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Mensah v. Ghana Commercial Bank and Another
2 W.A.L.R. 123, 1957
High Court, Eastern Judicial Division, Land Court
October 25, 1957

Cases referred to:
(1) Agbloe and Others v. Sappor and Another (1947) 12 W.A.C.A. 187.
(2) Owoo v. Owoo (1945) 11 W.A.C.A. 81.

ACTION for a declaration of title to land, the first defendant being, effectively, an interpleader

OLLENNU J.
The plaintiff claimed against the defendant bank for a declaration that she was entitled to a reconveyance of land with a building thereon, situate at Teshie, and an order upon the bank to execute a recoveyonce of the land and building to her. She pleaded that she was the lawful widow and administratix of the late Alexander Laryea Okan-Mensah, deceased, and the mother of his eight children that her late hushnad mortgaged the property in question to the defendant bank, and that she has paid to the bank the sum of 228 10s. 6d., the balance of the mortgage debt due at the date of the husband's death. She made no specific claim against the second defendant.

After entering an appearance the bank deposited in court all the documents of title which they held from the deceased. They were: a deed of gift date November 12, 1954; a deed of mortgage dated April 14, 1955, and an unsigned duplicate deed of rectifications. The bank did not file any defence. At the commencement of the trial Mr. Lokko, counsel for the bank, explained the position of his clients as that of interpleaders, and thereafter he took no further part in the proceedings.

The second defendant is a younger brother of the plaintiff's deceased husband. He pleaded in paragraph 4 of his statement of defence that the land was the self-acquired property of their father and is now family property.

The issue boiled down to a claim buy the plaintiff against the second defendant for a declaration that the property mentioned in the title deeds was the self-acquired property of her husband, the late Alexander Laryea Okan -Mensah. In proof of their title she relied solely upon the afroresaid documents. The deed of gift dated November 12, 1954, and the unexecuted deed of rectification which appears to have been prepared in November, 1955. she not know how those documents came to be prepared; she saw them for the first time in her life while she was in witness although she alleged her late bushand told her, somewhere in 1954 or 1955, that there were document on the land. And she did not know with what moneys her husband erected the house on the land. She deposed that she had no knowledge on how her husband acquired the land apart from what she gathered from the doucuments. Under cross-examination she denied knowing that the land belonged to her husband's late father, William Okan Mensah; however, she had to admit having given evidence before the divisional Court in an administration suit between herself and the secodnd defendant and saying:

``I know that there is land on the main road at Teshie which belongs to my husband's father. My husband built on a portion of the land.

When asked whether that evidence was true, she replied: ``Now, no'' I understand that answer to mean that she knows that fact to be true, but in view of the discovery of the documents she would not admit now as true. Another piece of evidence she gave in the administration proceeding was put to her and she admitted it; but again when asked whether that evidence she gave is true, she replied: "I don't think is true''.

The plaintiff is a very intelligent lady and was very careful in her choice of words and expressions. She gave me the impression that this case. And was not concerned with speaking the truth under here who described himself as a member of the Teshie Mankralo Stool family, and an heir to the Mankralo Stool. He was put up as an expert witness on native custom. This witness gave very useful evidence. I shall quote portions of it in extensor. In answer to counsel for the plaintiff he said in his evidence-in-chief:

``When a Teshie man wants land to build he approaches the respective quarter in whose area that piece of land is situate. The quarter will depute people to go and demarcate the land for him. Upon the demarcation and upon payment of the necessary customary drinks the land becomes the property of the applicant.''

In reply to the Assessor he stated as follows:

''By Teshie custom a person can farm or build on land without obtaining documents By Teshie custom all the lands belong to the Stool, but are uder the care of the seven quarters.

By Teshie custom a person must first approach the elders of the quarter and obtain a grant from them before he builds.''

In answer to the court he said, among other things, that the Teshie Mantes and his elders cannot execute a deed of gift or conveyance of The West African Law Reports

Land to a grantee of the quarter without reference to the quarter who had made the grant; that the sub-chiefs and principal councilors of the Teshie Mantse as mentioned in the deed of gift as concurring in its execution, should, in order of priority, be: the Mankralo, the Ayiku Wulomo, and Shikitele; that the holders of these posts in 1954 were t he same persons who hold them today, and are respectively: Nii Okan Nmashie III, a literate; Numo Nortay, an illiterate; and Nii Adjei Obadzen, an illiterate.

``The Teshie Mantse in November, 1954, was Nii Ashitey Kamoa II. He was destooled sometime in 1955, but by custom he was actually destooled in 1951. The Gazzete in which the Notice of his distoolment appears in No. 81 1954 and 1955.''

