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JUDGMENT
QUAYE J.A.
This appeal is from
the decision of the High Court, Kumasi, given on 30th
May, 1996 in favour of the plaintiff/respondent (herein
called the respondent), By his writ of summons filed on
3rd June, 1985 the respondent herein endorsed a claim
for"
(a) a declaration that
all piece of land situate at a place known and commonly
called BESEHO AHOREYE at Aburom near Saman on Kwabere
Kenyase Stool land and having boundaries with Odumanafo
Stool land, Saman Dikro's farm land, Opanin Asuria of
Konkodie's land, the land of Serwaa Akoto and the Stool
land of Abodwese and measuring about 50.59 acres more or
less........is property of plaintiffs material family
(b) .........a
declaration that the land described........above was the
subject of a pledge by the plaintiff's predecessor Kofi
Duro for the sum of four pounds thirteen shillings
£4.13/-
(c) An order against
the defendant for the redemption of the land described
....above by the payment to the defendant by plaintiff
of the said sum of £4.13/-.
(d) An order of
perpetual injunction to restrain defendant, his
servants, Agents and assigns from interfering with the
plaintiffs right in the said land."
The crux of the action
therefore appears to be firstly to declare or confirm
the ownership of the defined subject land in the
respondent, and when that hurdle of ownership had been
cleared in favour of the respondent, for the court to
proceed to make a second finding that the said piece of
property measuring some fifty acres or more, was subject
of a pledge by the predecessors of the respondent to
those of the defendant/appellant (in the Judgment simply
referred to as appellant) By his defence, the appellant
merely claimed his family ownership of the subject
property and counterclaimed for a declaration of title
thereto and also for an order of perpetual injunction
against the respondent and his family.
The respondent gave
evidence and was supported by three witnesses who
testified as boundary owners and related what they know,
observed or had been handed down by traditional evidence
to them respecting the disputed land. His evidence
centered on how the disputed land came to be owned by
his family. According to the unchallenged evidence of
the respondent an ancestress of his, by the name Nana
Adwapa was married to one Nana Antwi Kofi the then
Kenyasehene, and as the custom invariably was, the
husband/chief sealed off the marriage with a gift of the
disputed land to his said wife. The respondent named one
Boadu Twafo the Kenyase Twafohene as the one who
physically demarcated the land to the respondent's
ancestress Nana Adwapa.
As was stated earlier
on this Judgment, the above evidence which materially
shows how the land was acquired, and underscores the
respondent's claim for a declaration of title, was
neither disputed nor challenged even in the remotest
terms by the appellant. The issue as to whether or not
the subject matter of this dispute was a gift to a
predecessor of the respondent by one Barima Antwi Kofi,
Kenyasehene, therefore needed no further evidence of
proof. The bare denial in his pleadings by the appellant
of the respondent's contention in his statement of claim
on the issue, was not sufficient to discharge the onus
upon the appellant to traverse specifically and
unequivocally the assertion made by the respondent. This
conclusion may be illustrated by reference to the Court
of Appeal decision in ARMAH VS: ADDOQUAYE (1972) 1GLR
109. The brief facts of that case as provided in the
head notes are that "The plaintiff claimed a declaration
of title to land and other consequential reliefs in the
High Court. Judgment was given for the defendant on the
ground that the plaintiff had failed to discharge the
burden of proof upon him. The plaintiff appealed to the
Court of Appeal and during the hearing counsel drew the
court's attention to the fact that that part of the
statement of claim (para.(2)) which recited his root of
title had not been traversed either specifically or
generally in the statement of defence. He submitted that
by virtue of Order 19 rules 14 and 18 of LN 140A/54 the
averments contained in paragraph (2) must be deemed to
have been admitted by the defendant and consequently
there was no need for the plaintiff to adduce any
evidence in the support of his title to the land. The
court held that:
"(1) Order 19 rule 14,
18 and 20 have one common object, namely, to compel each
party in his turn to admit fully or deny fully each
allegation of fact in the pleading of his opponent.
