WEBBER, C.J., SIERRA LEONE.
Two actions were brought in the Tribunal of the Paramount Chief of Akwapim Akropong and of the Paramount Chief of Ga State respectively by the plaintiffs against the defendants in which a declaration of title to two pieces of land with buildings was sought. It is here convenient to set out in full the writ in each case: “The plaintiff as Head of the Family of the late Awo “Afieye of Accra claims for a declaration of his title to all “that piece or parcel of land with buildings thereon situate “at Nsawam in the Akwapim District and bounded on one “side by the Lorry Park, on one side by the Kibbi Road, on “one side by the Store occupied by The Swiss African Trading “Company, and on the fourth side by the property of George “Owoo; and for the defendants to show cause why they “caused their lawyer to write letters to the tenants in the “stores on the said property not to pay rents in respect of the “stores and claiming the said property as the property of “their late father J. W. Kwatchey.
“Dated at Akropong the 6th day of July, 1934.” “The plaintiff (b) as Head of the Family of the late “Awo Afieye of Accra claims for a declaration of his title to “all that piece or parcel of land with buildings thereon “situate at Achimota in the Accra District and bounded on “one side by the property of Susuana Armah, on one side by “the property of Nathaniel Mensah, on one side by Accra “Nsawam Road and on one side by Adieuagya Quash's “property and for the defendants to show cause why they “claim the said property to belong to their late father “J. W. Kwatchey .The plaintiff also claims for a declaration “of title to thirty-five mango trees standing on land of the “Gbese Stool and for the defendants to show cause why they “claim those mango trees to belong to their late father “J. W. Kwatchey.
“Issued at Accra the 12th day of July, 1934.” These two actions were transferred to the Supreme Court by an Order of the Acting Provincial Commissioner dated 15th September, 1934.
When the two actions came before the Supreme Court Aitken, J. made an Order consolidating these two suits on the ground that substantially the same questions of law and fact would arise in regard to each plot of land. This was on the 4th March, 1935.
After a hearing which lasted twenty-four days the learned Judge reserved his Judgment and on the 2nd April delivered his decision dismissing both actions. From this decision the plaintiffs-appellants appealed under five grounds, namely:-- (1) Reception of inadmissible and rejection of admissible evidence. (2) The Judge was influenced by the proceedings and judgment in the case of Kwatchey and Others versus Bright Davies and Others which was not in evidence in the case, and did not form part of the proceedings.
(3) Judgment against the weight of evidence. (4) Judgment contrary to native law and custom. (5) Judgment otherwise erroneous.
The first ground of appeal was not supported by any argument, nor was it dealt with by appellants' counsel during his argument this appeal.
The second ground that the Judge was influenced by the proceedings and judgment in the case of Kwatchey and Others versus Bright Davies and Others which was not in evidence in the case and did not form part of the proceedings was argued at considerable length by counsel for the appellants. It was contended that the proceedings as distinct from the judgment were not before the Court and were read by the Judge who was influenced by them, that Lanchoe one of the co-plaintiffs was the mother of Bright Davies and that the atmosphere of the case was that she was shielding him and that this case was only a ruse to save Bright Davies and consequently it was extremely difficult for any Judge under such circumstances to do justice to his clients’ case. He quoted the case of Tamatey v. Mate Kole, P .C. 1926-29 p.178.
Counsel for respondents pointed out that the judgment of the case Kwatchey and Others v. Bright Davies and Others was properly before the Court because it was exhibited to an affidavit filed in the Provincial Commissioner's Court upon which the Provincial Commissioner acted in transferring the case to the Supreme Court which Court became seised of it and properly had before it all the previous papers. As to the proceedings in that case it was pointed out that counsel for appellants himself had a copy of same in Court and was on several occasions referring to them in his cross-examination. This fact appears to be so if one looks at pages 77, 79, 83, 108, 114 and 115 of our record.
