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Aidoo v. Adjei and Others
[1976] 1 GLR 431.
Court of Appeal, Accra
24 February, 1976

APPEAL from a circuit court judgment in an action for inter alia declaration of title to land. The facts are fully set out in the judgment of Apaloo J.A.

APALOO J.A.
The dispute in this case relates to a piece of land at Jukwa measuring 200 ft. by 150 ft. and abutting the Cape Coast-Jukwa road. It contains what was described in the site plan as a `` residence'' and two zinc sheds. By a conveyance dated 12 October 1960, and made between the Central Property Co., Ltd. Then in liquidation and acting by a Mr. Frederick William Wilson therein described as the liquidator and J. J. Aidoo, the appellant, this plot together with the structures on it were conveyed to the latter ``for an estate in possession free from incumbrances Unto and To the use of the Purchaser his heirs, successors according to native law personal representatives and assigns for ever.'' The evidence shows that before the sale to the appellant, his vendors and their predecessors- in-title have been on the land for nearly half a century. The time was variously put at 1911 and 1912. The structures on the land were erected by the vendors.

Some time in November 1972, the first respondent entered onto a portion of the land and erected on it a ``chop bar.'' When the appellant took issue with him for doing this, he said he was authorized to do this by the second respondent. He is the Omanhene of the Denkyira Traditional Area. The appellant did not accept that the second respondent was entitled to permit the entry on to the land which he claimed as his own. He therefore sued the first respondent and sought against him declaration of title and damages for trespass.

As was to be expected, the Omanhene of Denkyira acting jointly with the Jukwamuhene sought to join the action. They claimed that the first respondent's entry on the land and his erection of the structure complained of, were done with their prior consent. They laid title in the land in themselves and disputed the appellant's right to the reliefs which he sought against the first respondent. Their application was acceded to. On being joined, they filed a joint defence in which they again asserted their ownership. They could not deny that the appellant's vendors were at one time in possession of the land and being an alien company could only have come onto the land by reason of some agreement with the owners. The second and third respondents pleaded that:

``The co-defendants further aver that there was no formal agreement entered into between the said Central Property Co., Ltd and the co-defendant's but it was mere grant made to the said company with the understanding that whenever the company ceased to function the land would revert to the landlords.''

These respondents then disclaimed any knowledge of sale to the appellant and claimed that such sale, if made, was done ``clandestinely without the knowledge and consent of the principal owners.'' They accordingly denied its validity.

The appellant's title having been disputed, he came under an obligation to prove it. He found no difficulty in proving the sale between himself and his vendors. He produced the deed of conveyance. This was regularly executed and duly registered in the Deeds Registry. But it was not enough for him to prove a sale between himself and the Central Property Co., Ltd. He had to show that his vendors were entitled to pass title in the plot to him.

To discharge this burden, he called the properties manager of the U.A.C., a Mr. G. M. Mensah. The appellant's vendors are said to be a subsidiary of the U.A.C. He admitted the sale to the appellant. He also conceded that the land at one belonged to the stool of Jukwa. But he said that stool made a transfer of the freehold interest to a company called Millers about 1911. The U.A.C. took over in 1929 and have enjoyed undisturbed possession until they disposed of it to the appellant in 1960.

When Mr. Mensah was asked to describe the nature of the transaction between their predecessors, i.e. Millers and the Jukwa stool, he answered, ``It was a freehold transfer.'' When he was asked how he came by this knowledge, he said, ``My records say so.'' The court itself then asked the question, ``What records are they?'' To this the witness answered, ``There is a letter which our chief accountant wrote asking for the title deeds for the freehold property which is the subject-matter of this suit.''

The learned judge found that U.A.C. was an amalgamation of Millers and another firm called Russels. When Mr. Mensah was asked whether ``your predecessors gave any document with the land?'' He answered, ``Yes, but we cannot find the document now.'' In the context of this case, the document referred to can only mean the deed which transferred the freehold interest from the Jukwa stool to Millers. Mr. Mensah was further asked whether they informed the Jukwa stool when they were about to sell the land to the appellant. He said, ``No, we did not because we did not have to.''

