grounds counsel submitted, as apparently his clients also contended in the native trial court, that the plaintiff had no locus standi to sue (she not being the head of Maku's family, and there being no evidence that the family had appointed her successor to Maku) and especially so because P.W.1 had said in cross-examination that he was the proper person to sue. Such a plea is not open to the defendants. A defendant in a trespass case cannot defeat the claim of a plaintiff in possession by proving jus tertii?-that title to the land is vested in a third party through whom he does not claim.

Having set up title to the land as their defence, the onus was upon the defendants to lead evidence to show that the right to possession of the land resided in them. Having failed to show such a right, their entry was shown to be wrongful and the native court should have entered judgment for the plaintiff, who was proved to have been in possession of the land at the date of the defendant's entry thereon (Adeshoye v. Shiwoniku (14 W.A.C.A. 86).

But even if I am wrong in my finding that the plaintiff proved her gift inter vivos, the plaintiff must succeed in any event upon the evidence because, as a member of Maku's family, she is by customary law entitled to occupy and to farm a portion of the family land, so long as her occupation and possession is with the consent, express or implied, of the head and principal members of the family, the owners of the land. The head and members of Maku's immediate family (which includes Maku's surviving children) have never objected to the plaintiff's possession and occupation of the land; to the contrary, the head of the family came to give evidence [p.73] to support the plaintiff's claim. In my opinion these facts are evidence that, even if the plaintiff is not the owner of the land, her possession of it is lawful, and that she can successfully maintain an action for trespass against the defendants, who are shown to have no vestige of right to the land.

For these reasons I allow the appeal, and set aside the judgment of the native court, including the order as to costs; any costs paid to be refunded.


<P>Appeal allowed.</P>

Plaintiff / Appellant

In person.

Defendant / Respondent



(1) Nkyi XI v. Kumah [1959] G.L.R. 281;

(2) Adeshoye v. Shiwoniku 14 W.A.C.A. 86.

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