Now I do not think it can be denied that the learned Judge had before him the proceedings and the judgment in this case and it is perhaps true that he read them and as a result he intimated to counsel on both sides that both Nelson and Bright Davies were rogues. I cannot however hold that the learned Judge was so affected by them as to prejudice him in the fair conduct of the trial. In the case quoted by counsel for appellants, it was rightly pointed out that in that case the Judge referred to the former proceedings in his judgment but in this case the learned Judge based his findings upon the oral evidence before him. Our attention has been called to Woodroffe and Ameer Ali's Civil the Procedure in British India, p. 382, in support of the contention of counsel for respondents that if counsel for the appellants thought that the Judge was prejudiced he should have applied to have the case heard by another Judge. The relevant passage from this authority reads as follows:- “If a party desires or intends to make misconduct of a “Judge a ground of appeal to the High Court he ought
“always to draw the Judge's attention to that matter either “by presenting a petition or otherwise so that a proper record “may be at once made of the fact which he desires to establish “in appeal.” With this proposition I entirely agree but in any case I am unable to find that the learned Judge was in the slightest degree influenced by these proceedings and judgment. The judgment now appealed from stressed the anxiety felt by the writer in endeavouring to arrive at the true findings of facts in the case, findings, not on any previous case but on the relevant facts before him, and in his conclusions he supported the plaintiffs in at least two of their allegations namely (1) as to the wood, corrugated iron and gate removed from the old family house after it was demolished and (2) as to the erection by Lanchoe of two small swish rooms with corrugated iron roofs on the Nsawam property during her stay there. In my opinion there is no substance in appellants' second ground and it therefore fails.
I now come to the third ground of appeal, namely:-- (3) Judgment against the weight of evidence.
Counsel for appellants stated that the evidence brought by the plaintiffs was overwhelming but counsel for respondents said there was no independent corroboration of the evidence given by the co-plaintiffs. Now in all cases of this kind where a declaration of title is sought, before any question of native law and custom can be applied, it is necessary to arrive at the facts and the onus is on the plaintiffs to satisfy the Court as to the facts they allege. An Appeal Court will not interfere with the decision of Court on facts unless such decision is shown to be perverse or not the result of a proper exercise of discretion (Chief Ntiaro and Others v. lbok Etok Akpam and Others Nigeria Law Reports Vol. 3 p. 9). The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a Judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong, but if the Appeal Court is in doubt the appeal must be dismissed, since the burden of proof is on the appellant. (Per Griffith in Macaulay v. Tukuru, Full Court Judgment, N.L.R. Vol. 1, p. 37 quoting Lord Esher in The Colonial Security Trust Co. v. Massey L.R. 1896, 1 Q.B.D.). I have carefully read through the whole of the record and am not prepared to hold that the learned Judge was wrong in his findings of facts on the evidence before him. I have considered the authorities quoted and I am satisfied that the third ground of appeal, namely, that the judgment is against the weight of evidence fails.
Now I come to a very important ground, namely, that the judgment is contrary to native law and custom.
Having upheld the learned Judge on the facts as found by him I must deal seriatim with the two lands. Now as to the land at Achimota the learned Judge has found that J. W. Kwatchey bought the Achimota property with his own money. The only evidence left to support the contention that Achimota was family property is that Lanchoe put up a small shed or shelter while she was there for a week or so engaged in petty trading. I entirely agree with the learned Judge when he says: --
“Her adoptive brother would naturally let her do a little “petty trading there if she wanted and erect a stall as I have “indicated. The family system would account for that. It “is not by ‘scintillae’ such as this that the ownership of “land can be determined.”
This finding is consonant with the finding of Deane, Kt., C.J., in the case of Sam. N. Forster Okai v. Kwame Asare and Other. (Suit No. 11/35 18th June, 1935) in which he stated “when he “tried to turn plaintiff off the land the latter disputed his title “and he therefore sold the land to Asare at a great sacrifice to “carry his point. It is I think regrettable but I cannot say that “he had not the right to do so since self-acquired land is not “turned into family land by the owner of the land being kind “enough to allow some of his family to live on the land and “enjoy the use of it.”
The learned Judge did not believe the evidence that Lanchoe's daughter Akoley carried swish to assist Kwatchey in his building operation so it is unnecessary to deal with the effect of this alleged assistance as affecting the ownership of the land. As to Achimota land I am therefore of opinion that the ground that the judgment is contrary to native law and custom cannot be sustained.
