|
JUDGMENT
TWUMASI, J.A.:
This is an appeal from the
judgment of the High Court,
Accra in a land suit where the
respondent obtained judgment for
a declaration of title to a
certain piece of land situate
at a place near Pokuase said to
be under the allodial ownership
of the stool of Otublohum, Accra
and other reliefs ancillary to
the declaration of title namely
damages for trespass and
perpetual injunction.
The appellant whose
counter-claim for the same
reliefs and a further claim for
an order for recovery of
possession were dismissed has
appealed to this Court to
overturn the judgment.
The facts of the case in a
nutshell are necessary. The
respondent’s claim was based on
what he called a grant to his
predecessor of the said land by
the chief of Otublohum about
three hundred years ago and
enjoyment of quiet possession
for all these years without any
interference from the appellant
until recently when the
defendant committed acts of
trespass to the land.
For the purpose of this appeal
and, especially, in the light of
the thinking of this Court some
aspects of the evidence on
record attract focus of
attention and highlighting for
the benefit of the parties.
First the testimony of PWI. This
witness claimed to have been
conversant with the identity of
the respondent’s land and the
land of the appellant by reason
of the fact that he collected
rents from the lands of two
parties and accounted to them.
PW1 testified that the defendant
had recently trespassed onto the
plaintiff’s land to a distance
of about two miles. He further
testified that the respondent
granted land to one Asamaniwa,
grandmother of the appellant.
PWI’s testimony was very crucial
but it was not seriously
challenged in
cross-examination. A rule of
evidence of which our judges
notably legal giants like
Adumuah-Bossman and Taylor ;
JJSC (as they then were) were
very found of (see Ayiwah vrs:
Badu (1963) 1 GLR 86 at 95; Fori
vrs: Ayerebi (1966) GLR 627 at
645 and Bila vrs: Salifu (1971)
2 GLR 87 is that the legal
effect of a counsel failing to
challenge a witness by way of
cross-examination on the issue
vital to the success of his
client’s case is that his client
admits the fact asserted by the
witness.
No suggestion was made to PWI on
behalf of the appellant that no
rent was collected by PWI for
both parties. I shall revisit PW
3’s testimony in due course. PW2
also testified in confirmation
of what PWI said about the fact
that the parties owned separate
lands in the vicinity but that
the appellant had trespassed
onto the plaintiff’s land. He
also spoke of the grant of land
to the appellant’s grandmother
by the respondent in
consideration of marriage ties
between the appellant’s relative
and the respondent. PW3 who gave
evidence as the Gyasetse of
Otublohum also confirmed the
plaintiff’s claim. The learned
trial judge gave enormous credit
and weight to the oral
testimonies given by the
witnesses called by the
respondent, especially the
testimony of PW1 and appeared to
have encountered no difficulty
in so doing. Judging form the
confident and robust manner in
which he delivered himself with
regard to his assessment of the
evidence, I have no doubt that
the learned judge would have
come to the conclusion he
arrived at if the respondent had
not called PW2 and PW3 to offer
supporting or corroborative
evidence. He therefore preferred
the version of the respondent on
the issue of title to the land
by rejecting as invalid a
document purporting to be an
indenture executed by one Nii
Amunakwa described in the said
indenture as the then Otublohum
Mantse. The Gyasetse’s testimony
was also significant in a
material respect because it
raised the issue of the status
of the said Nii Amunakwa,
namely, whether he was the chief
of Otublohum in 1964, the date
of the indenture. In the same
token the appellant called one
Nii Amu Gyan II to dispute PW3’s
claim as Gyasetse of Otublohum
and also to assert that Nii
Amunakwa was chief of Otublohum
in 1964. The learned judge’s
ground for his outright
rejection of the indenture was
based on what he conceived to be
legal deficiencies in the
drafting of the said indenture
and in the procedure for the
alienation of the land. He gave
two reasons namely: that the
indenture which purported to be
evidence of a gift of the
disputed land to the appellant
was not attested to by any
principal elder of the stool.
Also it did not contain a jurat
to show that the purported
donees who were all illiterates
understood the nature of the
document to which they impressed
their thumbprints. The learned
trial judge was of the view that
these were essential legal
requirements missing in the
indenture. He therefore
declared it null and void and
ended his judgment by saying
that the law relating to
priority of registered
instruments could not operate in
favour of the appellant’s gift
of the land as against the
customary grant of the plaintiff
as contended by counsel for the
appellant.