Accordingly, the evidence of title led on behalf of the appellant was this: The plot in dispute was sold by the Jukwa stool to Millers by a document dated 1911. The interest conveyed was the absolute interest. Millers entered into possession of that land and erected buildings and other structures thereon and carried on business activities. In 1929 that company amalgamated with another firm and the U.A.C. was the product of that union. That latter then entered into possession of the land and was handed the document, which evidenced the transfer between the Jukwa stool and Millers. At some point of time, that document was mislaid and could not be found. U.A.C. for itself enjoyed undisturbed possession of this land and in 1960 sold it by deed to the appellant. The latter caused this deed to be stamped and registered and like his predecessors before him, remained in undisturbed possession of the land until 1972 when the respondent entered the land to give rise to this action. Neither Millers, U.A.C. nor the appellant did any act of fealty to Jukwa stool since 1911. None of them paid tribute or was asked to do anything even symbolically to acknowledge title in the Jukwa stool. In my opinion, evidence was placed before the court, which, if not sufficiently answered, entitled the appellant to a declaration of his title to the land.

But that case was not unanswered. It was answered by the Omanhene of Dankyira, Nana Boa-Amponsem III. He disclaimed any personal knowledge of the transaction but got to know of the arrangement by way of tradition when he was installed in 1955. He said his elders told him and it was this: The European company called Millers approached his predecessors and obtained permission to put up structures on the land to carry on cocoa business. Such permission was granted on payment by the company of the sum of £4 13s. and some drink. This payment was made to acknowledge the stool's ownership. This only condition attached to this permission was that ``whenever they left the land would revert to us. There was no formal agreement.''

Although the witness said the object of the original grant was the carrying on of cocoa business, the omanhene also said: ``They want it [meaning the land] to put up structures in which to sell their goods like prints, hardware, provisions, etc.'' He said he said about 1972, the first respondent prints, hardware, provision, etc. He said about 1972 the first respondent sought permission from him to make a Chop bar on part of it and he granted this permission. The court itself asked the witness why he permitted the first respondent to enter the land without revoking the license to U.A.C. To this the omanhene answered:

``The area which I gave to the defendant was bare, it had nothing on it. Since the land belonged to me and since U.A.C. was not using it, I knew it had reverted to me so I allowed the defendant to use it.''

No elder of the stool was called to support this permissible hearsay evidence. Faced with this story, the learned circuit judge (Miss Gaisie appeared to have sought some independent evidence confirmatory of the tradition. She seemed to have found it kin the recitals of the deed of conveyance executed between the appellant and U.A.C.'s subsidiary. As she put it, ``It is traditional evidence with nothing to test it with but the recitals in the deed on which the plaintiff's claim is based.'' She discounted the long possession of the appellant and his predecessors by the familiar theory that prescriptive title is unknown to customary law. Having dismissed the appellant's claim to title, she proceeded to give consideration to the claim for trespass which she rightly observed can be founded only on possession. It was ``possessory title'' that she found to have been conveyed to the appellant. But she declined to find that the invasion of the appellant's possession in the manner testified to trespass because she accepted the omanhene's traditional evidence ``that it was a term of the original agreement that whenever any part of the land became vacant, that portion vested in the licensors and they could go into possession.'' Accordingly, she held that the appellant's claim failed on both counts and she proceeded to dismiss it. It is this decision that the appellant invites us to reverse on the ground that it was against the weight of evidence.

