Self help guide to the Law

Easy to use

Case and Subject matter index

and more

tonykaddy@yahoo.co.uk

HOME UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2005

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA.

-------------------------------------------------

CORAM: MISS AKUFFO, J.S.C. (PRESIDING)

MS. WOOD, J.S.C.

DR. TWUM, J.S.C.

ANSAH, J.S.C.

ANINAKWA, J.S.C.

CIVIL APPEAL

NO. J4/30/2004

20^TH JULY, 2005

1. OPANIN KWAME ATIA

2. SETH ASANTE .. PLAINTIFFS/RESPONDENTS/RESPONDENTS

VS.

NANA YAW BOAKYEM

SUBSTITUTED BY ERIC

O. BAIDOO .. DEFENDANT/APPELLANT/RESPONDENT

------------------------------------------------------------------------------------------------------------

J U D G E M E N T

ANINAKWA. J.S.C.: 

This appeal is by the Plaintiff/Respondent/Appellant (hereafter referred to as the plaintiff from the judgment of the Court of Appeal dated the 15th day of June 2002 reversing the Judgment of the High Court Koforidua, dated the 25th day of June 1998. The Defendant! Appellants/Respondents shall hereafter be referred to as 1^st and 2^ndDefendants.

On or about the 7th day of July 1988, the plaintiff issued the writ of summons at the Registry of the Koforidua High Court, claiming for:

a) A declaration of title to the land more particularly described the schedule hereunder.

b) ¢5,000,000.00 - General Damages for trespass

c) An order of perpetual injunction restraining the Defendants,

Their agents/servants and privies from further entry unto the Land

The schedule heretofore referred to being' ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Senchi in the Akwarnu Traditional Area and bounded on the North by the Senchi Stool Lands, on the South by the properties of E. B. Otinkorang, Daniel Tei, J. D. Awaitey, on the East by the Volta River and Abena Babla's property, and on the West by the Senchi - Atimpoku Motor Road.

The Writ of Summons IS accompanied by a statement of claim- the first paragraph of which describes plaintiff as the Son of the late Opanin K wame Amoaforo and brings this action on his own behalf and on behalf of his brothers and sisters, the children of the late Opanin Amoaforo.

The 1^st Defendant is the chief of Senchi while the 2nd Defendant is a native of Senchi.

The Defendants through their Solicitors filed their appearance and statement of Defence denying Plaintiff's claims.

The Plaintiff's case as gathered from his pleading and evidence at the trial is that his father the late Opanin K warne Amoaforo - who in his lifetime lived at Senchi in the Akwamu Traditional area, hailed from Jekiti - Akwamu aforesaid. His late father died in 1962, survived by five children including himself. Plaintiff names his said brothers and sisters as K waku Agyekum, Kwadwo Sakyi, Sakyi No.2 and Abena Adwoase.

In 1950, the plaintiff's father with the active support of his friends Opanin Dade Kofi and the 1 st Defendant, Chief/Mankrado of Senchi acquired by purchase a piece and parcel of land covering an area of70.91 acres from one Isaac Mensavi Dugbatey.

This Mensavi Dugbatey was a citizen of Ada who had lived at Senchi for .a long time and was leaving for his hometown for good and decided to sell his land. The Mankrado of Senchi - 1 st Defendant herein and Opanin Dade Kofi - a witness in this case told Opanin Amoaforo of the land. Opanin Amoaforo told them he would buy the land but he would first inform the Traditional Council for their approval. This was because as Opanin Dade Kofi put it in his supporting evidence, Mensah Dugbatey was a stranger leaving Senchi for his hometown, so Opanin Amoaforo wanted to buy the land publicly as he did not want any shoddy deal. The Akwamu State Council met and approved of the sale. Among the elders present at the State Council meeting were Opanin Dade Kofi and the ChieflMankorado of Senchi, the 1^st Defendant herein.

After the endorsement of the sale by the State Council the land was demarcated to Opanin Amoaforo who bought it for £200. Elders of Senchi including Opanin Dade Kofi and the 1^st Defendant - Chief lMankrado of Senchi, witnessed the demarcation.