He consequently granted the
respondent all the reliefs he
sought and awarded him costs.
Against this judgment three
grounds of appeal were filed and
I reproduce them hereunder:—
(1) The learned trial judge
erred in law when he declared
the Deed of Gift registered as
LR No. 1146/1967 null and void.
(2) The learned trial judge
erred in law by not disregarding
the evidence of PW2 and PW3.
(3) The judgment is against the
weight of evidence.
The determination of ground one
calls for a brief exposition of
the legal concept of priority of
instruments. And the statute
which readily comes to mind is
the Lands Registry Act 1962 (Act
122) and the case of Boateng
vrs: Dwinfour (179) GLR 360
(Apaloo CJ Anin and Francois
JJA, as they then were.
The relevant part of the
judgment is at page 369 per Anin
JA (as he then was) and it is as
follows:—
“that the plaintiff’s
registration of her deed… under
sections 24-26 of the Lands
Registry Act 1962 (Act 122) did
not confer on the instrument
priority over the defendant’s
subsisting parol contractual
tenancy granted by the vendor to
him in 1970 for section 26 of
Act 122 which is in pari
material …. with the repealed
Land Registry Ordinance confers
priority on a registered
instrument only as against other
instruments affecting the same
land …. and enjoys no priority
over…earlier parol customary
..tenancy agreement”.
See a learned article captioned
“Registrable Instruments”
published in the (1980) 12 RGL
page 166-175 where the author
Dr. Agbosu quoting a passage
from the book “Ghana Land Law”
by Bentsil-Enchill page 310
laments the fact that Act 122
excluded registration of
customary grants of land in
Ghana.
It is my view that the
interpretation of the law in the
above-cited case on tenancy is
transferable and applicable to
the instant case. But it
appears to me that the learned
judge and the counsel for the
appellant were preceeding on the
understanding that if the
indenture tendered by the
appellant had been accepted by
the trial court as properly
executed, then its legal effect
would have been that it took
priority over the respondent’s
earlier customary grant by the
Otublohum Mantse. With the
greatest respect to counsel and
the learned judge this was a
misapprehension of the law.
The legal position is that the
maxim “nemo dat quodnon habet”
applies with full regour to this
case. In other words, the
Otublohum Mantse or stool for
that matter could not make
customary grant of the land to
the respondent and later execute
a deed of gift in writing to the
appellant of the same land. The
latter transaction is void ab
initio. The two cases cited by
counsel for the appellant before
the trial court on priority of
instruments, namely Kwofie vrs:
Kakraba (1966) GLR 229 and
Nartey vrs: Mechanical Lloyd
Assembly Plant (1987-88) 2 GLR
314 SC are inapplicable to this
case. In actual fact in the
latter case the Supreme Court
cited with approval dicta of
Anin JA in Dwinfour’s case.
Interestingly enough, counsel
for the respondent, at the court
below also seemed to have found
himself engulfed in the
controversy surrounding the
concept of priority of
instruments, for in his address
to the trial judge he is
recorded to have stated that
since (in his view) the alleged
deed of gift and its subsequent
registration were null and void,
the equities could be equal and
the first in time to get the
disputed land they were owners
of the said land. The correct
maxim as understand it is:
“Where the equities are equal
the law prevails”. This maxim
does not apply to this case in
any event. The foregoing
analysis of the legal situation
should therefore set at rest the
issue of priority of Exh “1” the
appellant’s indenture of 1964
even assuming it was valid. The
learned trial judge had before
him evidence from the
respondent’s representative and
PWI (forgetting the evidence of
PW2 and PW3) which was
sufficient to secure for the
plaintiff a finding in his
favour that a customary grant of
the land had been made by the
Otublohum stool represented by
its occupant many years ago and
that respondent’s predecessors,
like himself, had enjoyed long
and quiet possession. In fact
the learned trial judge made
this finding and he cannot be
faulted in that regard. This
analysis of the law does in a
sense expose ground one of the
grounds of appeal as a
non-starter, I nevertheless
proceed to deal with it if no
other reason than that it would
serve as a useful academic
exercise.