It was urged for the appellant, that the respondent's traditional evidence was in fact unsupported and that the judge placed a wrong interpretation on the recitals and thought them corroborative of the respondent's tradition. The recitals provide that, whereas the company has been in possession of the property hereinafter described for twenty (20) years and upwards without acknowledgment of the title of any other person ...'' Of this the judge said, ``The only root of title recited was the company's possession of the land for twenty years. This confirms the co-defendant's case that the plaintiff's grantors merely had possessory rights.'' It was submitted that the judge omitted an important qualification in the recitals on the nature of the possession pleaded, namely, it was stated to be adverse since it acknowledged the title of no one. This, it was urged, was another way of saying they were owners in possession. I see the force of this submission. If at the date of the conveyance to the appellant in 1960, the U.A.C. could not lay hands on the document of title between Millers and the Jukwa stool, the only root of title that between Millers without providing particulars of it in the recitals. Counsel for the respondents frankly conceded that the judge,s interpretation of the recitals was narrow and that he was prepared to accept than on a proper construction of the recitals, the appellant,s vendors were pleading that they were owners in possession. With that concession, the support which the judge thought there was for the respondents' tradition from the appellant's own evidence, was gone and the omanhene's traditional evidence stood alone.

But it was urged for the respondents that that traditional story the tradition by his elders on his installation in 1955 and one must was probable and was not in fact challenged. Its acceptance by the judge, it was said, justified a finding for the respondents. Two issues arise for consideration on this submission, namely, was the omanhene in truth told the tradition he related in court and if so told, whether the story of the nature of the grant is a reasonable and probable one. According to the omanhene, he was told that he believed it to be true. On 11 December 1972, he instructed a firm of solicitor to write to the properties manager of U.A.C. upon learning of the sale of the plot in dispute to the appellant. His solicitors wrote inter alia:

``It has come to the notice of our clients that the said piece and parcel of land described above has been sold to one J.K. Aidoo, a former employee of the U.A.C. Ltd. By your agent servant a Mr. Frederick William Wilson of the U.A.C. Ltd. Accra.

We are therefore instructed by our clients to ascertain from you how your company acquired the said land, and also to furnish us with certified true copies of any documents on the land which were made between our clients' predecessors and the Central Property (Ghana) Ltd. A subsidiary company of the U.A.C. Ltd. To enable us advise our clients thereon.''

The omanhene, an educated man who appears to have trained in the U.S.A., was shown this letter while in the witness-box and when questioned about it said:

``I have exhibit B [meaning the letter] in my hand. I caused it to be written to the property manager of U.A.C. This was after the defendant had told me of the difficulties he had with the plaintiff.''

It is difficult to reconcile the purport of this letter with a prior knowledge by the omanhene of the nature of the grant between the Jukwa stool and Millers Co. If in truth the omanhene had been told of the transaction between the Jukwa stool and Millers in 1955, this inquiry in 1972 was pointless. He could not have been unaware that the agreement was informal and was not evidenced in writing. He could also not but have felt satisfied that the U.A.C. had committed a breach of faith by alienating the land which is ancestors had merely permitted them to stay on only for the purpose of their business. It was natural that he would feel justly indignant at this conduct on the part of the company and one would expect that he would express his dissatisfaction to them in on uncertain language. Yet he caused to be written to them a letter whose terms a person ignorant of the true nature of the agreement between his predecessor and Millers could write. That letter makes the omanhene's claim that he was told the terms by which the Jukwa stool g ranted the the land in dispute to Millers difficult to credit. The learned judge overlooked this evidence and omitted any consideration of what effect it would have on the omanhene lone traditional evidence.

That aside, one must consider the probability of the terms of the grant testified to by the omanhene from the point of view of the Jukwa stool and also the Millers Co. On the omanhene`s own theory, the plot was required by the company for it's business. It was going to buy cocoa and carry on other business clearly with a view to profit. If it was not an out and - out alienation, is it reasonable that the stool would not have contracted to be paid a period without any worthwhile quid pro quo? And it is agreed that neither Millers nor any of its successor did any act of fealty to the stool nor paid it one pesewa from 1911 to date, apart from the £4 13s. it is said to have paid in 1911. One's experience of customary dealings in land teaches one that the arrangement testified to by the omanhene is an unlikely one.

