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JUDGMENT
OMARI-SASU, J.A:
The
Plaintiff-Respondent who will henceforth be referred to
simply as the Respondent sued the Defendants-Appellants
who will henceforth be referred to as the Appellants in
the High Court, Koforidua which was presided over by
Mrs. Sophia Adinyira J. (as she then was) for
(a) Declaration of
title to land at Senchi in the Eastern Region of the
Republic of Ghana measuring about 70.91 acres
(b) ¢3million general
damages for trespass and
(c) perpetual
injunction to restrain the Appellants from further entry
onto the land in dispute.
At the end of the trial
the learned trial Judge on 25th June 1998 entered
Judgment for the Respondent and gave him title to the
said land.
The Respondent was
awarded damages for trespass by the Appellants and the
Appellants were restrained from further entry onto the
land.
They appealed against
the said judgment and grounds of Appeal and written
submissions have been filed on behalf of the litigants
herein by their respective Counsel. For the purpose of
this judgment I shall deal with the original ground
alleging that the Judgment is against the weight of
evidence and the second ground which alleges that the
case of the Defendants was not adequately considered but
before then I shall state the brief facts of the case
which are not mainly in dispute.
The Respondent is son
of one Kwame Amoaforo (deceased) who hailed from Jakiti
in Akwamu Traditional Area of the Eastern Region and he
says his late father in the year 1950 bought the land in
dispute for £200 from one Isaac Mensavi Dugbatey, an
Ada-man who had lived at Senchi but had decided to go to
his home town for good.
The sale was evidenced
in writing in 1960 and was consented to by late Nana
Kwafo Akoto, the Omanhene of Akwamu Traditional Area and
witnessed by two of his elders.
The late Kwame Amoaforo
was succeeded by his nephew Kwaku Osei who is said to
have gifted the land in dispute to Respondent and his
brothers and sisters.
The Respondent had said
in the court below that the Appellant had been engaging
in acts of harassment against the Respondent and had
sold out portions of the disputed land to others.
The 1st Appellant on
his part claimed in the court below that the property in
dispute formed part of his stool property and admitted
entering upon it and granting portions to others
including the 2nd Defendant but he says he performed
these acts in his capacity as Mankrado of
Senchi.
From the processes
filed the main contention of the Appellants is that the
Respondent had no capacity to sue and also he was not
entitled to a declaration of title and the other reliefs
he claimed.
On capacity:
Respondent’s case is that the property was gifted to
him, his brothers and sisters by the customary successor
of his late father called Osei Kwaku and they gave this
Osei Kwaku customary “aseda” in the shape of a live ram
and drinks.
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 the head of Amoaforo’s family and his
elders. In our case there was no such consent thus the
Respondent had no capacity to sue for declaration of
title and the other reliefs.
I accept the contention
by the Appellants on this issues as a correct statement
of the customary law concerning gifts inter vivos of
land. The Donor must own the property he intends to
gift.
Since on the death
intestate of late Mr. 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.
See:
1. Sarbah Customary
Laws 3rd Edn page 80-82
2. Danquah – Akan
Laws and Customs page 219
3.
Bentsi-Enchil—Ghana Land Law pages 360-370
4. Ollenu—Customary
Land Law 2nd Edn pages 120-121
5. Da. Rocha &
Lodoh—Ghana Land Law pages 238-240
6. Woodman Ghana Land
Law pages 358-361
7. ASARE v. Kumorji
(S.C) Supreme Court of Ghana Law Report [2000] 298 at
302.
From the Record of
proceedings, it is clear that no evidence was led to
show that the Amoaforo family who allegedly owned the
property in dispute ever consented to the making of the
alleged gift. That alleged gift therefore fails and I
find that the Respondent herein had no capacity to sue
the Appellants. This would have disposed of the case but
I will comment briefly on the ground that the judgment
is against the weight of evidence adduced.
In the court below the
Respondent was granted title to the disputed land for
the learned trial judge, thought with the Omanhene of
Akwamu Traditional Area consenting to the “sale” between
Dugbatey and Amoaforo everything was right and proper.
A close look at Exh A
(the title deed which the Respondent tendered in the
Court below) shows that nowhere in the document is any
mention made of Dugbatey’s root of title.
The property was said
to be senchi stool property before it came to the
possession of Dugbatey yet no stool occupant of Senchi
signed Exh. 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 Exh. A shows that 1st Appellant had
nothing to do with the transaction.
The record rather shows
that from the answers PW1 gave in cross-examination the
1st Appellant had sold portion of the land to others.
Thus the Respondent should have called some of the
boundary or adjourning owners e.g Otinkorang and Amartey
who are mentioned in Exh A to testify.
Strangely the
Respondent on whose shoulders lay the burden of proving
that he was entitled to a declaration of title failed to
call the occupant of stool that owned the land in
dispute or any of the principal member of the said stool
who were Dugbatey’s vendor(s) to testify.
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.
See:
1. Ogbame – Tetteh v.
Ogbame- Tetteh [1993-94] 1 GLR 353 (Holding 4) and
2. Odametey v. Clocuh
[1989-90] 1 GLR 14 (HOLDING 1)
The appeal should
accordingly be allowed and the judgment of the court
below set aside.
K. OMARI-SASU
JUSTICE OF APPEAL
AMONOO-MONNEY, JA:
I agree that the appeal
be allowed for the reasons given by my brother
Omari-Sasu, JA. I will, however, add some words of my
own in respect of a related aspect of the case.
2. By a writ of summons
filed on 7th July 1988 at the Koforidua High Court, the
Plaintiff/Respondent commenced an action “for himself
and on behalf of the other children of late Opanin Kwame
Amoaforo” against the Defendants/Appellants claiming:
“(a) A declaration of
title to the land more particularly described in 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”
3. In the accompanying
Statement of Claim, the Plaintiff averred that
“(3) In his lifetime
Plaintiff’s father in 1950 acquired the land at Senchi
…… from one Isaac Mensavi Dugbatey.
