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Beoku-Betts, J. This is an appeal from the decision of the Divisional Court which declared plaintiff-respondent owner of all that piece or parcel of land situate at Accra and known as Obete Kpakpo land.
Plaintiff-respondent as the Mantse of Akumajay claimed for himself and on behalf of his elders and councillors a declaration that the said land is the property of the Akumajay Stool. Defendants-appellants contended that the said land is the property of the Na Adawude family, a branch of the said Akumajay Stool family.
It is not disputed that plaintiff-respondent as Mantse of Akumajay is the person entitled to claim a declaration of title to any land which is Stool property of the Akumajay Stool family. Defendants-appellants, however, sought to establish title on behalf of a branch of the Stool falnily by traditional evidence based on an alleged gift of the said land to a woman by the name of Na Adawude who was the wife of the Mantse of Akumajay about 200 years ago. No written record of the said gift was produced.
Learned Counsel for the appellants relies on the following grounds of appeal:- “ (2) The trial Judge misdirected himself in the matter of and as to the effect of documents and writings produced in evidence which he construed as conclusive evidence and admissions by the family (appellants) that the land belongs to the Stool.
“(3) The trial Judge considered and was influenced in his judgment by matters not in evidence to wit: passages from Reindorf’s History.
“(4) The Judgment was inequitable inasmuch as “(a) The trial Judge found that the evidence as to occupation taken together with that of tradition would have been sufficient to establish the family’s (appellants’) title, but for the evidence which it is submitted by the plaintiff (respondent) shows clearly that prominent members of the family have repeatedly made it clear that they have occupied the land as caretakers on behalf of the Stool, and not as owners.
“(b) The family (appellants) have occupied the land for a period of about 200 years and have exclusively exercised acts of ownership in respect of the same by grants, licences, sales, and otherwise without accounting to the Stool in any manner whatsoever.” Grounds 2 and 4 were dealt with together by learned Counsel for the appellants.
The learned trial Judge in his judgment reviewed the rival claims and tradition and came to the conclusion that:- The evidence as to occupation taken together with that of tradition would, I think, have been sufficient to establish the family’s title, but for the evidence which it is submitted by the plaintiff shows clearly that prominent members of the family have repeatedly made it clear that they have occupied the land as caretakers on behalf of the Stool, and not as owners. This submission I find to have been fully substantiated.”
By this the learned trial Judge found that occupation and tradition were in favour of the appellants. Had he stopped there, he would have been compelled to find for the appellants, that the land in dispute was family land and not Stool land. But he found that prominent members of the family of the appellants have repeatedly stated that they occupied the land as caretakers on behalf of the Stool and not as owners. The whole appeal,. in our opinion, turns upon whether this finding of the learned trial Judge is supported by the evidence.
The place of admissions in civil cases is admirably stated in Halsbury’s Laws of England, 2nd Edition, Vol. 13, pages 574 and 575 thus:- “In civil cases, statements made otherwise than by way of testimony in Court by a party to the proceedings are evidence of the truth of the facts , asserted against, but not in favour of such party. Although what a party has said on some former occasion may without injustice, be presumed to .be true as against himself, yet no presumption of truth arises when such statements are tendered. in evidence in his favour. As the value of an admission depends on the circumstances in which it was made, evidence of such circumstances is always receivable to affect the weight of the admission. Thus the party against whom it is tendered may show that it was made under an erroneous view of the law, or in ignorance of the facts, or when his mind was in an abnormal condition.”
Admissions are therefore no estoppels and are not conclusive against the party against whom they are tendered. He always has the right to prove the circumstances or to show that they were due to erroneous conception of the law, or ignorance of the real facts or other circumstances which sufficiently explain them. It is, however, for the trial Court to decide the issue and to give due weight to the alleged admissions and the explanatory facts or circumstances.
We propose to review the findings of the learned trial Judge on these alleged admissions and to determine how far the explanatory facts and circumstances can reasonably be said to have detracted from their value or weight.