Under Order 32 rule 6 any party at any stage may move
for such Judgment on admissions of fact made, either on
pleadings or otherwise, as upon such admissions he may
be entitled to, without waiting for the determination of
any other question between the parties.......".
The action, BILLA vrs:
SALIFU (1971) 2 GLR 87, more directly addresses the
point on hand. In that action, an adultress admitted
sleeping with the named adulterer, however, this piece
of evidence was not challenged in cross-examination. The
trial High Court, Tamale held that—
"(1) plaintiffs'
evidence could only have meant that she was confessing
to having had sexual intercourse with the appellant. The
failure of the appellant to challenge this evidence was
in effect an admission of the allegation".
In the instant action
therefore where the respondent pleaded and further led
oral evidence to prove the basis of his claim of
ownership of the land in dispute, and the appellant
failed to challenge him in cross-examination and
furthermore failed to lead his own independent evidence
of how his own family acquired the land in question, the
respondent was deemed in law to have proved his title to
the land to justify a declaration made in his favour. In
spite of the appellants counterclaim for a declaration
of title to the disputed land, he failed absolutely to
lead an iota or scintilla of evidence on that issue to
make way for the court to decide the matter on a balance
of probabilities as provided under section 12 (1) of the
Evidence Decree 1975 (NRCD 323).
After the trial
therefore the trial court made two clear findings of
fact to wit (1) that the land in dispute is different
from the Asempare land and that the land in dispute was
Pledged to Okomfo Kofi Duro the defendant/appellant's
predecessor for an amount of £4.13/- and has since been
unredeemed: (ii) a pledge at customary law is
perpetually redeemable, and upon these, he gave judgment
in favour of the plaintiff/respondent, thereby
dismissing the counterclaim on the ground that it was
unproved. It was against this decision of the trial
judge that this appeal was filed contending that the
judgment is against the weight of evidence.
The evidence, apart
from establishing that the respondent's family owned the
disputed land also established the appellant's family's
possession of same. While the appellant could not show
how the property came into the possession of his family,
the respondent, supported by his witnesses were united
in proffering the evidence that one Oheneba Kwasi Adjei,
who was a husband of Kenyase Ohemaa Yaa Kanku, fell into
debt and pledged the family land aforesaid to a
predecessor of the appellant by name Nana Kofi Duro for
the sum of £4.13/-. This issue of evidence was accepted
by the trial judge as most probable. As a matter of
emphasis where the parties before the court respectively
claim adverse title to the same property and where one
party, supported by witnesses, led evidence of ownership
while his opponent was only able to show his possession
of the land but failed to show how he came to possess
it, then the appellate court would be loath to disturb
the finding by the trial court in favour of the party
who apart from establishing his ownership, also led
evidence to show how the property went into the
possession of his opponent.
Upon the evidence
available to us therefore, I find no reason to disturb
the trial court's finding that Nana Kwasi Adjei, the
respondent's predecessor was the one who pledge the
disputed property to the appellant's predecessor Nana
Kofi Duro for the sum of £4.13/-. That finding is not
contrary to the evidence on record.
The next issue raised
in this appeal relates to the period of the pledge and
the failure of the plaintiff's family to remind the
appellant's family from time to time of the existence of
the pledge. It was contended by, or on behalf of the
appellant that Nana Kwaku Dua II, the Asantehene during
whose reign according to the respondent, the purported
pledge was made, reigned from 1883 to 1888, so that the
said pledge took place at least 110 years before the
plaintiff made any attempt to redeem it. It was
contended furthermore by the appellant that neither in
the respondent's statement of claim nor in his evidence
in court did he assert that his family ever told the
successor of the late Nana Kofi Duro or any member of
the said Kofi Duro's family, about the alleged pledge of
the land in dispute to the appellant's family. The
appellant next referred to another incident of pledge of
land between the two families, this time however, from
the appellant's family to the respondent's. This took
place in 1925. This pledge was redeemed by the
appellant's family in 1949 when the sum involved, £12/-
was paid to the respondent personally, against a receipt
issued by the latter in evidence of the said redemption.