Now as to the land at Nsawam. Even if we were to hold that the evidence as to the payment of £100 was to be believed, the fact remained that such an advance was not for the purpose of buying property for the family but for the purpose of trading in cocoa. This seems to have been clear from the evidence recorded on page 25 of the Record and at the time there was never any contemplation on the part of the family to build a family property at Nsawam and this is borne out by the opening statement of appellants' counsel when he said (See page 11 of the Record): “Whilst Kwatchey was residing at Nsawam and during the build “ing of this house and store was pulled down.” So there was no necessity to build a family house at Nsawam at the time this alleged payment was made. The proposition asserted by counsel as a proposition in native law and custom, namely, “if property “is bought with proceeds resulting from the use of the money “actually given and it is agreed that it is bought as family “property then it is family, property” cannot, therefore, be applied as, although there is some evidence that the agreement was made after the money was amassed, the Judge did not believe it.
On the findings of the Judge, what are the facts upon which he must hold that that land at Nsawam was stamped with the character of family land? The sixth finding of the learned Judge (See Record p. 146) was that Madam Afieye did not help Kwatchey to erect building on the Nsawam property. In his seventh finding the learned Judge found as a fact that Kwatchey did help himself to a gate and some boards and corrugated iron sheets after the demolition of the house at Accra and on the eighth finding the learned Judge decided that Lanchoe erected two small swish rooms with corrugated iron roofs on the Nsawam property.
Will this Court hold that on these two findings above enumerated, namely, that the taking of the gate, some boards and iron sheets and the fact of one member of the family being allowed to erect two rooms upon vacant space situated in an established compound self acquired by the deceased Kwatchey, the whole of the property is stamped with the character of family property? I cannot hold that this is the native law and custom of this country. In “Redwar’s Comments” according to native law there is a presumption favour of all land being held jointly by a family or other community but this presumption can be rebutted by evidence that it has been acquired by an individual of the family by his own personal exertion without any assistance from the family or community of whom he is a member and if the holder of land receives any assistance in money or kind from the members of his family toward the erection of a house or the development of the land, the land becomes at once stamped with the character of family land. Now what evidence on the findings of the Judge is there of any assistance in money or kind? Does the removal by a member of a family of a portion of the debris of demolished house stamp a property self acquired by that member as family property? I say that this is not the native law. What became of the remaining portions of the debris--did Kwatchey use them for the other properties he acquired subsequently and have the members of the family claimed those other properties acquired by Kwatchey from his trade profits as family property? I find it unnecessary to delve into the pages of Redwar and Sarbah, counsel on both sides having supplied us with all the relevant passages therefrom.
The last ground is that the judgment was otherwise erroneous. The learned counsel for the appellants referred us to that part of the record in which the Judge stated that he inspected the land at Nsawam and saw the rooms erected by Lanchoe and the gate. He contends that as the inspection was made without the presence of the parties and no record was made the case should be sent back for trial. He quoted Sampson v. Ocquaye 28th May, 1932 West African Court of Appeal in which it was held that the inspection was not recorded and without the parties and so was irregular and the case remitted to Court below for re-trial. I agree with counsel for respondents that here there is no dispute as to the identity of the land nor did the Judge visit the land with only one of the parties, but as was rightly pointed out the inspection resulted to some extent in favour of the plaintiffs for on his eighth finding the learned Judge stated in his findings in favour of the plaintiffs that he relied principally on Madam Kai Mansah's evidence and on what he saw during his inspection. There is therefore no substance in this ground and it also fails.
I am of opinion that this appeal should be dismissed.
KINGDON, C.J., NIGERIA.
I concur in the judgment which has just been delivered and I only desire to add a few observations.
The first is that on a first perusal of the judgment appealed against it might appear that the learned trial Judge had attempted to effect an alteration of the established native law that “even the “slightest contribution of labour or materia1s in building a house “by members of the deceased person's family gives these relatives “a vested joint interest in the house as a family house”. (Redwar page 35).