Later a Deed of Conveyance was executed between Issac Mensavi Dugbatey and Opanin K wame Amoaforo to cover the sale transaction.

The Omanhene of Akwamu Traditional Area - Nana Kwafo Akoto II and some of his elders, endorsed the deed. After the endorsement by the Omanhene, same was stamped and registered at the Land Registry in Accra as Deeds Registry No. 211/1960. The Registered deed is in evidence as Exhibit ‘A’.

It is part of plaintiff’s case that after his father had purchased the land, the father planted corn and oil palm tress. He also put up buildings in addtion to what had been built by Dugbatey. He also granted portions of the land to tenants farmers on tenancy basis. Plaintiff’s father died in 1962, after working on the land for 12 years. He was succeeded by his nephew one Osei Kwaku who continued from where his late uncle had left off. He, too, cultivated corn and yam. After working on the land for sometime, Osei Kwaku called the plaintiff and his brothers and sisters and told them that after all the land belong to them and that they should perform the necessary custom for the formal handling over of the land to them. This statement was repeated by P. W. 2 Elizabeth Adwoa Amoaforo alias Adwoa Adwoase – sister of the plaintiff – in her unchallenged evidence to support the gift by Osei Kwaku. Plaintiff and his brothers and sisters duly performed custom by presenting a sheep and one bottle Schnapps as Aseda; whereby Osei Kwaku formally gifted the land to them. When plaintiff and his brothers and sisters were given possession of the land they cultivated corn and other food crops – until later when Osei Kwaku died.

After Osei Kwaku’s death 1^st Defendant took over the land, drove the children from the land and cultivated Sugar Cane on it.

1^st Defendant destroyed all the crops, the oil palm plantation and yam farms.

Some of the tenant farmers who were given portions of the land on sharing basis by plaintiff and his brothers and sisters are still on the land.

According to plaintiff, 1^st Defendant has now sold the land to 2nd Defendant who has planted mango, plantain and other crops on it and has also built a house on a part.

The plaintiff denies that the Defendants have any title to the disputed land. Plaintiff's case is strongly corroborated by firstly, the evidence of P. W. 1 - Opanin Dade Kofi, as to the acquisition of the land by plaintiff's father and secondly the evidence of P. W. 2 - sister to the plaintiff - Concerning the gift of the land to them by their father's nephew Osei K waku, and also as to plaintiff's capacity to institute the action on behalf of his brothers and sisters.

1^st Defendant denies Plaintiff's claim that their father was the owner of the land in dispute. He denies also that he had anything or at all to do with the alleged acquisition by purchase or otherwise of the land in dispute by the late Opanin Amoaforo- plaintiff's father. It is his case that he became owner of Senchi lands when he was made Chief/Mankrado of Senchi. He says he knows the land in dispute but mentions boundary owners, who are completely different from those given by the plaintiff.

He admits being.on the land in dispute to the extent that he has even given portions to tenant farmers including 2nd Defendant who have cultivated Sugar Cane and other food crops on the land. Save as he admits virtually all allegations of trespass made against him, he denies all evidence of acquisition of the land in dispute made by plaintiff and his witnesses.

1^st Defendant rejects completely the existence of any document purporting to transfer interest in the land in dispute and says that if any such document existed same would be null and void, and could not pass any interest to plaintiffs father.

2^ndDefendant does not claim personal ownership of the land, but says that he acquired where he is farming iTom the 1 st Defendant in his capacity as the Mankrado/chief of Senchi. He admits that Dugbatey sold land to Opanin K warne Amoaforo, but says that the said land was at the Kotokoli Zongo.

1^st Defendant's claim to ownership of Senchi lands, which he says is as a result of becoming the Chief/Mankrado of Senchi, cannot be free from attack. The customary Law principle has always been that in traditional or orthodox customary Law land belongs to a stool or family. The interest of the stool is not proprietary but jurisdictional.

Assuming the land in dispute in the instant case forms part of 1^st Defendant's stool land, which i~ denied, 1st Defendant's claim would be subject to the interest of the subjects and other individuals legally on the land.