If it is improbable that the Jukwa stool would have entered into such agreement in 1911, how likely is it that the Millers Co. its part, would accept to invest money in land in which its title is so precarious? Is it reasonable that it would be content to accept only an oral grant of this land and acquiesced in a condition that if any portion of a plot, which is only 200 ft. by 150 ft. was unused, the stool was entitled to authorize entry of that plot by any one it choose? Such and arrangement ill accords with ordinary experience but that is what the judge chose to accept. As the judge put it:

``Their contention (meaning the stool's) is that it was a term of the original arrangement that whenever any part of the land became vacant, that portion vested in the licensors and they could go into possession. The plaintiff was not in a position to challenge the evidence on the grant between Millers and the co-defendants predecessors, so all that evidence went unchallenged and I accept it.''

But what can the land becoming vacant mean in the context of this arrangement? Can it mean that the whole of the 200 ft. by 150 ft. area must be build upon? If that is what it means, then that arrangement is opposed to common sense and is wholly unworthy of credit. If it means the stool could re-enter if it is abandoned, then there is no evidence that it was at any time abandoned. From 1911 to the date of the alleged trespass in 197, it had been continuously in the occupation of Millers and its successors. But the arrangement, which the judge accept, is not the condition testified to by the omanhene. According to his evidence, the land reverted to the stool only if the Millers Co. left it. If the arrangement testified to by the omanhene is true, the Millers Co. and its successors, the U.A.C. was must have regarded themselves as the grateful recipients of the stool's bounty, so to speak. If that be so, are they likely to be so ungrateful and so unresponsive to their obligations as to sell this plot which the stool allowed them to occupy on sufferance? When the properties manger of the U.A.C. was asked if the company informed the stool before alienating the plot to the appellant, he gave the answer, which only an owner can give. He said, ``we did not because we did not have to.'' In my judgment, the nature and terms of the agreement alleged to have been entered into by the omanhene between the Jukwa stool and Millers is wholly improbable and is one which no stool conscious of its ownership of land would enter into nor would any prudent man of business assent to terms relate in that evidence. I think the learned judge was a trifle uncritical in accepting that wholly unsupported and discredited evidence.

But the judge criticized U.A.C.'s predecessors for what she thought to be the inadequacy of their conduct. She said, ``Millers was British firm, and no doubt, if they obtained a freehold interest in that property, they would have taken steps to preserve it.'' Is unclear what the judge meant by preserving their interest in this context. If she meant they would have ensured that the grant was reduced into writing to put matter beyond bad faith and treacherous memory, then that was met by evidence of the property manger. He said the transaction was evidenced by a document. If preserving in this sense means ensuring it against loss, then the judge must have overlooked the evidence of Mr. Mensah. He swore that Millers handed to U.A.C. the document but that this could not be traced by the latter. It seems that the loss of the document occurred while it was with U.A.C. Counsels for the respondents argued that it was hard to believe that a document in the possession and control of a firm as adroit as U.A.C. could be mislaid. This is a fair-minded observation but one cannot lose sight of the fact that however efficient its methods, U.A.C. is a human organization whose business is carried on by human to attribute perfection to their methods. There is a saying that the best horse may stumble one day and however efficiently U.A.C. conducts its affairs, it is not improbable that its agents may occasionally slip and lose a valuable document. What is improbable, is that a British firm like Millers would wish to invest money, and agree to obtain for their business purposes, landed property on the very tenuous basis implicit in the omanhene's testimony.