“(4) The said purchase
was later evidenced in writing and registered with the
Lands Registry as No. 2115/1960.
“(5) Plaintiff’s
father was in occupation of this land until his death in
1962.
“(6) Upon his death,
the property was succeeded to by Plaintiff’s father’s
nephew who in turn gifted same to the Plaintiff and his
other brothers and sisters”. In their Statement of
Defence filed on 14th November 1988 the
Defendants/Appellants also averred
that:
“(4) The Defendants
vehemently deny paragraph 3 of the claim and say that
the 1st Defendant took possession of a larger tract of
land including the land which is the subject matter of
dispute in 1942 when he became Mankrado of Senchi
“(5) Further to
paragraph 4 above the 1st Defendant says that in 1943
one Ocansey sued him in respect of the said land and
judgment was given in favour of the 1st Defendant who
has since been in possession. The one by name Isaac
Mensah Dugbatey has never owned any portion of the 1st
Defendant’s land.
“(8) Paragraph 6 is
vehemently denied and the Defendants say that the land
in dispute has never been transferred to the Plaintiff’s
father nor the father’s nephew. Any purported gift
therefore is of no legal consequence, is null and void
and cannot pass any interest or title to the land.” The
Defendants also denied that the Plaintiff’s father and
the Plaintiff and his brothers and sisters, had never
been in occupation or possession of the land .
4. At the end of the
trial the Court below gave judgment for the Plaintiff.
It is from this decision that the appellants have
appealed to this Court on the original grounds that :—
“(a) The judgment is
against the weight of evidence
(b) The judge failed
to consider the case of the Defendant.” On 14th
September 2001 Counsel for the appellants filed an
application for leave to amend the grounds of appeal by
adding further grounds of appeal. On 9th May, 2002 this
Court granted the application and directed Counsel for
the respondent to file a supplementary Statement of Case
in response to the additional grounds of appeal. 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 a 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, involvement
and concurrence of the Abusuapanyin (Head of Family)
AND/OR the other members of that matrilineal lineage
supposed to have been directly and adversely affected by
the purported transfer and alienation of the 70-acre
land to the children (i.e. the plaintiff and his
siblings) who were not members of the matrilineal
family”. It appears almost all the additional grounds of
appeal and certainly the one I have just referred to sin
against rule 8(5) of the Court of Appeal Rules, 1997
(C.I. 19) which states that “The grounds of appeal shall
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” (emphasis supplied).
5. Counsel for the
respondent’s answer to this ground of appeal is in these
terms “There is also a submission made at page 27 of
the appellants’ Statement of Case that the land which
Amoaforo purchased from Dugbatey became family land upon
the death of Amoaforo so Kwaku Osei had no authority to
give same to Amoaforo’s children without the knowledge
and consent of Amoaforo’s family and without customary
publicity given to the gift. The submission borders on
absurdity to say the least. There is no shred of
evidence in the Record that Amoaforo purchased the land
with assistance from any member of his family, neither
did he purchase it with proceeds from his family’s
property. Throughout the proceeding the fact that
Amoaforo bought the land for himself and it thus became
a self-acquired property is not lost even on a cursory
reader. Being a self-acquired property, Amoaforo was
entitled to deal with it in anyway he chose……. There
was no need on the part of plaintiff to call a witness
to corroborate the evidence of plaintiff and PW2 on the
gift because the appellants did not challenge the
statements by the plaintiff and PW2 on the gift”. It
must be noted that the interests of PW2, Elizabeth
Amoaforo and Adwoa Adwaase, elder sister of the
Plaintiff/Respondent and the Plaintiff/Respondent
himself in the subject matter of this case, are the
same. In fact by the writ the Plaintiff sued “for
himself and on behalf of the other children of late
Opanin Kwame Amoaforo”. She is indeed also a plaintiff
and cannot, stricto sensu, be regarded as a
disinterested witness for the cause of her brother. She
cannot therefore be properly said to “corroborate” the
evidence given by her designated Plaintiff/Respondent
brother.
6. The
Plaintiff/Respondent was at pains to establish the title
of his late father to the property in dispute. The
question may be asked, why didn’t he rather concentrate
on establishing the title to the property of his alleged
GRANTOR, Kwaku Osei, his late father’s nephew who was
his father’s customary successor, even assuming that his
father’s title was not defective? There is no evidence
that Plaintiff/Respondent’s father in his lifetime made
any testamentary disposition or devise of the property
in dispute or that he made any inter vivos disposition
of it. By customary law a person’s self-acquired
property prior to the enactment of the Intestate
Succession Law, 1985 (PNDCL 111) on 14th June, 1985
became family property upon his death intestate. See
AMARFIO V. AYORKOR 14 WACA 554, MILLS V. ADDY [1958] 3
WALR 357, and KWAKYE V TUBA AND OTHERS [1961] GLR (Part
II) 535. The Plaintiff/Respondent’s father, Opanin Kwame
Amoaforo, is said to have died in 1962 and there is no
evidence that his customary successor, Kwaku Osei, was
also Head of Opanin Kwame Amoaforo’s family. Whether as
customary successor or even as Head of Family, Opanin
Amoaforo’s self-acquired property on his death intestate
did not devolve on Kwaku Osei. Therefore even assuming,
once again, that Opanin Amoaforo’s title was valid,
Kwaku Osei did not acquire any title to the property
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.
7. For these reasons
as well, I agree that the appeal be allowed.
J. C. AMONOO-MONNEY
JUSTICE OF APPEAL
OWUSU-ANSAH, JA:
I agree.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
COUNSEL
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