This witness's statement of the custom accords with my view of the native customary law and with good sense. I accept it as a correct statement of the native custom. I had that, by custom, a native of Teshie requiring a portion of vacant stool land for building purposes must first apply to a quarter for grant of the land. The grant is made by the quarter and the customary drinks provided: he then becomes entitled to occupy and build on the land. It is the duty of the quarter to give to the chief his proper share of the land direct from the stool in confirmation of the said grant by native custom, he may have it, but the stool cannot execute in whose area the land is situate, since they are the only people who can prove the original grant, and who are the proper persons to know the extent of the grants made in the address.

A direct grant by a stool is an act of the whole town or community, not of the chief only of one quarter. The occupants of the stool can only bind the stool; i.e., the town or community, if he acts with the consent and concurrence of the whole town or community represent y the sub-chiefs, and the principal councilors from all the various sections. When authorized by that body the chief and a linguist or some other elder or elders can execute a deed to bind the stool but it must be shown that they have been so authorized. The deed which a chief and a linguist or an elder executes in voidable; it can be set aside upon proof that there was no authority to execute it.

A departure from the customary procedure of referring to the quarter before executing a deed in favour of the grantee, when encouraged, leads to a stage where the chief and his immediate elders make direct grants of land without the initial customary grant by a quarter. This result in two great evils closely connected with each other. First, it enables the chief and his favourite elders to dispose of land to a grantee without reference to the quarter who had made the grant; that the sub-chiefs and principal councilors of the Teshie Mantse as mentioned in the deed of gifts as concurring in its execution, should, in order of priority, be: the Mankralo, the Ayiku Wulomo, and the Shikitele; that the holders of these posts in 1954 were the same persons who hold them today, and are respectively: Nii Okan Nmashie III, a literate; Numo Nortay, an illiterate; and Nii Adgei Obadzan and illiterate. The witness conclude his evidence in the following words: " The Teshie Mantse in November, 1954, was Nii Ashitey Kamoah II. He was destooled sometime in 1955, but by custom he was actually destooled in 1951. The Gazette in which the Notice of his destoolment appears is No. 81 between 1954 and 1955."

This witness's statement of the custom accords with my view of the native customary law with good sense. I accept it as a correct statement of the native custom. I hold that, by custom, a native of Teshie requiring a portion of vacant stool land for building purposes must first apply to a quarter for grant of the land. The grant is made by the quarter and the customary drinks provided: he then becomes entitled to occupy and build on the land. It is the duty of the quarter to give to the chief his proper share of the customary drink. If the grantee should later a document on the land direct from the stool in confirmation of the said grant by native custom, he may have it, but the stool cannot execute such a document without reference to the head and elders of the quarter in whose area the land is situate, since they are the only people who can prove the original grant, and who are the proper persons to know the extent of the grants made on the areas.

A direct grant by a stool is an act of the whole town or community, not of the chief only of one quarter. The occupants of the stool can only bind the stool, i.e., the town or community, if he acts with the consent and occurrence of the whole town or community represented by the sub-chiefs, and the principal councilors from all the various sections. When authorized by that body the chief and a linguist or some other elder or elders can execute a deed to bind the stool but it must be shown that they have been so authorized. The deed which a chief and a linguist or an elder so executes is voidable; it can be set aside upon proof that there was no authority to execute it.

A departure from the customary procedure of referring to the quarter before executing a deed in favour of the grantee, when encouraged, leads to a stage where the chief and his immediate elders make direct grants of land without the initial customary grants by a quarter. This result in two great evils closely connected with each other. First, it enables the chief and his favourite elders to dispose of the stool lands to the detriment of the subjects and the annoyance fo the head and elders of the quarters, iwth teh consequent unrest in teh community. Such direct grants by the stool have been held in some cases, in my view erroneously, to override the customary grants made by teh quarters. Secondly, it may promote unnecessary dispute between direct grantees fo the stool and those of the quarters as to the extent of land each is entitled to occupy. Coruts of law cannot therefore encourage departure from such well-founded customary procedure.

I also accept the evidence fo this witness that, foremost among the sub-chiefs and principal councillors whose consent and concurrence are necessary in the executoin of a deed by teh Mantse of Teshie on behalf of the stool are, in order of priority, teh Mankralo, the Ayiku Wulomo, and the Shikitele. None of these three most important traditional elders concurred in the deed of gift.

Position. What is moer, Notice No. 3050 of Gazette No. 81 of December 11, 1954, above referred to, shows that at the date of execution of the deed of gift Nii Ashitey Kamoah II had been destooled in accordance with custom and had no authority to act on behalf of the stool. No wonder he could not get the concurrence of recognized traditional elders. The deed of rectification. Of course, is entirely out of the question; it has never been executed.