There is also evidence on record that Senchi lands enjoy multiple ownership i.e. Mankrado/Chief of Senchi, the Kotropehene who is the Nifahene of Akwamu Traditional Area and the Asebu family of Senchi.

The learned High Court Judge heard and considered the evidence and gave judgment for the Plaintiff. In her judgment, the learned High Court Judge made the following findings after exhaustively evaluating the evidence, which is overwhelming.

" At the hearing of the case the Defendants and their witnesses were not impressive at all. In my opinion the stand they took was simply to deny flatly everything that the Plaintiff said. As a result they were very confused in their presentation and their counsel found it difficult to elicit simple facts or evidence he wanted to support their case. From their demeanor and the way answers were extracted from them I have no option but to disbelieve them. Weighing the evidence led by the plaintiff as against that led by Defendants. I find that of the plaintiff to be the truth. "

The learned High Court Judge then went on to deliver her judgment thus;

"On the totality of the evidence, the plaintiff has been able to establish his case that their father Opanin Amoaforo bought the land in dispute by customary sale, and the land was demarcated for him; it was later covered by a deed of conveyance and that their father took possession of it, and after their father's death the land was gifted to them by his nephew and customary successor and they also took possession of it until the Defendants disturbed them.

I accordingly enter judgment in favor of the Plaintiff for all his reliefs. I hereby make a declaration of title in favor of the plaintiff and other children of the late Opanin K wame Amoaforo in respect of the land at Senchi particularly described in the schedule in their writ of summons".

Aggrieved by that decision the Defendants appealed to the Court of Appeal. The Defendants appeal to the Court of Appeal was allowed. Their Lordships reversed the decision of the learned High Court Judge and in addition also found: - Per K. Omari Sasu JA - reading the judgment of the Court - " It is my candid view that the Respondent failed to discharge his evidential burden to prove title. He also had no capacity to sue and was therefore not entitled to a declaration of title and the other reliefs granted. "

The plaintiff is aggrieved by the judgment of the Court of Appeal and has appealed to this Court originally on two grounds thus:

a) That the court of Appeal was wrong in holding that plaintiff/Respondent/ Appellant had no capacity to give (sic) the Defendant/Appellants/Respondents.

b) The court of appeal failed to consider the submissions of the Plaintiff/ Respondent/Appellant.

Later Plaintiff filed additional ground which was argued with the leave of the Court thus:-"The Court of Appeal erred in invalidating Exhibit "A" on the ground that the Appellant failed to call the stool occupant or any of the principal members of the Stool to testify on behalf of the Appellant. "

It is pertinent at this stage to re-examine the grounds filed by the Appellants to support their appeal at the Court of Appeal in the light of the Court of Appeal's reference to the plaintiff s capacity and in fact basing their judgment on it.

At the Court of Appeal, the Defendants filed the following original grounds

Thus:

a) The judgment is against the weight of evidence.

b) The judge failed to consider the case of the Defendant. "

The Supreme Court per Acquah J.S.C. (as he then was) in the case of Koglex Ltd (No.2) v field - 2000 SCGLR at page 184 held thus: - "Briefly, the primary duty of an appellate court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by evidence on record. Where there is no such evidence, that findings ought to be set aside. However, where such findings of the trial court are based solely on the demeanor and credibility of the witnesses, then the trial court that had the opportunity of seeing and hearing the witnesses, is in a decidedly better position than the appellate court. And therefore the appellate court should be extremely slow in interfering with such findings. "

The learned Judge quoted with approval the observations of Ollennu JA in this regard in the case of Kyiafi v Wono (1967) GLR 463 at 466 thus:- " The question of impressiveness or convincingness are products of credibility; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the Court of first instance is in decidedly better position than the appellate Court. "

In the instance case, the findings of the Learned High Court Judge are based of facts, demeanor and credibility; and it seems to me that their Lordships at the Court of Appeal are guilty of the caution imposed on them. For in reserving the decision of the learned High Court Judge, Their Lordship were obliged to satisfy themselves that the findings are clearly unsupported by the evidence on record or that the reasons in support of the findings are unsatisfactory.

