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Evidence - Admissibility -
Traditional evidence -
Principles for admission as
exception to hearsay rule -
Evidence Decree 1975 (NRCD 323)
s 128, Courts Act 1971 (Act 372)
s 49(2).
Customary law - Family property
- House - Extension by family
member to family property does
not change property to personal
property of member.
On 21 April 1987 the plaintiff,
suing as the head of Salome
Kwabena family of the Aduana
clan of Akropong Akwapim
commenced an action in the
circuit court, Akropong Akwapim
against the defendants for a
declaration that (i) Kwapong
Atiemo, the late husband of the
1st defendant and father of the
other defendants, had no
interest in the house No S90,
Akropong Akwapim; (ii) that the
death of the said Kwapong Atiemo
terminated any interest the
defendants had in the said
house; (iii) an injunction to
restrain the defendants from
having anything to do with the
said house and (iv) damages for
false imprisonment. The
defendants claimed that the
property was acquired by the
father of the said Kwapong
Atiemo and that he made a valid
customary gift thereof to his
children (including the said
Kwapong Atiemo), his nephews and
nieces. They counterclaimed,
inter alia, for a
declaration that the house was
family property of the late
Atiemo and not the plaintiff, an
injunction to restrain him from
entering or having anything to
do with the house and damages
for trespass. The plaintiff
testified that the disputed
house was built by Yirenkyi, his
mother’s uncle, on a land he
acquired from one Obirebea.
Atiemo succeeded Yirenkyi upon
his death in 1911. He added one
room to the disputed house
before his death intestate in
1951. The house and other
properties inherited by Atiemo,
being family properties, passed
on to Sabu, then to Asante and
finally to the plaintiff. He
maintained that the property
belonged to the Salome Kwabena
family of the Aduana Clan of
which he was the head. The
plaintiff was five years old in
1911 and lived at Pratu near
Tinkong but moved into the house
in Akropong in 1914. He got to
know from the family that the
house in dispute was built by
Yirenkyi. His source of evidence
was both traditional and
personal knowledge. The 1st
defendant on the other hand
sought to establish that the
land and the house in dispute
were the self-acquired property
of Atiemo’s father which he
subsequently gifted to his
children, nephews and nieces.
She disclosed that she did not
meet her late father-in-law and
was therefore not a witness to
the alleged gift. Of the nephews
who must have benefited under
the said gift only the plaintiff
was alive, and he denied the
alleged gift, as claimed by the
1st defendant. Ofori Atiemo, a
son of the donor, was alive but
was not called by the defendants
to prove the gift. The trial
judge held that the said house
was the property of plaintiff’s
family and that the defendants,
by their conduct, had forfeited
their right of occupation and
were to be ejected forthwith. He
rejected the 1st defendant’s
hearsay testimony as not
qualifying as transmission of
family history to a member of
the family. The defendants
appealed to the Court of Appeal
and their counsel contended that
the judgment could not be
sustained having regard to the
evidence. He argued that the
excluded evidence, though in the
nature of hearsay, was
nonetheless admissible in terms
of section 128 of the Evidence
Decree 1975 (NRCD 323) as family
history.
Held -
(1) The family history which was
passed on to the plaintiff by
members of the family and the
facts he himself got to know
from at least the age of 40
years were admissible to prove
the claim that the disputed
house was family property.
Commissioner of Lands v Adagun
(1937) 3 WACA 206, Adjancote
Acquisition, In re Klu v
Agyemang II [1982-83]
GLR 852, CA, applied.
(2) Section 128 of NRCD 323 did
not provide for the admission of
traditional evidence to prove or
disprove title to family
property. It permitted multiple
hearsay evidence (traditional
evidence) in the nature of
declarations concerning the
declarant’s own birth, marriage,
divorce, relationship by blood,
marriage or adoption, ancestry
or other similar fact of his
family history. It enacted the
common law rule of evidence for
the admission of hearsay
evidence of pedigree. There was
no specific provision under NRCD
323 that preserved the admission
of multiple hearsay declaration
or reputation to prove title or
acquisition of property and the
like. That type of hearsay was
peculiar to customary law and
had no root in common law. Its
admissibility was however
preserved by section 117 that
permitted recourse to the Courts
Act 1971 (Act 372) s 49(2) which
provided that rules of evidence
hitherto applicable in
proceedings in Ghana should
continue to apply. Under the
prevailing rules of
admissibility of multiple
hearsay or traditional evidence
to prove title or any matter
appertaining to family or
ancestral property, the hearsay
declarant ought to be a member
of the family.