The learned judge spent some effort in dilating on the customary notion that prescriptive title is unknown to it and cited legal authorities in support. But that approach seems to me to be beside the point. The appellant's case was not that his vendors acquired tile only by long possession. He produced evidence that his vendors' predecessors that is, Millers bought the land outright and both they and the U.A.C. exercised all the right of ownership, including the right of alienation. The evidence of long undisputed possession was not the foundation of their tile; it was used to buttress it. Indeed the case of Mieh v. Asubonteg (963) 2 G.L.R. 37, S.C. which the learned judge sought to distinguish was in point. It was said in that case at p. 41 that:

``A claimant to title to land may base hid claim entirely on the fact that he has been in uninterrupted possession of the land for a certain number of years, and without proving his source of title, claim to be entitled to be declared and owner of the land. This is prescription or usucapio as it is termed in Roman law, and the emerging title is described as a prescriptive title. There is of course no such title known to the law of Ghana. On the other hand a claimant to title to land gives evidence of his source of title and relies on his long undisturbed possession as further evidence of his title.''

I think this is precisely what the appellant had done. It is wrong to think he relied on anything like prescriptive title. The judge also reasoned that since U.A.C itself had only what she conceived to be possessory title, the operative part of the deed, which conveyed to the appellant ``the property herein described in such estate and interest as the company has therein'' could only have conveyed possessory title. But it has already been conceded for the respondents that the construction put on the recitals by the judge was faulty and that the title recited therein was ownership in possession. I think the judge's conclusion on this score was also at fault.

In any case, it is difficult to conceive how a deed which conveys ``an estate in possession free from incumbrances Unto and To the use of [the appellant] his heirs, successors ... personal representatives and assign for ever'' can be said to convey the very permissive title which the judge, accepting the omanhene's evidence, found. As a purely evidential question, a person in possession of land is presumed to be the absolute owner. That is why any declaration which such person makes that he has a lesser interest is construed as an admission against him or a declaration against interest receivable as an exception to the hearsay rule if he is dead. On the caption dealing with declarations against interest Phipson wrote:

``And as in the absence of other proof mere possession implies seisin in fee, any declaration of an occupier tending to cut down charge or fetter his presumably absolute interest will be receivable under this head.''

(See Phipson on Evidence (8th ed.), p. 274) Far from making any admissions against interest, the appellant's immediately vendors and their predecessors-in-title, have held themselves out as owners in possession of the plot in dispute and performed acts consistent with such ownership. In any opinion, the appellant has produced as good evidence of his title to the plot as any one may in this country and should have been adjudged the owner. I do so adjudge him and disaffirm the learned judge's contrary conclusion.

That leaves me only with the damages sought for trespass. In view of my finding on the issue of title, the appellant was entitled as against the whole world to possession of this land. His possession was invaded by the first respondent and was persisted in spite of warning. Even a court order enjoining him from doing so pendente lite, was unavailing. The first respondent admitted that an interim injunction was ordered to restrain him from carrying on his activities on the land. When it was put to him that, ``Yet you flouted the order by running your bar?'' his answer was, ``Yes, I operate my chop bar in the structure I put on.''

There is no evidence of what a ``chop bar'' is but I think it is a matter of which I ought to take judicial notice. I am not going to assume judicial ignorance of what everybody knows in this country. The operation of a ``Chop bar'' in a bamboo structure on a portion of land where the appellant has his residential building, will constitute considerable nuisance to him. The second and third respondents on their own showing, authorized this nuisance on the appellant's land. They are all liable to him in damages. In all the circumstances, I would award in favour of the appellant against the respondents, jointly and severally, 600.00 damages for this undoubted wrong.

Accordingly, I would allow the appeal and set aside the judgment appealed from together with the order for costs. The costs, if paid should be refunded to the applicant. In lieu of that judgment, I would make a declaration of title of the land in dispute and fully described in the writ in favour of the appellant and also award him 600.00 damages for trespass. He will have his costs in this court and in the court below.

ANIN J.A.
I agree

FRANCOIS J.A.
I also agree

Appeal allowed.
Judgment for the appellant.

J.D.





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Josh DuBois 2004-12-01