This, however, cannot be the case in the instant case, for the trial Judge painstakingly reviewed the evidence and supported every finding she made.

I cannot, respectfully agree with their Lordships attack on Exhibit A. In their judgment, Their Lordships state " The property was said to be Senchi stool property before it came to the possession of Dugbatey yet no stool occupant of Senchi signed Exhibit A. The question then is who gave or "sold" the land to Dugbatey before he came to sell it to late Amoaforo.? The record does not provide an answer. The 1st Appellant is said to have witnessed the alleged sale of the disputed property to Amoaforo but he denies this and an examination of Exhibit A shows that 1st Appellant had nothing to do with the transaction. " The answer to this attack is contained in one of the findings of the trial judge thus;- " I find as a fact that Exhibit "A" an indenture in writing confirming the said customary sale made in 1950 between the same parties. The fact that the 1^st Defendant as Mankrado of Senchi did not sign the indenture, does not invalidate the deed, as the land was not his to give out but Dugbatey's. Even from P.W.1's evidence, which was not challenged, Dugbatey's land is part of the stool land of the Nifahene. Indeed as pointed out by Counsel for the Defendants in his address the Nifahene applied to join this action as Co-Defendant claiming the land to be part of Nifa Stool land.

The Nifahene however did not pursue the matter for reasons best known to

him alone. P.W.1 in his evidence said the Nifahene did not sign the indenture, as the Nifa stool was vacant then. In any case the endorsement of , the indenture Exhibit "A" by the overall landlord of Akwamu lands, Nana K wafo Akoto the Omanhene of Akwamu and witnessed by Bamuhene and the State Secretary is sufficient evidence that the sale of Senchi land by a stranger was done with the consent and concurrence of the Akwamu State Counsel. "

In my respectful view, the indenture Exhibit "A" satisfies the provisions of Sec.25 (i) of the Evidence Decree, 1975 (NRCD 323) which states - "Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the successors in interest."

Finally, the original ground (a)

"That the Court of Appeal was wrong in holding that the Plaintiff/Respondent/Appellant had no capacity to sure (sic) the Defendant/ Appellant/Respondents. "

In their judgment, their Lordships of the Court of Appeal per Omari Sasu J.A. states thus;- '" The Appellants contend that even if late Amoaforo had bought the land (which is denied) on his death intestate the land would become the property of Amoaforo's family at Jakiti and thus the customary successor had no right of his own to gift the land to Respondent and his brothers and sisters, without the consent of Amoaforo's family and his elders (emphasis mine) "His Lordship goes on to state.

"Since on the death intestate of late Amoaforo his family had appointed his nephew Osei as Customary Successor, the land in dispute if it belonged to late Amoaforo had become his family property. The Head and principal members must have approved of the gift and the Acceptance must have been followed by " Aseda " which should have been given to the family publicly and not to Osei privately. " His Lordship supports this statement of the Customary Law with a host of authorities.

In his opinion in support of the judgment of the Court, Amonoo-Monney JA ;- quoting from the statement of case filed by the appellants at the Court of Appeal has this to say ;- " I will refer to only one additional ground namely, that" The learned Judge erred in law by her finding for the Plaintiff that a customary gift inter vivos of the over 70 (Seventy) acres disputed land was proved to have passed title to plaintiff and his siblings when the only evidence adduced before the Court was that the said gift inter vivos of the self-acquired property of an intestate deceased member of matrilineal family was made to plaintiff and his siblings (the deceased's children) solely by the Customary Successor. all by himself without any publicity whatsoever and more importantly. without the knowledge. consent. and involvement and concurrence of the Abusuapayin (Head~ Family) AND/or the other members of that matrilineal lineage (emphasis mine) supposed to have been directly and adversely affected by the purported transfer and alienation of the 70-acre land to the children (ie the plaintiff and his siblings) who were not members of the matrilineal family."