(3) Extensions made by a member
to family property did not make
it the personal property of that
member. The disputed house
having been found to be the
property of the plaintiff’s
family, any extensions made to
that building by Kwapong Atiemo
did not alter its character as
family property. Biney v
Biney [1974] 1 GLR 318, CA,
Santeng v Darkwa (1940) 6
WACA 52, Osei Yaw v Domfeh
[1965] GLR 418, SC applied.
Cases referred to:
Adjancote Acquisition, In re Klu
v Agyepong
[1982-83] GLR 852, CA.
Biney v Biney
[1974] 1 GLR 318, CA.
Commissioner of Lands v Adagun
(1937) 3 WACA 206.
Oblee v Armah
(1958) 3 WALR 484.
Osei Yaw v Domfeh
[1965] GLR 418, SC.
Santeng v Darkwa
(1940) 6 WACA 52.
APPEAL from the judgment of the
circuit court, Akropong,
Akwapim.
Allotei Mingle
for the appellants.
Awere Awuku
for the respondent.
FORSTER JA.
On 21st April 1987, the
plaintiff-respondent
(hereinafter referred to as “the
plaintiff”), Opanyin Kwame
Asante, suing as the head of
Salome Kwabena family of the
Aduana clan of Akropong Akwapim
commenced an action at the
circuit court, Akropong Akwapim,
against the
defendants-appellants
(hereinafter called “the
defendants”), all of Akropong
Akwapim. By his writ the
plaintiff asked for:
“(1) Declaration that the late
husband of the 1st defendant and
father of the other defendants
had no inheritable and or
transferable interest in the
House No S90, Akropong Akwapim.
(2) Declaration that the death
of Kwapong Atiemo, the husband
and father of the defendants,
terminated any interest of the
defendants in House No S 90 ,
Akropong Akwapim.
(3) Injunction to restrain the
defendants and each of them from
entering or having anything to
do with House No S90.
(4) ¢25,000 damages jointly and
severally against the defendants
for false imprisonment.”
In their statement of defence,
the defendants counterclaimed
for:
“(i) A declaration that house No
S90 is family property belonging
to the descendants of the late
Joseph Atiemo and not the
plaintiff.
(ii) An injunction to restrain
the plaintiff from entering or
having anything to do with house
No S90 B, Akropong, Akwapim.
(iii) ¢100,000 damages against
the plaintiff for nuisance and
trespass.”
The action was primarily between
the customary family of the
deceased, Kwapong Atiemo,
represented by the plaintiff,
and the widow and children of
Atiemo. The gravamen of the case
as set down in the summons for
direction was :
“Whether House No. S90 was the
property of the plaintiff’s
family or the property that was
personally acquired by late
Atiemo and if so whether a valid
customary gift was made in
favour of his children, nephews
and nieces.”
During the pendency of the
action Opanyin Kwame Asante died
and Rev Arko-Addo was
substituted as plaintiff.
For the resolution of the
conflicting claims by the
parties, the trial court had to
be satisfied on the primary
issue whether house No S90 was
or was not the property of the
plaintiff’s family. The trial
circuit judge was satisfied that
the said house was the property
of plaintiff’s family and that
the defendants by their conduct
had forfeited their right of
occupation and were to be
ejected forthwith.
It is against this judgment that
the defendants appealed to this
court.
Counsel for the defendants
contended before this court that
the judgment could not be
sustained having regard to the
evidence.
The plaintiff’s case was that he
was the head of family of Salome
Kwabena Aduana clan of Akropong
and that the disputed house was
built by Kwasi Yirenkyi on a
land he acquired from one Ama
Obirebea. Kwasi Yirenkyi was the
uncle of the plaintiff’s mother.
Upon the death of Yirenkyi in
1911, all his personally
acquired properties were
inherited by Joseph Kwabena
Atiemo. Atiemo had added one
room to the disputed house
before his death intestate in
1951. The house and other
properties inherited by Joseph
Kwabena Atiemo, being family
property, passed on to Kwasi
Sabu, then to Kwame Asante and
finally to the present
plaintiff. The plaintiff
maintained that House No S90 was
the property of the Salome
Kwabena family of Aduana clan of
which he was the head. According
to the plaintiff, therefore, the
estate acquired by Kwasi
Yirenkyi, including the disputed
house passed on to successive
successors of the family to the
present day. The plaintiff
testified that Joseph Kwabena
Atiemo, the father-in-law of the
1st defendant who succeeded
Kwasi Yirenkyi, never acquired
any property of his own. Kwabena
Atiemo was a teacher who taught
in schools in the Eastern and
Ashanti Regions. It was not
disputed that the said Kwabena
Atiemo died in 1951.