A jurat as it was held by
Cecilia Koranteng Addow J (as
she then was) in Kotokoli vrs:
Sarbah (1981) GLR 496 rightly
referred to by counsel for the
appellant has never been a sine
qua non in the determination of
the validity a document executed
by illiterates. The purpose of
a jurat is to serve as prima
facie proof that the contents of
a document were understood by an
illiterate who executed it. The
illiterate Protection Ordinance
Cap 262 as its title
demonstrates was enacted to
protect illiterates against
those who try to enforce a
document against them. The rule
does not apply where the
illiterate is enforcing the
document except, of course where
there is a contention that the
document is fraudulent and the
illiterate is guilty of fraud,
e.g. by colluding with the
person with whom he executed
it. Because the issue of fraud
has not been raised before this
court, I prefer to abstain form
discussing it except in
parenthesis. Suffice it to say
that on the question of jurat
there was in fact one appearing
on Exh I at page 135 but it was
a defective one because the
person who purported to have
explained the contents of Exh. 1
did not write his name, a
feature which throws a dust of
fictitiousness on the whole
document.
I now proceed to ground two of
the grounds of appeal. Counsel
for the appellant cited the
cases of Allotey vrs: Abrahams
(1957) 3 WALR 280 and Quarm
vrs: Yankah and anor., (1930) I
WACA 80. These cases state that
where a land is alienated by the
occupant of a stool or head of
family without the consent
and/or concurrence of the
principal elders of the stool or
family such alienation was not
void but voidable at the
instance of the said principal
elders or other interested
beneficially in the property as
members of the stool family or
the family as the case may be.
The strange thing I find about
Exh. 1 is that even though in
the preamble it is stated that
those who attested to it as
witnesses are described as
elders only Mr. Addison is
recorded on Exh. ‘1’ as
Secretary/Elder. Counsel for the
appellant could have assisted
the trial court and of course
this court if he had put the
question to PW 3 to admit or
deny the status of Addison at
least as stool elder. All that
PW3 said was that Addison was a
stool secretary.
But by far the most crucial
issue about Exh. ‘1’ was the
question of whether Nii Amunakwa
was the chief of Otublohum in
1964. Part of PW3 testimony
relating to Addison’s
Secretaryship pleased counsel
for the appellant.
Unfortunately for counsel
however PW3 was emphatic that in
1964 Nii Amunakwa II was not the
Otublohum Mantse. PW3 being the
truthful witness that he
appeared to be because he
admitted what was true and
rejected falsehood said that in
1964 Nii Amunakwa was not the
chief of Otublohum, that in that
year Otublohum was being ruled
by a council of elders headed by
Nii kpakpo Oti. He further said
that there was a stool secretary
at that time. He was J.A.
Addison. Then a question was
put to PW3:—
Q. Who was Otublohum Mantse in
1964
A. Nii Kpakpo Oti was the
acting Otublohum Mantse in 1964.
Q. Did Nii Amunakwa become
Otublohum Mantse
A. Yes from 1967-1969.
Counsel for the appellant argued
that the document was at least
voidable and it could be set
aside only by the stool elders.
This submission loses sight of
the fact the whole legal basis
of the document is being
impugned in the sense that the
issue of whether Nii Amunakwa
was the occupant of the stool in
1964 remained unproved. The onus
rested on the appellant to prove
this but he failed. The next
ground of appeal questioned the
competence of PW2 and PW3 to
give traditional evidence on
behalf of the respondent to the
effect the land in dispute was
granted to his predecessors many
years ago and they had been in
possession for several years.
PW2 in particular testified that
the respondent had made a grant
of the land to the appellant’s
great grandmother in
consideration of marriage.
Counsel submitted relying on
three cases Ofuman stool vrs:
Nchiraa and Branam stools (1956)
2 GLR 229, Ababio vrs: Gyamfi
(1962) 1 GLR 428 and Tsome vrs:
Gala and another (1961) 2 GLR
page 692 and submitted that to
qualify to give traditional
evidence a witness must be
either an office holder or a
boundary owner and submitted
further that the learned trial
judge erred by not excluding the
testimonies of PW2 and PW3. I
do not quarrel with counsel on
the law as enunciated in these
cases referred to for holding
(4) of the case of Ababio vrs:
Gyamfi says as follows:—
“the evidence of the Omanhene of
Apimanim was clearly admissible
since he belongs to the class of
persons such as stool office
holders who are competent to
give traditional evidence of
their respective stools: Ofuman
stool vrs: Nchiraa and Branam
stool (1957) 2 GLR 229 cited.