His Lordship was prepared to dismiss and / or disallow almost all the additional grounds of appeal and certainly the one referred to above for sinning against rule 8 (5) of the Court of Appeal Rules (C.I. 19) whish states that" The grounds of appeal shall be set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or. narrative and shall be numbered consecutively" All the same His Lordship proceeds to consider his additional ground and states thus; - "The Plaintiff/Respondent's father, Opanin K warne Amoaforo, is said to have died in 1962 and there is no evidence that his customary successor K waku Osei, was also Head of Opanin K warne Amoaforo' s family. Whether customary successor or even as Head of family, Opanin Amoaforo's self-acquired property on his death intestate did not devolve on his K waku Osei. Therefore even assuming, once again, that Opanin Amoaforo's title was valid, Kwaku Osei did not acquire any title to the prpperty which personally or by himself, he could effectively, validly, and lawfully transfer to anybody, be he even a son of the deceased.

The late Amoaforo, by the evidence, hailed from Jakiti and if his nephew was his customary successor then he belonged to the matrilineal family". Based these reasons His Lordship agreed that the appeal be allowed. There is certainly no reason to challenge their Lordships statement of the customary Law, but what cannot be the same is that, with the greatest respect, these pieces of evidence as stated by their Lordships are not borne out of the evidence.

What is in evidence is the unchallenged evidence of Plaintiff and his witness P.W. 2 The Plaintiff in his evidence states;- "Kwaku Osei succeeded my father. He was my father's nephew. ---------------------------------------------------------------------

-----------------------------------------------------------------------------------------------------------

During K waku Osei' s lifetime he called us the children and gifted the land to us”.

Plaintiff s evidence is corroborated by a more elaborate evidence of his sister P.W. 2 thus;

" My father died in 1962. He was succeeded by Opanin K waku Osei who also planted palm trees and other food crops on the land. Opanin Kwaku Osei called us and told us that the land was for us, so we should perform the necessary custom for him to give the land to us formally. So we bought a sheep and a bottle of Schnapps and presented to him and he formally gave the land to us.

Opanin Osei called me and my brothers and sisters and made the gift to us. After the gift, we offered Aseda "

These pieces of evidence are not challenged, and what is admitted requires no proof.

Again there is no evidence on record that since the gift was made there has ever been any objection raised by any member of the late Opanin K waku Amoaforo's family.

When P. W. 2. stated that the land was formally handed over to them, in my view, the only logical inference that could be made was that the gift had been customarily made.

The challenge to Plaintiff s capacity does not end there. It is also a challenge to the status of the land in dispute. It, therefore, assumes an issue of mixed fact and law, which required to be pleaded, but this was not done. And as stated by Counsel for Plaintiff in his Statement of Case supporting the Appeal - " It is significant to note that neither in the pleadings nor the evidence in the Court below was the question of Appellant's capacity to sue raised except on Appeal in the Court of Appeal. "

Rule 8 (8) of C. I. 19 Court of Appeal Rules 1997 permits the Court in deciding the appeal not to confme itself to the grounds set out by the appellant but in so doing the court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting on that ground. The Plaintiff contends that he was not given the benefit of this rule.

Finally, counsel for plaintiff submits in his statement of case thus;

" It is also submitted that the issue of capacity would have been more meaningful if the issue had perhaps been raised by the family members of the late Opanin K waku Amoaforo (sic) but not total strangers who are not aware of the arrangements within the family ~

In sum it is submitted that the issue of capacity of the appellant to sue is ill -found." (Sic) This is a submission 1 fully endorse, and on the matters aforesaid the appeal should be allowed. Judgment of the Appeal Court is hereby set aside. The Judgment of the trial High Court should be restored.

ANINAKW AH J. S. C.

'IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA

1. NANA YAW BOAKYEM

SUBSTITUTED BY ERIC O. BAAIDOO DEFENDANT/APPELANT/RES.

2. OPANYIN KWAME ATIA

SETH ASANTE PLAINTIFF/RES./APPELLANT

JUDGEMENT

ANINAKWA. J.S.C.:

This appeal is by the PlaintifflRespondent!Appellant (hereafter referred to as the plaintiff from the judgment of the Court of Appeal dated the 15th day of June 2002 reversing the Judgment of the High Court Koforidua, dated the 25th day of June 1998. The Defendant! AppellantslRespondents shall hereafter be referred to as 1 st and 2nd Defendants.