The appellant consequently submitted that if the
respondent's story was true that their family had made
an earlier pledge to the appellant's family, then common
sense would require of the respondent to, at least, make
reference to the pendency of the earlier pledge that
however was not the case. No reference whatsoever was
made to the alleged pledge in 1925 when the second
pledge was made nor in 1949 when it was redeemed. Two
issues were raised upon this complaint. In the first
place, it was contended that the pledge, if it existed
had lasted for too long, more than one hundred years.
Secondly, that the respondent is estopped from asserting
or redeeming the pledge. I will agree with the appellant
that the failure by the respondent and his family to
honour the customary law rule of reminding the family of
the pledgee or his successors in succession at funerals
or other occasions, social or otherwise, had the effect
of giving the pledgee family a false sense of ownership
of the subject matter in their own right. The legal
position on this issue of keeping the validity of the
pledge alive and the added issue of estoppel, however,
does not support the appellant. It seems that so far,
all the decided authorities to date as well as text
writers agree on this one fact that a customary pledge
is perpetually redeemable. The case of KUMA & ANOR. VS:
KOFI & ORS. (1956) 1 WALR 128 seems to contain all the
major ingredients of a customary pledge. In that case
the plaintiffs brought an action in a Native Court for
an order for the redemption of land alleged by them to
have been pledged to the defendant some years back. The
defendant resisted the claim contending that the land
was sold to them not pledged. The trial court's decision
in favour of the plaintiffs was over turned by the
Native Appeal Court. A further appeal at the instance of
the plaintiffs was upheld by the land Court, Accra where
it was held that
"(1) that the judgment
of the Native Trial Court in favour of the plaintiffs
was based on findings of fact and that the native Appeal
Court was not justified in reversing that decision.
(b) By Native Law and
custom a pledge can be redeemed at any time, and lapse
of time is no bar..."
The above principle of
native law and custom that lapse of time is no bar to
custom that the right of a pledgor to redeem his pledged
property was stated in an earlier case titled AGBO KOFI
vrs. ADDO KOFI (1933) 1 WACA 284. It is a principle
which answers the concern of the appellant herein that
the alleged pledge to Nana Kofi Duro by the respondent's
predecessor Nana Kwasi Agyei over one hundred years ago,
cannot be affected by the effluxion of time. The
principle that long duration does not compromise the
nature or redeemability of a pledge was applied in
ADOBEA & ORS. vs; Lassey (1956) 1 WACA 181 where it was
held inter alia that, by native custom a pledgor or his
successor may redeem a pledge at any time.
See also DZANKU VS:
KWADWO (1960) GLR 31 CA. In that case it was held that
"(1) lapse of time
cannot change the nature of a transaction from pledge to
sale.
(2) no matter how long
property may have remained a pledge, the successors of
the original owners may exercise their right to redeem
it whenever they decide to do so..."
The other aspect of the
contention raised by the appellant was in respect of his
perceived estoppel on the part of the respondent. His
complaint was that the plaintiff was very much involved
in the redemption of defendant's family pledge to
plaintiff's family involving the payment of £12 to
plaintiff himself, but never mentioned his family's
indebtedness of £4.13/- to defendant's family. He added
that if a pledge did exist the plaintiff would have
raised it in 1949 when defendant went and redeemed the
pledge. The issue here was an expression of doubt which
should negatively affect the respondent's claim. It is
my candid view that whatever doubt that was raised by
the failure of the respondent's family to keep on
reminding the appellants of the pledge was erazed by the
failure of the appellant to prove his family ownership
of the disputed property in the face of the overwhelming
evidence in favour of the respondent on that matter.
This makes respondent's evidence on how the appellant's
gained possession of the land more probable. Legally
however, failure by the pledgor to remind the pledgee
from time to time of the continuing pledge would not
operate to render the pledge invalid. See KUMA & ANOR.