The first admission relied upon is the evidence of the witness Kru Tei (first witness for the plaintiff). Kru Tei is one of the sons of Abossey Okai, the person from whom the defendant Nii Abossey Okai II, derives his title. As such as a member of the family he has material interest in the property in dispute as family property. He said that his late father told him that the land belonged to Nii Ayikai’s Stool, the first Mantse of Akumajay. He said that when there was no Mantse in Akumajay, his father held the Stool keys and looked after Akumajay lands and property. Learned Counsel for the appellants invited the Court to regard this witness as hostile and a traitor to the family. There was nothing in his evidence which suggests hostility. His evidence is consistent with a witness, who, despite the effect of his evidence on alleged family property, was nevertheless determined to speak the truth. It was quite competent for the trial Judge to regard his evidence as such and to act upon it.
The next witness Robert Coppin Abose (second witness for plaintiff), is a nephew of the late Abossey Okai. He said that Abossey Okai sold some of the Obete Kpakpo lands as caretaker of the Stool. He referred to the circumstances of the execution of the Exhibits “E” and “F” as he was one of the witnesses. The learned Judge then referred to the evidence of Okorli Mensah (fifth plaintiff's witness).
Learned Counsel for the appellants contended that this witness did not say that Obete Kpakpo land was Stool land but that Stool land stretched from Gon Kpataa to Kpatcha Korle and beyond.
In order to find admissions on oral testimony, the evidence must be clear and unambiguous. There is such ambiguity in the evidence of this witness that, in our opinion, it cannot be safely relied upon for this purpose. On the whole, we do not regard the evidence of oral admissions strong enough, by themselves, to displace findings of occupation and tradition.
We next consider the documentary evidence of admissions. Exhibits “A” and “B” which are public notices do not carry the case any further and need only be mentioned. Exhibit “D” may be said to be in a different category. It is a notice published in a local newspaper and reads as follows:- “Notice. “In the issues of November 28 and December 2, 1940, there appeared a Notice signed by Nathaniel Tagoe who styles himself as Headman of Obinte Kpakpo village and Head of late Abossey Okai’s family, that lands known as Obinte Kpakpo lands are family lands of the late Nii Abossey Okai of Accra.
“The public is hereby informed that we the undersigned principal , members of the said Abossey Okai’s family, declare positively that the publication by Nathaniel Tagoe referred to above touching Obete Kpakpo lands is untrue and unfounded and we hereby affirm that Obete Kpakpo land is a property attached to the Stool of Akumajay Mantse. That the late Nii Abossey Okai, was prior to his death, a member of the Akumajay , Stool and had been’ caretaker’.
“The public is hereby further informed that the said Nathaniel Tagoe has never been appointed Headman of Obinte Kpakpoe village neither has he been Head’ of Abossey Okai’s family.
“Nil Akrong Head of Abossey Okai’s Family. “(sgd.) R. C. Abossey “J. D. Tatay Annan “J. O. Quaye “J. E. Armah. “their “Charles Abossey x “James Odoi x “Charles Hammond x “William Adjaye x “Robert Sackey x “Djamah x “Korkoi x “Lartey Kai x “Mansah x “Komiokor x (Page 33)
“Dadaye Oyea X “marks. “Witness to marks: (Sgd.) J. D. Tatay Annan. 9th December, 1940.”
This document on the face of it is important as an admission. It is a public declaration by the head of the same family, now claiming the land as family property, that the land is not family property, and expressly stating that it is Stool land. It states that the predecessor in title of the appellants was a member of the Stool and “caretaker” . It is declared that the statement that the land is family land is untrue and unfounded. The document is signed by the principal members of the family. Unless therefore some satisfactory explanation can be given this document amply supports the findings of the learned trial Judge as to admissions, Nii Akrong, who signed this document as head of the family, gave evidence and was the first witness for the defendants (appellants). He said :-
“I did not write the notice published in the Echo which is Exhibit “D’. I signed the original in the Manche’s house. The Manche sent for me, told me of a previous notice, and said that a reply had been drafted which I should sign. All the Manche’s [sic] documents are prepared by teacher Ashong, so I take it that he prepared this. Before I signed the paper the Mantse asked me whether the land was the private property of Abossey Okai or Stool land. I replied that Abossey Okai did not buy the land. I did not tell the Manche that the land was Stool land.”
