APPEAL from a judgment of the Land Court, Sekondi, (Smith, J.) dated the 22nd January, 1960, sub nom. Bosomafi v. Kokofu. The Land Court had dismissed the plaintiffs' claim and reversed the decision of the trial court, the Bibiani Native Court ``B''. In the Supreme Court, Isaac Dadzie was substituted as first plaintiff for Akua Bosomafi. The facts are fully set out in the judgment.
``The plaintiff claims from the defendant judicial relief for the defendant to show cause why the defendant has refused to give to the 1st plaintiff, the successor of late Kwame Adufo, a cocoa farm belonging to the late Kwame Adufo, which cocoa farm situate at Mpokuampa, Bibiani, given to defendant on pledge for the sum of £G7 since sixteen years ago.''
The plaintiffs' case briefly stated is that, about three days before his death, Kwame Adufo, who was at the time seriously ill and allegedly suffering from tuberculosis, upon the advice of the defendant (to the effect that he, Kwame Adufo, should return to his native home for medical treatment) was induced to raise a loan of £G7 from the defendant, to enable him to travel from Bibiani in Ashanti to his native home in Southern Ghana. He, however, died without being able to leave Bibiani. As security for the said loan Kwame Adufo pledged his cocoa farm to the defendant. Essie Otuwah, the niece of the said Kwame Adufo deceased, was present and witnessed a paper which was made of the transaction by making her mark and thumb-print thereto; sh had testified that it was a loan transaction and not a sale of the property as alleged by the defendant.
The defendant's case is that the late Kwame Adufo offered to sell the said cocoa farm to him and one Kwasi Buampong, because they were owners of the land on which the farm was situated; after Adufo had satisfied them that the farm was not family property, they agreed to purchase it, and caused a document, exhibit B, to be prepared, which Kwame Adufo executed upon payment of £G7 to him. They had been in possession of the farm; but Kwasi Buampong, the co-purchaser, later sold his interest in the cocoa farm to the defendant for the sum of £G100. The defendant further said in cross-examination that he was not present when  the document was executed but that it was show to him by Kwasi Buampong. He does not know the person who prepared exhibit B.
It is not disputed that there are three traditional chiefs at Bibiani (representatives of Sefwi Anhwiaso, Sankori and Nkawie) who are the three persons in charge of all the land in the area as representatives of the three chiefs who are co-owners of all the lands in the area; but the defendant contends that although the document relating to the sale of the cocoa farm is not signed by the three representatives it is nevertheless valid.
It will be observed that exhibit B purports to have been executed by persons all of whom are illiterate, but who are alleged to have made their marks thereto, yet, the writer and witness to the marks was not called as a witness now was nay attempt made to prove the execution in any other way whatsoever. The defendant says he does not know the writer and has made no enquiry to find out who he is and where he can be found.
The issue which the native court had to try was whether the transaction was a loan or an outright sale of the cocoa farm, the defence having admitted that the farm was the property of Kwame Adufo until the alleged transaction. The native court after careful consideration of the evidence rightly accepted the plaintiff's case that it was a loan transaction. After which the burden of proof of the allegation of a sale shifted to the defendant whose duty it became to satisfy the trial native court that a sale took place.
On this point the judgment of the native court stated, inter alia.
``The writer of this document was one J. E. K. Mensah who is alive but was not called to prove the document. The defendant is an illiterate and has himself told the court that he was not present when the paper or the document was prepared nor was he present during the execution of this all-important document. According to the defendant Kwasi Buampong acted principally for himself and the defendant as the defendant was then at Nkawie but the defendant would not call the said Kwasi Buampong to give evidence.''
In Graves v. Ampimah1 where an agreement was made with an illiterate person the court held that in the absence of evidence that ti was interpreted to the person before execution, a claim based on the agreement could not be sustained.
The native court also said:
``On inspection, the court is satisfied that with the size of this cocoa farm, it is unthinkable even to suggest that about five hundred pounds (£G500) should be reasonable to purchase the cocoa farm absolutely. Of course, no mention was made of any Trema or earnest money without which any sale of property is invalid.''
This judgment was reversed by the learned judge on the ground that the successor, the first plaintiff, did no herself give evidence. This view we consider erroneous in as much as the niece of the deceased who was present at the transaction gave evidence of matters within her knowledge, whereas the first plaintiff who is successor, was not at Bibiani on the date of the transaction and could not have given evidence of the transaction which is the material issue in the case. The fact that Essie Otuwah, niece of the late Kwame Adufo, was the only witness to the transaction does not detract from the weight of her evidence, which is amply supported by the circumstances under which the loan was sought and given. The defendant did not deny that the late Adufo was at the time of the transaction seriously ill and that he died three days after the loan was given and the farm was pledged. Nor did he deny that the money was intended to be used to defray traveling expenses of Kwame Adufo from Ashanti to Southern Ghana for medical treatment.
As regards the length of time, the learned judge again erroneously regarded sixteen years as a long time for a native pledge and that it is not possible by mere inspection to hazard a guess, after such a march of time, as to size and fruitfulness of the farm at the time of the transaction, thus suggesting that the farm might have been improved during the sixteen years. In fact this is the very essence of a pledge of a farm under customary law. It becomes the duty of the pledgee to maintain the farm in a good condition and even to improve it, for that is how the pledgee reaps greater benefit, since he becomes entitled to retain all proceeds of the farm until payment; even extensions to the farm are deemed accretions by customary law.
We accordingly allow the appeal, set aside the judgment of the Land Court, and restore the judgment of the trial native court of first instance--the Bibiani Native Court ``B''.