The late Kwabena Atiemo had
several children, Kwapong
Atiemo, the husband of the 1st
defendant being one of them. It
was common cause that in 1951
when Joseph Kwabena Atiemo died,
his son Kwapong Atiemo was
living outside Akropong and that
he married the 1st defendant in
1956. It was in 1960 that he
retired from his employment and
came to live in the disputed
house with his wife and children
and upon the permission of Kwame
Asante, then head of family.
This was, in sum, the evidence
of the plaintiff and his
witness, PW2, Augustina Abena
Aninakwaah, a sister of the
plaintiff, and who at the time
of trial was then aged 60 years.
The plaintiff was 5 years old in
1911 and lived at Pratu near
Tinkong. He however came to live
in the house in Akropong in
1914. He got to know from the
family that the house in dispute
was built by Yirenkyi. He later
became a minister of the
Presbyterian Church until his
retirement in 1979 when he came
to live permanently in the house
in dispute. The plaintiff’s
source of evidence was both
traditional and personal
knowledge. He was told by
members of the family that the
property belonged to the family,
having been built by Kwasi
Yirenkyi at whose death in 1911
the plaintiff was five years
old. He however came to live in
the house in 1914 at the age of
about eight years. At the death
of Atiemo in 1951, the plaintiff
was a grown-up member of the
family and at the age of
forty-five. Thus, his evidence
as regards the successive
inheritance of the family house
by first Sabu, then by Kwame
Asante must have been within his
personal knowledge. The family
history which was passed on to
him by members of the family and
the facts he himself got to know
from at least the age of forty
years were admissible to prove
the claim of the plaintiff that
the disputed house was and is to
date family property. In
Commissioner of Lands v Adagun
(1937) 3 WACA 206, Graham Paul
J, delivering the judgment of
the court, said:
“It is the undoubted practice
(in this country) to accept as
admissible in cases as to title
to family land evidence of the
tradition of the family
ownership ... and the oral
tradition is generally the only
evidence available as to
ownership of land earlier than
the memory of living witnesses.
The weight to be given to
traditional evidence is of
course another matter,
depending on how far it is
supported by other evidence
of living people of facts within
their knowledge.” (Emphasis
mine.)
See also In re Adjancote
Acquisition, Klu v Agyepong
[1982-83] GLR 852, CA.
The trial judge was therefore
right in admitting the evidence
of the plaintiff and PW2.
Judgment based on such evidence
which he believed cannot be
questioned by this court.
Learned counsel for the
defendants further contended
that the trial judge erred in
excluding the evidence of the
1st defendant as inadmissible
hearsay. The 1st defendant
sought to establish that the
land and the house in dispute
were the self-acquired
properties of Joseph Kwabena
Atiemo which he subsequently
gifted to his children, nephews
and nieces. One of the said
children was the late Kwapong
Atiemo, the husband of the 1st
defendant. He married the 1st
defendant in 1956, some five
years after the death of Joseph
Kwabena Atiemo. The couple came
to live in the disputed house in
1972 when the husband retired.
She did not therefore meet her
late father-in-law. She was not
a witness to the alleged gift.
As the trial judge found:
“... the 1st defendant is not a
citizen of Akropong. She never
stayed at Akropong before
marrying Kwapong Atiemo in 1956.
Joseph Kwapong Atiemo who the
1st defendant alleged bought the
land in dispute died five years
before she got to know her late
husband. This means that she did
not know how her husband came to
possess the land which she
claims to be the self-acquired
property of her husband’s
father.”
The judge then concluded:
“... whatever information she
might have had about the land
was told her by someone.”
The judge therefore rejected the
hearsay narrative as not
qualifying as “transmission of
family history to a member of
the family”. Counsel argued with
much fervour that the excluded
evidence, though in the nature
of hearsay, was nonetheless
admissible in terms of section
128 of the Evidence Decree 1975
(NRCD 323) as family history.
With due deference to counsel,
section 128 does not provide for
the admission of traditional
evidence to prove or disprove
title to family property. That
section admits multiple hearsay
evidence (traditional evidence)
in the nature of declarations
concerning the declarant’s “own
birth, marriage, divorce,
relationship by blood, marriage
or adoption, ancestry or other
similar fact of his family
history”. See also the
Commentary on the Evidence
Decree 1975 (NRCD 323).
Section 128 in effect enacts the
common law rule of evidence that
admits hearsay evidence of
pedigree.
There is no specific provision
under the Evidence Decree that
preserves the admission of
multiple hearsay declaration or
reputation to prove title or
acquisition of property and the
like. This type of hearsay is
peculiar to customary law and
has no root in common law.