Such an explanation was very properly disregarded by the learned trial Judge. The witness Nii Akrong is literate, His handwriting as appears in the original of Exhibit “F” marks him out as fairly educated. He must be taken to have known the nature of the document he signed and his evidence can be regarded as a vain effort to get out of a most difficult situation, R, C. Abossey (second plaintiff's witness) was not asked anything about the document and no other witness was called to explain it or the circumstances under which it was made.
The next document is Exhibit “E” , This is a deed of indenture executed on the 30th May, 1936, by the same Nii Akrong and Nathaniel Tagoe for themselves and on behalf of the elders and people of the Stool of Akumajay and expressed to be with the consent and concurrence of the elders and people who have testified their consent by their signature as witnesses. Nii Akrong signed, as we have said before, and several other persons also did so as witnesses. Among them is R. C. Abossey. James Odoi signed as linguist, This document was expressed to have been read over and explained in the Ga language before it was executed or witnessed.
The next document was Exhibit “F” executed on the 18th November, 1939, I by the same Nii Akrong, of the Stool of Akumajay, acting for himself and as the I representative of all the members of the Stool of Akumajay, whose consent and ; concurrence was stated to be evidenced by their signing as witnesses. This document was made in favour of the Gold Coast Government, and was read over and explained to the grantor and witnesses.
Exhibit “G” dated the 25th August, 1936, was executed by Korlay Ammah as caretaker of Akumajay Affairs with the consent and concurrence of the elders who described themselves as headmen, councillors, linguist respectively.
Exhibit “H” dated 8th October, 1929, was executed by Abossey Okai as caretaker and representative of Akumajay Stool and head of the Stool family of Akumajay.
In these documents the several grantors expressly stated they were caretakers or representatives of the Stool and were conveying the land or area respectively with the consent and concurrence of the elders, councillors or people, The effect is that these documents contained admissions that the land was Stool land and not. family land. Unless explanations are given which satisfy the Court as to the circumstances or show clearly that such admissions should not be so regarded, due weight would be given to them as such. One explanation given is that when Abossey Okai stated in the deeds that he was “caretaker” of the land his mentality should be taken into consideration. It was sought to show this mentality by reference to a recital of his evidence in a previous case and to be found on page 70 of “Judgments of the Full Court held at Accra in February, 1919 “. In that Abossey Okai (the same person who figures prominently in these documents) is reported as saying that the person who is taking care of the land is the owner of land “If he as caretaker claims that he is owner of the land, surely an admission that he as caretaker and therefore for the time being the owner, is in fact only holding the land on behalf of the Stool, there is no element in his mentality which requires any special consideration. Such an admission from a person in that position is of greater weight than if it came from a person who is a “caretaker” according to the English legal conception of the term. A caretaker according to the native customary law of the Gold Coast has full powers of disposing of and dealing with lands in his care if he gets the consent and concurrence of others interested evidenced by their joining in any document. Admissions, therefore, made by him in similar circumstances would be binding and would have full weight and effect.
Learned Counsel for the appellants then drew attention to the evidence of Nii Akrong, who himself signed Exhibit “D” and other documents, and who said that if he bought land with his own money and he owed allegiance to the Stool, he can properly describe it as Stool land. The learned trial Judge did not allow such a statement to influence his judgment. Nii Akrong in Exhibit “D” clearly showed his appreciation of the difference between Stool property and family property, and must be taken to have known the difference between these and private or individual property. It is convenient for Nii Akrong to give the evidence he did. But presumably, the trial Judge preferred his statements in written documents made several years ago when there was no litigation, to his oral statement made during litigation.