Vs: KOFI & ors. (supra) where it was further held that;
"(3) The performance by
the original pledgor and his successors of the custom of
keeping alive the pledge by introducing themselves to
the pledgee's successors must be held to amount to
evidence of the continued validity of the pledge, but
failure to perform that custom cannot be allowed to
invalidate the existence of a pledge, if its existence
can be proved by some other evidence"
Further to the numerous
decided cases, text writers too maintain the principle
of the pledgor's right of redemption irrespective of how
long the pledge transaction had been in force. On this
point Gordon Woodman at page 150 of his book Customary
Land Law in the Ghanaians Courts stated that "In
customary law the mere passage of time does not cause
right to lapse." Although the learned author hinted that
this rule had been modified by the doctrine of estoppel
by acquiescence, he was equally quick to admit that "in
the case of pledges, however, there is considerable
authority for the view that not even that doctrine
applies, and that the pledgor may redeem after any
period of time, and despite any intervening events
whatsoever"
It is by now certain
that the existence of a pledge as alleged by the
respondent cannot be faulted by the failure of his
family to perform the custom of reminding the pledgee
family of its existence at any time the chance presented
itself. The fact that the respondent's owned the land
which is now in the possession of the appellant's
family, and failure by the latter to demonstrate to the
court how his family gained possession thereof, answers
the requirement, as stated in the KUMA V KOFI case
(supra) of proof by some other evidence. Even though it
appears that the respondent was not prudent enough to
set off his credit against the appellant when the latter
went to redeem their pledge in 1949 that fact alone is
not strong enough basis to disturb the findings of the
trial court. I will accordingly dismiss the appeal.
(SGD.)
G.M. QUAYE
JUSTICE OF THE APPEAL.
OSEI, J.A.
On 30/5/96, Owusu
Sekyere J. presiding over the High Court Kumasi
delivered a judgment in favour of the
plaintiff/respondent (hereinafter referred to simply as
plaintiff) against the defendant/appellant (hereinafter
referred to simply as defendant) The plaintiff s claim
before the court was for:—
(a) a declaration that
all that piece of land situate at a place known and
commonly called Beseho Ahoroye at Aburom near Saman on
Kwabere Kenyase stool land, and have boundaries with
Odumanafo stool lands,
Saman Dikro's farm
land, Opanin Asutra of Konkodies land, the land of
serwaa Akoto, and the stool land of Abodwese, and
measuring about 50.59 acres more or less, is the
property of the plaintiff's maternal family.
(b) a declaration that
the said land was the subject of a pledge by the
plaintiffs predecessor Oheneba Kwesi Agyei to
Defendants" predecessor for the sum of four pounds
thirteen shillings (£4.13/-
(c) an order against
the defendants for the redemption of the land described
in paragraph (a) above by the payment to the defendant
by plaintiff of the said sum £4.13/-
(d) an order of
perpetual injunction to restrain the defendants, his
servants, agents and assigns from interfering with the
plaintiff's right in the said land.
At the tail end of his
Judgment the trial judge concluded as follows:—
"I rule that the land
in dispute was a subject of a pledge by the plaintiff's
family to defendants family and can be redeemed by
plaintiff by paying the redemption money of £4.13/- or
its equivalent in Cedis. Plaintiff's claim therefore
succeeds. There will be ¢100,000 costs to the plaintiff
against the defendant". It is, to me, obvious that, the
trial Judge by this conclusion was declaring that
plaintiff's claim as endorsed on his writ of summons
(and explained further in his statement of claim)
"succeeds". His maternal family is accordingly declared
owner of that piece of land described in plaintiff's
writ of summons and granted the right to redeem the said
piece of land at any time by payment of the redemption
money of £4.13/-.
Dissatisfied with the
said judgment the defendants filed his notice of Appeal
on 5/6/96 to this court on the sole ground that the said
judgment is against the weight of evidence.
But in his submissions,
counsel for appellant seems to be arguing that the trial
Judges' pronouncement as stated is restricted only on
relief's (b) and (c) sought by the plaintiff on his
writ, and therefore the trial judge in effect never
pronounced that title of the land in dispute was vested
in plaintiff's family nor was perpetual injunction
granted to restrain the defendants family.