The admissibility of such
evidence is however preserved by
section 117 of the Evidence
Decree. By that section,
“hearsay evidence is not
admissible, except as otherwise
provided by this Decree or
any other enactment”.
(Emphasis mine.) The
Courts Act 1971 (Act 372) which
provides for admissibility of
evidence is an enactment
contemplated by section 117 of
the Decree. Section 49(2) of Act
372 which falls under Part III -
Common Law and Customary Law -
provides that:
“... such rules of evidence ...
as have hitherto been applicable
in proceedings in Ghana shall
continue to apply without
prejudice to any development of
such rules which may occur.”
It is therefore section 49(2) of
the Courts Act and not section
128 of the Evidence Decree, that
provides for the continued
admissibility of traditional
hearsay narrative. Under the
prevailing rules of
admissibility of multiple
hearsay or traditional evidence
to prove title or any matter
appertaining to family or
ancestral property, it is
required that the hearsay
declarant must, as the judge
rightly said, be a member of the
family.
The 1st defendant’s claim that
the disputed house belonged to
her late father-in-law and not
Kwasi Yirenkyi was based upon
her own assumption and
information, the source of which
she failed to identify. In her
evidence she said:
“I did not meet Kwasi Yirenkyi.
I came to hear of his name... He
lived at Pratu village. I was
told Kwasi Yirenkyi used to
visit Akropong and then go back
to his village.”
She further stated that since
none of the children of Kwasi
Yirenkyi lived in the disputed
house she inferred that he could
not have been the owner of the
house. The evidence was not
sufficiently probative of her
claim that the house was not
built by Kwasi Yirenkyi.
On the crucial issue of the
alleged gift of the disputed
house by Atiemo to his children,
nieces and nephews, the 1st
defendant testified as follows:
“My evidence about the
presentation of the rooms as a
gift is what I have been told
for I did not meet my husband’s
father.”
Of the nephews who must have
benefited under the said gift
only the plaintiff was alive,
and he denied that there was any
such gift as claimed by the 1st
defendant. The 1st defendant
however testified that Ofori
Atiemo, a son of the donor, was
“alive”. Ofori Atiemo’s
interest, unlike the plaintiff’s
could not have been adverse to
the defendants’ claim. This
material witness was not called
by the defendants to prove the
gift, a matter of which the
defendants themselves had no
personal knowledge. That
omission was necessarily fatal
to the case of the defendants.
In Oblee v Armah and Affipong
(1958) 3 WALR 484, 489, Ollennu
J, as he then was, rejecting the
hearsay narrative of a witness
in similar circumstances
observed:
“... he had no personal
knowledge of the grant which the
stool made to his father 45
years ago; I cannot therefore
accept his evidence of the grant
as traditional evidence since
his father is alive.”
Having failed to call Ofori
Atiemo who was alive at the time
of the trial, the 1st
defendant’s evidence was rightly
rejected by the court below.
At the trial the plaintiff
tendered exhibit A and the
defendants also tendered exhibit
1. Both were documents
evidencing the terms of a
settlement between the late
Kwame Asante and 1st defendant’s
late husband Atiemo. It is
common cause that in 1982, Kwame
Asante brought an action against
Atiemo in the High Court,
Koforidua, for declaration of
title to house No S90 and some
farm lands which Atiemo was
claiming as his properties.
According to the plaintiff the
case had travelled some distance
when Atiemo appealed to the
Presbyterian Church to help
settle the matter out of court.
The church accordingly
intervened, sought leave of the
court and settled the matter
between the parties.
Exhibit A dated 8 February 1982
was the terms of settlement. It
was prepared by PW1, Edwin
Kissiedu Akunnor, a teacher by
profession and then session
clerk of the church. According
to PW1, both parties were
present and stated their case.
The church then arrived at a
settlement which the parties
accepted. The terms were then
typed out and the parties
subscribed by their signatures.
PW1 also signed as witness. He
then sent exhibit A to the High
Court judge, Koforidua.
Paragraphs 1 and 4 of exhibit A
read:
“1. That the estate at Okorase
and Asuboi as well as the
building plot and the house No
S90 on it belong to the family -
they are all family
properties...
4. That Kwapong Atiemo and his
sister and their brothers could
continue to stay in the house as
children of the late head of
family, Kwabena Atiemo, and
owing allegiance to the present
head of the family Kwame Asante
who should give them all
possible fatherly care.”