On or a~out the 7th day of July 1988, the plaintiff issued the writ of summons at the Registry of the Koforidua High Court, claiming for:

A declaration of title to the land more particularly described the schedule hereunder.

;:5,000,000.00 - General Damages for trespass

An order of perpetual injunction restraining the Defendants,

- ---

Their agents/ servants and privies from further entry unto the

Land.

The schedule heretofore referred to being' ALL THAT PIECE OR

PARCEL OF LAND situate lying and being at Senchi in the Akwarnu Traditional Area and bounded on the North by the Senchi Stool Lands, on the South by the properties of E. B. Otinkorang, Daniel Tei, J. D. Awaitey, on the East by the Volta River and Abena Babla's property, and on the West by the Senchi - Atimpoku Motor Road.

"';

{

.',"

The 1 st Defendant is the chief of Senchi while the 2nd Defendant is a native of Senchi.

The Defendants through their Solicitors filed their appearance and statement of Defence denying Plaintiff's claims.

Kwadwo Sakyi, Sakyi No.2 and Abena Adwoase.

In 1950, the plaintiff's father with the active support of his friends Opanin Dade Kofi and the 1 st Defendant, Chief/Mankrado of Senchi acquired by

purchase a piece and parcel of land covering an area of70.91 acres from one Isaac Mensavi Dugbatey.

Council meeting were Opanin Dade Kofi and the ChieflMankorado of Senchi, the 1 st Defendant herein.

" {

After the endorsement of the sale by the State Council the land was demarcated to Opanin Amoaforo who bought it for £200. Elders of Senchi

including Opanin Dade Kofi and the 1 st Defendant - Chief lMankrado of Senchi, witnessed the demarcation.

Later a Deed of Conveyance was executed between Issac Mensavi Dugbatey and Opanin K wame Amoaforo to cover the sale transaction.

According to plaintiff, 1 st Defendant has now sold the land to 2nd Defendant who has planted mango, plantain and other crops on it and has also built a house on a part.

The plaintiff denies that the Defendants have any title to the disputed land. Plaintiff's case is strongly corroborated by firstly, the evidence of P. W.

1 - Opanin Dade Kofi, as to the acquisition of the land by plaintiff's father and secondly the evidence of P. W. 2 - sister to the plaintiff - Concerning the gift of the land to them by their father's nephew Osei K waku, and also as to plaintiff's capacity to institute the action on behalf of his brothers and

,"',' '"'

sisters.

1 st Defendant denies Plaintiff's claim that their father was the owner of the land in dispute. He denies also that he had anything or at all to do with the

alleged acquisition by purchase or otherwise of the land in dispute by the late Opanin Amoaforo- plaintiff's father. It is his case that he became owner of Senchi lands when he was made Chief/Mankrado of Senchi. He says he knows the land in dispute but mentions boundary owners, who are completely different from those given by the plaintiff.

1 st Defendant rejects completely the existence of any document purporting to transfer interest in the land in dispute and says that if any such document existed same would be null and void, and could not pass any interest to

plaintiffs father.

2nd Defendant does not claim personal ownership of the land, but says that he acquired where he is farming iTom the 1 st Defendant in his capacity as the Mankrado/chief of Senchi. He admits that Dugbatey sold land to Opanin K warne Amoaforo, but says that the said land was at the Kotokoli Zongo.

.~ .~

1 st Defendant's claim to ownership of Senchi lands, which he says is as a result of becoming the Chief/Mankrado of Senchi, cannot be iTee iTom

attack. The customary Law principle has always been that in traditional or orthodox customary Law land belongs to a stool or family. The interest of the stool is not proprietary but jurisdictional.

Assuming the land in dispute in the instant case forms part of 1 st Defendant's stool land, which i~ denied, 1st Defendant's claim would be subject to the interest of the subjects and other individuals legally on the land.

The learned High Court Judge heard and considered the evidence and gave judgment for the Plaintiff. In her judgment, the learned High Court Judge

made the following fmdings after exhaustively evaluating the evidence, which is overwhelming.