I have seen and read
the ENTRY OF JUDGEMENT filed on 5/6/96 which appears on
page 71 of the Record and I ansic satisfied that it
reflects all the (4) relief's endorsed on the
plaintiff's writ of summons and treats all of the (4)
relief's as constituting the plaintiffs' claim just as
intended by the trial judge when he declared "The
plaintiffs' claim therefore succeeds".
The Entry of Judgment
reads as follows:—
"THIS ACTION HAVING
COME on Thursday 30th day of May 1996 before His Honour
JUSTICE OWUSU SEKYERE of the High Court and the said
Judge having entered Judgment in favour of plaintiff
herein IT IS THIS DAY ADJUDGED that the plaintiff do
recover from the the defendant the following:—
(a) All that piece of
land situate at a place known as and commonly called
Beseko Ahoroye at Aborom near SAAMAN ON Kwabre Kenyase
stool land and having boundaries with Odumanafo stool
land, Saaman Odikro farm land Opanin Asutra Konkodies
land, the land of Serwaa Akoto and the stool land of
Abodwese, and measuring about 50.59 acres more or less
which is shown on the plan attached hereto, is the
property of plaintiff's maternal family.
(b) Against defendant,
a declaration that the land described in paragraph (a)
above was the subject of a pledge by plaintiff's
predecessor Oheneba Kwasi Agyei to defendants'
predecessor Kofi Duro for the sum of four pounds
thirteen shillings £4.13/-)
(c) An order against
defendant for the redemption of the land described in
paragraph (a) above by the payment to the defendant, by
the plaintiff, of the said sum of £4.13/-
(d) An order of
perpetual injunction to restrain defendant, his
servants, agents and assigns from interfering with
plaintiffs rights in the said land.
(e) Costs of
¢100,000.00 awarded in favour of plaintiff".
It is my view that what
the trial judge intended to communicate by his
pronouncement is what has been expressed in the Entry of
Judgment and that the judgment is not, and should not,
be restricted to reliefs (b) and (c) only, as contended
by Appellant, Counsel.
It will be useful to
recall the brief facts of the contention between the two
sides before proceeding further. The parcel of land
which is in dispute between the two parties is in the
possession of the defendants who are claiming ownership
thereof plaintiff on the other hand claiming the same
land on the basis that the land has, been his family's
property since the time it was acquired by way of gift
in marriage by plaintiff's ancestors Nana Adwupa. But
the land was at a stage in their history pledged to a
member of defendants' family and that is how the
defendants' family came to be in possession. The
defendant denies the plaintiff's story and in response
explains that it is rather his family who pledge their
land to the plaintiffs' family but that pledge has been
redeemed through the plaintiff himself and that the
redemption money being ($12sic) twelve pounds was paid
to the plaintiffs who issued a receipt therefor. It is
the contention of counsel for appellant that if there
was any such pledge between the parties, plaintiff's or
he himself would have mentioned it at least at the time
when defendant's family were redeeming their pledged
land from plaintiff's family. At the close of the
pleadings, issues set down for determination on evidence
were as follows;—
(a) Whether or not the
land the subject matter of this dispute was a gift to a
predecessor of the plaintiff by one Barima A. Kofi.
(b) Whether or not the
land the subject matter of this suit was pledged to one
Kofi Duro a predecessor of the defendant for the sum of
£4:13/-.
(c) Whether or not the
plaintiff was entited to the relief's plaintiff seeks.
Although the defendant
did not make, the plea of estoppel one of the issues for
trial he pleaded it in his amended statement of Defence
and Counterclaim which (I agree requires attention) as
being an issue raised by the pleadings.
After evaluating the
evidence adduced from both sides, the trial Judge made
the following finding of fact:-
"Now from the evidence
adduced by the plaintiff and the defendant I find as a
fact that the land in dispute is different from the
Asempare land and that the land in dispute was pledged
to Okomfo Kofi Duro, Defendants' predecessor for an
amount of £4:13/- and has since been unredeemed".