Learned Counsel for the appellants then submitted that a caretaker holds an interest analogous to a life tenant in English law, and any admissions he is regarded to have made only bind his interest and not the remaindermen or reversioners. This, of course, would be inconsistent with the claim that a caretaker is the owner of the land. It seems settled law that the dispositions of land by a caretaker, if made with the consent and concurrence of representatives, bind and affect the interest of reversioners and remaindermen. If this were not so, there would be grave unsettling of titles to land to the great detriment of land tenure. The nearest analogy of a caretaker to English law is that of a trustee. In English law the admissions of a trustee would bind the cestui-que trust (Bauerman v. Radenius (1) ).
Learned Counsel for the appellants then submitted that there were other elders of the Stool who did not join in the admissions. It has been shown that the affairs of the Akumajay Stool were in a very confused state, and it is conceivable that in such circumstances, it was difficult to get the elders to sign. But their failure to sign can only be of importance on the question whether the Stool land was properly conveyed.
On the question of admissions to bind the family it is immaterial whether there were members of the Stool who did not sign. The admissions were in favour of the Stool and a statement by these other elders would not have any additional .importance. The real value of the admissions was against the II1embers of the family who asserted that it was Stool land and not family land.
Learned Counsel for the appellants then referred to certain documents to prove that the same Abossey Okai had previously dealt with portions of this property as his individual property. In Exhibit “4” dated the 30th September, 1920, Abossey Okai made a deed of gift to one Titus Glover in a, manner which suggests he was dealing with the portion conveyed as his private property. It was not dealt with as Stool property or family property. In Exhibit “5” made on the 28th January, 1928, Abossey Okai again executed a deed of gift to Agnes Tet- tehkai Ayiku in which he also dealt with the property as his private or individual property. In Exhibit “6” the same Abossey Okai executed a deed of conveyance dated the 23rd September, 1929, by which he conveyed the area defined to one J. O. Amartey as purchaser. These exhibits were not referred to by the learned Judge. We think, however, that their effect on the general evidence as to admissions should be considered. It is recognised law that a person cannot by his acts prove anything in his favour, and these dealings with the property are therefore not of the same value as admissions against interest.
The respondents say that Abossey Okai was able to deal with the properties in Exhibits “4-6” in the way he did because of the disorganised state of the Stool, and at a period when there was no Manche, but whenever he made public pronouncements, he admitted that. the lands were property. The attention of the Court was drawn to the evidence of Abossey Okai in proceedings before the Court as far back as 1909. In Exhibit “J” where Abossey Okai gave evidence in an action on the 28th October, 1912, he said that he was caretaker of the Stool of Akumajay and that Obete Kpakpo was Akumajay Stool land. Previous to this, on the 2nd February, 1909, when he gave evidence before the Supreme Court he said the land was Stool land (Exhibit “K”).
When the whole of the evidence is taken together Exhibits “6- 4 do not affect or detract from the value of the admissions on which the learned trial Judge acted.
Learned Counsel for defendants-appellants has criticised a passage in the judgment of the Court of first instance in which the learned Judge made reference to Reindorf's History (of the Gold Coast), that “it may be noted that it is stated in Reindorf, p. 107, that Ayikai owned a fetish called Afiyie this evidently did not belong to Na Adawude” . There is no evidence on record to support this conclusion. The only reference to a fetish on the land being the following evidence given by Korkoi Abose, the second defendant-appellant in answer to questions by the Court:-
“There is one fetish on the land. There is Afieye fetish. My father looked after it and after him Nathaniel Tagoe. I look after it now. I do not know of any other fetish on the land.”
It is, however, clear that the learned Judge did not base his judgment or the passage quoted, but on the evidence of admissions in the case. As regards the lack of evidence that the appellants ever accounted to the Stool for the lands, the unsettled state of the Stool and the fact that appellants and their predecessors were the persons to whom account should be made, may well explain this. We are satisfied that there was ample evidence to support the judgment of the Court below. The appeal is therefore dismissed with costs assessed at ÂŁ44 1s. 0d.
Appeal dismissed.