The exhibit was copied to the
parties and the Chairman of
Akropong Presbyterian Church
Session. Exhibit 1 which was
also dated 8 February 1982 and
tendered by the defendants bore
only the signature of PW1 as
“Secretary”. The original was
similarly addressed to the High
Court judge and copied to the
parties and the Presbyterian
Session, Akropong. Exhibit A is
more detailed than exhibit 1,
which condenses the five
paragraphs in exhibit A into
just three. Paragraph 2 of
exhibit 1 reads:
“2. That Atiemo can stay in the
house where he is at present and
that his children can continue
to stay there.”
Mr Mingle for the defendants
contended that PW1 was the
son-in-law of the plaintiff;
that although the two exhibits
bore the same date yet the terms
differed. Counsel submitted that
the trial judge should have
considered the irreconcilable
terms in exhibit A and 1 and
made a judgment thereon. He
submitted that “the settlement
had nothing to do with the
house. It was about farms”.
I am not impressed by counsel’s
submission. In both exhibit A
and 1, title to the house in
dispute was made an issue.
Kwapong Atiemo was reported in
exhibit A to have stated as his
case that “when his father
retired and came back to
Akropong he bought the building
plot from Amma Obiribea, Odei’s
mother and built the house on
it...” The plaintiff, the late
Kwame Asante, is also reported
to have contended that “the
house is a family property and
Kwapong Atiemo and his brothers
cannot claim the house to be
their father’s property”. In
exhibit 1 the conflicting claims
of the parties were also stated.
The findings of the session in
both exhibits which were agreed
to by the parties also contained
references to the disputed
house. It cannot therefore be
correct that the issue submitted
to the session did not include
the dispute over house No S90.
Exhibit A was binding on Kwapong
Atiemo. He accepted the terms of
the settlement by subscribing
his signature to that document.
Exhibit 1 appears to be a
summary of the terms of exhibit
A. It is signed only by the
secretary of the Session and
copied to the parties. The
exhibits were dated 8 February
1982. Kwapong Atiemo died in
1983.
There is no evidence that at any
time after February 1982 and
before his death in 1983, he
challenged or resiled from the
terms of the settlement or took
any steps to set the documents
aside. He was thus bound by the
terms of the settlement in
exhibit A and the defendants are
equally estopped from
challenging the validity of the
terms of settlement. It binds
them.
The trial judge was therefore
right in his finding that House
No S90 was family property.
Counsel in his submission dwelt
extensively on extensions which
had been made by the 1st
defendant’s husband Kwapong
Atiemo to House No S90. The
plaintiff conceded to the
addition of one bedroom to the
house by Kwapong Atiemo. That
issue however was irrelevant,
the judge having arrived at the
right finding that the building
was family property. It is trite
law that extensions made by a
member to family property do not
make it the personal property of
that member.
In Biney v Biney [1974] 1
GLR 318 at 335, CA, Anin JA, as
he then was, said:
“... where a family member
builds on a vacant family land
by using his own private
resources, unaided by the
family, he acquires only a life
interest therein. Upon his
death, his building remains
family property, and is
heritable by members of his
immediate family. On the other
hand, if such a member secures a
grant from the family of a
portion of unoccupied family
land for his building in the
proper customary manner, the
house built by him on such site,
by his own effort and means
becomes his self-acquired
property which he can alienate
inter vivos or by
testamentary disposition.”
See also Santeng v Darkwa
(1940) 6 WACA 52. The rule
stated above is relevant only
where the issue raised by the
parties is with respect to a
vacant family land which is
properly granted to a member.
Any building put up by that
member, being his self-acquired
property, may legitimately be
alienated by him during his
lifetime, otherwise it becomes
family property, except that
upon his death intestate his
wife and children have a life
interest therein. This rule that
prescribes a life interest only,
if I may observe in passing, is
however no longer good law,
having been abrogated by the
provisions of PNDCL 111.
In the instant case, house No
S90 having been found by the
trial judge to be the property
of the plaintiff’s family, any
extensions made to that building
by Kwapong Atiemo did not alter
its character as family
property. As was held in Osei
Yaw v Domfeh [1965] GLR 418,
SC:
“(2) An improvement or an
extension made to a family
property by a person in his
capacity as a successor does not
take away the family stamp on
the property.”
The late Kwapong Atiemo could
not therefore have properly
alienated the family house No
S90 , even if there had been
proper proof of that fact. The
defendants therefore had no
interest in the property. They
lived in the house entirely upon
the bounty of the plaintiff’s
family.
Upon the evidence before the
trial court and the prevailing
relevant principles of customary
law, the judgment for the
plaintiff cannot be disturbed.
For the reasons I have given I
think the judgment of the court
below must be affirmed. The
appeal is dismissed.
AMUAH JA.
I agree.
ADJABENG JA.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner. |