Also he is deemed to know the
boundaries of his state and as a
boundary owner he is eligible to
give traditional evidence as to
how his ancestors and
neighbouring owners acquired
their lands. Kuma vrs: Kuma 5
WALA 4 cited”.
The setback from which the
appellant’s counsel’s submission
suffered, however, was that the
learned trial judge did not rely
on the traditional evidence but
rather on evidence which these
two witness had given from their
own knowledge of facts in recent
years which lent credibility to
the respondent’s case. And in
fact this court finds that such
evidence was in abundance before
the court. For example PW2
testified that the defendant was
his brother and he knew the
boundary features between the
lands of the parties and he
stated these features as being
Ntome tress. Also PW3 gave
evidence within his own
knowledge about the Otublohum
stool affairs as they stood in
1964 and counsel for the
appellant accepted and relied on
a crucial part of it relating to
Mr. Addison to support his case.
In my view it does not stand to
reason and fairness for a party
to accept part of the testimony
of a witness which favours his
claim and deny his opponent the
benefit of the other portion of
the same testimony which he
finds unfavourable to his case.
This conduct is discountenanced
by equity and rules of evidence
touching credibility of
witnesses. I would hold that the
traditional evidence if excluded
from the testimonies of PW2 and
PW3 could not shake the strength
of the respondent’s case because
the learned trial judge found
and rightly in my view that
there was enough evidence on
record of recent facts in favour
of the respondent, such as the
establishment of schools,
churches, including the
Presbyterian Church in the area,
villages and towns and general
acts of ownership and possession
standing to the credits of the
respondent’s predecessors.
The third and last ground of
appeal concerned the identity of
the land, the appellant’s
counsel submitted that the
respondent failed to prove the
identity of the land. He quoted
the respondent’s answer to
questions in cross-examination
wherein the respondent admitted
that the land on which Owulaman
was built belonged to a family
called the Lutterodt Family
(alias Nii Veil) and that
because the appellant shared
boundary with the said Nii Veil
the learned judge was wrong in
entering judgment for the
respondent. Counsel also added
that the respondent failed to
prove fraud against the
appellant. On the issue of fraud
it is sufficient to say that the
success of the respondent’s case
did not require any such proof.
It is as well to emphasise that
where in any proceedings a party
ignorantly assumes a burden of
proof which is unnecessary and
granted that he does not prove
it his failure shall not be
fatal to his case if other
evidence on record otherwise
supports it, as it is evident in
the instant case. On the
question of identity of the land
with particular reference to the
Nii Nii Veil family the short
answer is that on the evidence
the respondent was under no
illusion whatsoever that he
shared boundary with the said
Nii Veil family. He says so
clearly in the schedule to the
identity of the land attached to
his Writ of Summons. His
witnesses especially PW1 said
the appellant has a land in the
vicinity which shares boundary
with the respondent’s land but
that the appellant has crossed
over to the respondent’s land to
a distance of about two miles.
In the said schedule attached to
the Writ the respondent
describes his land as Mayera
Owulaman but the questions in
cross-examination omitted Mayer.
I do not think that the
appellant succeeded in creating
any irreconcilable issue against
the respondent in the letter’s
answers in cross-examination.
In my view this ground of appeal
challenging the identity of the
land does not in my event arise
because in his own submissions
and addresses in the course of
the trial learned counsel for
the appellant had conceded the
identity of the land hence the
argument by him that he identure
Exht took priority of over the
customary grant on which the
respondent relied. He cannot
renege on that stance. The
question of identity should not
have been raised at all because
a site plan Exh. ‘B’ tendered
through DW1 appellant’s own
witness supports the
respondent’s claim on that
issue.
Upon examining the evidence and
the law I come to the firm
decision that the learned trial
judge came to right decision. I
would therefore dismiss the
appeal.
P.K. TWUMASI
JUSTICE OF THE APPEAL COURT.
ESSILFIE-BONDZIE, J.A.:
I also agree.
ESSILFIE-BONDZIE
JUSTICE OF THE APPEAL COURT.
BENIN, J.A.”
I also agree.
A.A. BENIN
JUSTICE OF THE APPEAL COURT.
COUNSEL
ENOCK ABOAGYE FOR THE
DEFENDANT/APPLICANT
No appearance for the
Plaintiff/Respondent. |