" At the hearing of the case the Defendants and their witnesses were

not impressive at all. In my opinion the stand they took was simply to deny flatly everything that the Plaintiff said. As a result they were very confused in their presentation and their counsel found it difficult to elicit

simple facts or evidence he wanted to support their case. From their demeanor and the way answers were extracted from them I have no option but to disbelieve them. Weighing the evidence led by the plaintiff as against that led by Defendants. I find that of the plaintiff to be the truth. "

The learned High Court Judge then went on to deliver her judgment thus;

of it, and after their father's death the land was gifted to them by his nephew and customary successor and they also took possession of it until

the Defendants disturbed them.

ifj/"

... J

The plaintiff is aggrieved by the judgment of the Court of Appeal and has appealed to this Court originally on two grounds thus:

a) That the court of Appeal was wrong in holding that plaintifflRespondent! Appellant had no capacity to give (sic) the Defendant!appellants/Respondents.

The court of appeal failed to consider the submissions of the Plaintiff/ Respondent! Appellant.

Later Plaintiff filed additional ground which was argued with the leave of the Court thus:-"The Court of Appeal erred in invalidating

Exhibit "A" on the ground that the Appellant failed to call the stool occupant or any of the principal members of the Stool to testify on behalf of the Appellant. "

judgment on it.

At the Court of Appeal, the Defendants filed the following original grounds

thus:

a) b)

The judgment is against the weight of evidence.

The judge failed to consider the case of the Defendant. "

The Supreme Court per Acquah J.S.C. (as he then was) in the case ofKoglex Ltd (No.2) v field - 2000 SCGLR at page 184 held thus: - "Briefly, the

.,. :j

primary duty of an appellate court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself

that the said findings are supported by evidence on record. Where there is no such evidence, that findings ought to be set aside. However, where such findings of the trial court are based solely on the demeanor and

credibility of the witnesses, then the trial court that had the opportunity of seeing and hearing the witnesses, is in a decidedly better position than the

appellate court. And therefore the appellate court should be extremely slow in interfering with such findings. "

credibility; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the Court of first instance is in decidedly better position than the appellate Court. "

In the instance case, the fmdings of the Learned High Court Judge are based of facts, demeanor and credibility; and it seems to me that their Lordships at

the Court of Appeal are guilty of the caution imposed on them. F or in.

reserving the decision of the learned High Court Judge, Their Lordship were obliged to satisfy themselves that the fmdings are clearly unsupported by the evidence on record or that the reasons in support of the fmdings are unsatisfactory.

This, however, cannot be the case in the instant case, for the trial Judge painstakingly reviewed the evidence and supported every fmding she made.

.~ .,'

I cannot, respectfully agree with their Lordships attack on Exhibit A. In

their judgment, Their Lordships state " The property was said to be Senchi

stool property before it came to the possession of Dugbatey yet no stool occupant of Senchi signed Exhibit A. The question then is who gave or

"sold" the land to Dugbatey before he came to sell it to late Amoaforo.? The record does not provide an answer. The 1st Appellant is said to have

witnessed the alleged sale of the disputed property to Amoaforo but he denies this and an examination of Exhibit A shows that 1st Appellant had nothing to do with the transaction. " The answer to this attack is contained

in one of the findings of the trial judge thUS;- " I find as a fact that Exhibit "A" an indenture in writing confirming the said customary sale made in

1950 between the same parties. The fact that the 1 st Defendant as Mankrado of Senchi did not sign the indenture, does not invalidate the deed, as the land was not his to give out but Dugbatey's. Even from P.W.1's evidence, which was not challenged, Dugbatey's land is part of the stool land of the Nifahene. Indeed as pointed out by Counsel for the Defendants in his address the Nifahene applied to join this action as Co-Defendant claiming the land to be part ofNifa Stool land.

The Nifahene however did not pursue the matter for reasons best known to

him alone.