The passages to which I refer as suggesting this are the following:--
“It seems reasonably clear, then, that if these “ ‘principles’ taken straight from Hayes Redwar without “any limit or modification are to be applied to the facts of “this case in all their native strength and simplicity, then “on the facts as found by me (Nos. 7 and 8 of such findings), “the plaintiffs are entitled to judgment in respect of the “Nsawam property. But are ‘these principles’ to be “enforced by this Court without any limit or modification “whatsoever? Is any assistance in money or in kind, “however slight, sufficient to impress a block of buildings “worth thousands of pounds, otherwise erected by a man “entirely at his own expense and on valuable land he himself “has purchased with the character of family property? ‘Surely there must be some limit to such a principle of “native law if this Court is to enforce its observance—see “section 19 of the Supreme Court Ordinance--and I venture “to suggest as such a limit, the proviso that the family's “contribution, whether in money or in kind, must be a “substantial contribution before this Court will hold that the “whole of the land and buildings in question in any case “have been thereby impressed with the character of family “property. What will amount to a substantial contribution “must, of course, always be a question of fact depending on “the particular circumstances of every case.”
And “As to the Nsawam property, Mr. J. B. Davies tells us “that the two rooms erected by his mother Lanchoe bring in “a rental of £1 a month out of the total rental of £30 a “month accruing from the whole property. It is therefore “not unfair to estimate these two rooms as not exceeding in “value 1/30th of the total value of the whole property: “personally I should put their proportionate value at a “considerably smaller fraction. The value of the gate and “old wood and corrugated iron brought from Accra is, of “course, impossible to estimate even approximate but I “don't think it can possibly amount to more than 1/120th of “the whole property.
“Adding those fractions together we get as the maximum “figure for the family's contribution according to my “calculations the fraction 1/24th of the total value of the “land and buildings. Next I ask myself a final question, “in all the facts and circumstances of this case, is such a “contribution in money and in kind sufficiently substantial “to impress the Nsawam property with the character of “family property, and my answer thereto is in the negative.”
If these passages amount to an attempt to alter the native law by substituting the words “a substantial contribution” for the words “even the slightest contribution” in the passage I have quoted from Redwar, I do not endorse the reasoning as the proper ratio decidendi of this case. But I think that the proper way to regard the transactions in question is that adopted by my learned brother, the Chief Justice of Sierra Leone, in his judgment.
The next point I wish to mention is in reference to another passage from Redwar which has been quoted in argument. “According to native law there is a presumption in “favour of all land being jointly held by a family or other “community, which presumption may, however, be rebutted “by evidence that it has been acquired by an individual “through his own personal exertions in trade or otherwise, “without any assistance from the community of whom he is a “member or by gift to the individual apart from the rest of “the community. Absolute and exclusive ownership of land “by one individual is comparatively rare, although “individual property will probably increase as time goes on “and European notions get a firmer hold of educated “natives.” (Redwar pages 79 and 80).
That was published in 1909 and there can be no doubt that what Redwar foresaw has occurred with even greater rapidity than he anticipated. The cocoa boom led to large numbers of individuals amassing wealth by their own efforts and purchasing property for themselves with the proceeds; so that the presumption in favour of all property being family property is not nearly so strong to-day as it was thirty years ago.
Turning more particularly to the facts of this case I think it should be pointed out that in regard to the Nsawam property the plaintiffs have completely shifted their ground. In opening, the case put forward by their counsel was that “the land at Nsawam was purchased by the late J. W. Kwatchey with “moneys provided by the Awo Afieye family”. Now their case is--not that the property was bought with part of the £100 given, but with the proceeds resulting from trading with the £100, and that at the time of purchase it was agreed between Kwatchey and the family that he was purchasing it as family property.
Therefore to succeed now in regard to their contention that the land became family land at the time of purchase, the plaintiffs the must prove the alleged agreement. They failed to do so to the satisfaction of the trial Judge and I think that, in view of their volte face, and of the very strong evidence that Kwatchey treated the property as his own during his lifetime the Judge was right in disbelieving the plaintiffs' story on this point.
The only other matter I want to mention is to point out, in regard to the allegation that the trial Judge said of the witnesses Bright Davies and Nelson that they were rogues, that these men were witnesses called by the defence and I could understand the defendants complaining; but it is the plaintiffs who are now complaining, and though I think that the remark, if it was made, was ill-advised, there appears to be no substance in their complaint.
I agree that this appeal should be dismissed.
STROTHER-STEWART, J. I concur.