By native custom no number of elders, however large, of a family or of a stool can execute a valid deed to dispose of family or stool property without the accredited head of the family or the accredited chief is void ab intoio: Agblore and Others v. Sappor and Another (1). Thus even if it had been proved that those who purport to conur with Nii Ashitey Kamoah were accredited elders, the deed of gift would be null and void ab initio, it having been proved that Nii Ashitey Kamoah was not the Teshsie Mantes at the date of the execution, and thus that the Mantse of Teshsie was not a party to it.

I accept the evidence of the defence witnesses, Mr. E. L. Adjei and Mr. Martin Botchway Adjei, without reservation; they were witnesses whose credibility and veracity were proved to the beyond reproach. Mr. Adjei's evidence is corroborated by his building plan dated August 10, 1946; and bearing the stamp of approval by the District engineer given on March 31, 1947. I accept Mr. Adjei's evidence that the late Alexander Okan Mensah was present at the survey from which the plan was prepared, and that it was he who pointed out the land in dispute to hte surveyor as the land of W. O. Mensah.

Mr. Adjei's evidence of W. O. Mensah's ownership of the land is fully corroborated by the pillars which he spoke of in his evidence as having been fixed his. When I visited the land yesterday Mr. Adjei showed me three of those pillars; they appeared to be very old pillars, and each bore the letters ``W. O. M''. he also showed me one of his own pillars; it bore his initials ``E. L. A''. that pillar appeared to be of the same age as the three on the land in dispute bearing the letters ``W. O. M.,'' which letters I accept are initials of the late William Okan Mensah.

The plaintiff led no evidence of the means of her late husband. On the other hand, the deceased is proved to have been in possession of the land in dispute together with three valuable family properties, namely, cocoa farms and a house, loft by their father William Okan Mensah, and which together were yielding an annual income of approximately 200 to 300; he built on the land in dispute while he was in control of those family properties. He never accounted to anyone; indeed, custom would not permit anyone to call upon him to account as head of the family. I cannot presume that with such family moneys in his hands he would sue his own money to build on the family land and would squander the family moneys. It must be pointed out that his means were not proved; on the other hand there is evidence that whan he stood for election he fell debt.

I accept the evidence of the witness Martin Botchway Adjei that the deceased told him the building was erected by himself and his brother, in my opinion the house the deceased built on family land in such circumstance became family property ; he might have only a life interest in the which died with him: see Owoo v. Owoo (12).1

It has been submitted by learned counsel for the plaintiff that the second defendant and the family acquiesced in the deed of gift and must therefore be held to be estopped form disputing the deceased's individual ownership of the property. I cannot accept that view. The second defendant was not a party to the deed. No member of the family was a party to it, as can be seen on the face o fthe document; and although the second defendant said he knew of its preparation, it has no been proved that apart form the bank any person could be said to have acted upon a holding out the deceased by the family as individual owner of the property.

Fortunately the bank has been paid. The plaintiff could not be said to have suffered detriment by paying the balance of the judgement debt out of the estate. She did not even hon until recently that her late husband had taken a loan form the bank and secured repayment with the property. Whether the property was mortaged or not the plaintiff would have been obliged to pay the debt of the deceased if the estate were solvent.

I believe that the evidence given by the plaintiff in the Divisional Court as to the ownership of the land was true, and that the plaintiff knows it to be true. To her knowledge the land is family property. She had not alleged nor proved any gift by the family to her late husband and in my opinion the evidence led is not strong enough to justify the presumption of a gift form the family, or to warrant a finding that the family are estopped from asserting their ownership of the property.

The plaintiff, to succeed , must do so upon the strength of her own case and not upon any weakness in the defendant's case. She might have thought that the mere production on the deeds of gift and of rectification would be sufficient proof of her ownership to discharge the onus upon her. If so, she has been ill advised. She must prove her title in accordance with here own evidence of custom. She has failed hopelessly to discharge the onus upon her and her case must fail.

I declare the deed of gift to be null and void and order it to be cancelled. The plaintiff may have the three deeds if she likes, but she must know that those documents do not give her any title to or right in the property, and she is not entitled to any valid document of title to the property. The plaintiff's claim is dismissed and judgment is entered for the second defendant.

In the circumstances of this case I feel that good relationships should be encoured between the plaintiff on the one hand and the finally on the other, as the plaintiff's children are, by Teshe custom, part and parcel of the family of their father and grandfather, and entitled to enjoy the family property with the other members. I think that the courts hourly lead the way in the promotion of that relationship by awarding only token costs. I do so, and award to the second defendant token costs assessed at two guineas.

The assessor agrees with this judgment.

Judgment for the defendant
S.G.D.



Footnotes

... (12).1
The citation error appears in the original: Owoo v. Owoo is listed as case #2 in the citation list, not #12.




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Josh DuBois 2004-12-01