P.W.1 in his evidence said the Nifahene did not sign the

indenture, as the Nifa stool was vacant then. In any case the endorsement of

, the indenture Exhibit "A" by the overall landlord of Akwamu lands, Nana

K wafo Akoto the Omanhene of Akwamu and witnessed by Bamuhene and

the State Secretary is sufficient evidence that the sale of Senchi land by a stranger was done with the consent and concurrence of the Akwamu State

.",

Counsel. "

In my respectful view, the indenture Exhibit "A" satisfies the provisions of Sec.25 (i) of the Evidence Decree, 1975 (NRCD 323) which states - "Except

as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the

successors in interest."

Finally, the original ground (a)

" That the Court of Appeal was wrong in holding that the Plaintiffl Respondent/Appellant had no capacity to sure (sic) the Defendant/ Appellant/Respondents. "

brothers and sisters, without the consent of Amoaforo's family and his elders (emphasis mine) "His Lordship goes on to state

In his opinion in support of the judgment of the Court, Amonoo-Monney JA ;- quoting from the statement of case filed by the appellants at the Court of

Appeal has this to say ;- " I will refer to only one additional ground namely, that" The learned Judge erred in law by her finding for the Plaintiff that a customary gift inter vivos of the over 70 (Seventy) acres disputed land was proved to have passed title to plaintiff and his siblings when the only evidence adduced before the Court was that the said gift inter vivos of the self-acquired property of an intestate deceased member of matrilineal family was made to plaintiff and his siblings (the deceased's children) solely by the Customary Successor. all by himself without any publicity whatsoever and more importantly. without the knowledge. consent. and involvement and concurrence of the Abusuapayin (Head~ Family) AND/or the other members of that matrilineal lineage (emphasis mine) supposed to have been

directly and adversely affected by the purported transfer and alienation of

the 70-acre land to the children (ie the plaintiff and his siblings) who were not members of the matrilineal family."

heads the grounds upon which the appellant intends to rely at the hearing of

the appeal without any argument or. narrative and shall be numbered consecutively" All the same His Lordship proceeds to consider his additional ground and states thus; - "The Plaintiff/Respondent's father, Opanin K warne Amoaforo, is said to have died in 1962 and there is no

.. .~

evidence that his customary successor K waku Osei, was also Head of Opanin K warne Amoaforo' s family. Whether customary successor or even as Head of family, Opanin Amoaforo's self-acquired property on his death

intestate did not devolve on his K waku Osei. Therefore even assuming, once again, that Opanin Amoaforo's title was valid, Kwaku Osei did not acqure any title to the prpperty which personally or by himself, he could effectively, validly, and lawfully transfer to anybody, be he even a son of the

deceased.

The late Amoaforo, by the evidence, hailed from Jakiti and if his nephew was his customary successor then he belonged to the matrilineal family".

Based these reasons His Lordship agreed that the appeal be allowed. There is certainly no reason to challenge their Lordships statement of the customary Law, but what cannot be the same is that, with the greatest

respect, these pieces of evidence as stated by their Lordships are not borne out of the evidence.

.~ :~

------------------------------------------------------------------------------------------

During K waku Osei' s lifetime he called us the children and gifted the land to

us. "

Plaintiff s evidence is corroborated by a more elaborate evidence of his sister P.W. 2 thus;

Opanin Osei called me and my brothers and sisters and made the gift to us. After the gift, we offered Aseda "

These pieces of evidence are not challenged, and what is admitted requires no proof.

Again there is no evidence on record that since the gift was made there has ever been any objection raised by any member of the late Opanin K waku Amoaforo's family.

When P. W. 2. stated that the land was formally handed over to them, in my view, the only logical inference that could be made was that the gift had been customarily made.

.~ J

Finally, counsel for plaintiff submits in his statement of case thus;

" It is also submitted that the issue of capacity would have been more

meaningful if the issue had perhaps been raised by the family members of

the late Opanin K waku Amoaforo (sic) but not total strangers who are not aware of the arrangements within the family ~

In sum it is submitted that the issue of capacity of the appellant to sue is illfound." (Sic) This is a submission 1 fully endorse, and on the matters aforesaid the appeal should be allowed. Judgment of the Appeal Court is hereby set aside. The Judgment of the trial High Court should be restored.

R. T. ANINAKWA