Considering the traditional evidence on record : as to
the plaintiffs method of acquisition the identity of the
land together with adjoining owners' testimony
confirming the pledge to the defendant's family, the
trial Judges finding are hereby affirmed. See ODOI vs:
HAMMOND (I 971) LALA 375, and also EBO v. ABABIO (1957)
2 WALA 55 pc.
As regard the issue of
estoppel based on the conduct of the plaintiff: his
failure to mention to the defendant's family the
existence of the pledge now in dispute between the two
families (especially in 1949) when the defendants family
were redeeming their land from the plaintiffs' family,
the trial Judge had this to say: "With respect to
learned Counsel for the defendant, this argument has no
altractionsic in customary law. A notorious feature of
the customary pledge is that it is perpetually
redeemable, regardless of effluxion of time. The
principle is that once a pledge always a pledge."
Yes, I agree with the
trial judge that that is the principle and accordingly
affirm it but it appears to me that Counsel for
plaintiff is contending more than that. He says:
"Neither in his statement of claim nor in his evidence
in court did plaintiff assert that his family ever told
the successor of late Nana Kofi Duro or any member of
the said Kofi Duro's family i.e. the defendants family
about the purported pledge of the land in dispute to
defendants family".
By this contention,
Appellants Counsel is implying indirectly that there was
no such pledge at all. And even if there was such a
pledge, plaintiffs' family neglected (or omitted) to
keep it alive as required by customary law. (See
paragraph 113-114) of Ollennu's "Principles of customary
land law in Ghana" where the learned Authors says:
"Now by customary law
where a man dies, before burial, while his body lies in
state, or as soon as possible after the burial, his
creditors and debtors should introduce themselves to the
family, and declare what amount is owed them, or what
amount they owe to the deceased and creditors who are
pledgees should disclose that fact. Where a successor is
appointed, the family should in turn introduce him to
the said creditors and debtors. The performance of these
customs is among the incidents of a pledge. Very often,
however people neglect to observe the custom. But such
neglect (or omission) to perform the custom does not
alter the transaction, vesting ownership of the property
in the pledgee.
The learned Author
continued "In Kuma and Anor. Vs: Kofi & Ors. (1956) 1
WALR 128 the plaintiffs sued for the redemption of land
pledged by their family to a predecessor of the
defendant. The predecessor resisted the claim on the
ground that ground that as the pledgor and his successor
never performed the custom referred to upon the death of
the original pledges and of his successor, the
transaction must be deemed to be a sale and not a
pledge, it was held that the performance, by the
original pledgor and his successor of the custom of
keeping alive the pledge by introducing themselves to
the pledgee's successors, and vice versa, must be held
to amount to evidence of the continued vadilitysic of
the pledge but that failure to perform that custom could
not be allowed to invalidate the fact of the pledge if
its existence could be proved by some other evidence. In
the course of his judgment the learned Judge said: "I do
not think that the custom referred to is anything more
than the usual attempt of systems of law that had no
writing to endeavour to lay down methods of proof by
means of a large number of oral witnesses. I do not
think that it can be regarded as affecting the
confirming validity of a pledge".
I belive the case of
Kuma vs: Kofi (supra) fully takes care of the arguments
mounted by counsel for plaintiff. It is expected that a
pledge would be kept alive by successors of pledgees and
pledgors but non-performance or non-observance of that
custom does not and cannot invalidate the pledge.
Very significantly
pledge is defined in customary law as the delivery of
possession and custody of property real or personal by a
person to his creditor to hold and use until a debt due
is paid, and article borrowed is returned or replaced,
or an obligation is discharged. (See Ollennu page 101).
Based on the findings
of the trial Judge which findings I have no reason to
disturb, I will and hereby dismiss the appeal and affirm
the Judgment of the trial Court in terms of plaintiff's
claim as endorsed on his writ of summons.
Appeal dismissed. Costs
of 3,000,000.00 to Respondent.
OSEI
JUSTICE OF APPEAL
EAS.
I also agree.
R. OWUSU
(JUSTICE OF APPEAL)
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