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YAW ASUAH v. ESSI EGYIRWAH

JELR 84181 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
FOSTER-SUTTON, P., COUSSEY, J.A., AND WINDSOR-AUBREY, J.

Judgement

Windsor-Aubrey, J. The plaintiff-appellant for himself and on behalf of the Twidan family appeals against the judgments of Dennison, J., who sitting in the

Land Court in his appellate capacity, reversed the decision of the Agona Native Court “B” of the Western Province and gave judgments for the present respondents.

The appellant claimed a declaration of title of ownership of the two parcels of land and the farms thereon, one situate at Bekua and the other at Abetsenmu.

In respect of these farms Dennison, J., pronounced separate judgments.

The issue before the Court was whether these farms and the land were the property of the late Kwesi Egyir or whether they were the self-acquired property of Kojo Saakwa alias Samuel Quansah. In his first judgment of the 20th November, 1952, which relates to the Bekua farm, Dennison, J., not only held that Van Lare, J.’s, judgment to which we more particularly refer subsequently, operated as an estoppel as regards ownership of the farm, but also reversed the decision of the Native Court on the ground that the Native Court wrongly admitted extrinsic evidence concerning the conveyance, exhibit “A” , which purports to convey the land to Kojo Saakwa, and held that the land and farm thereon were the self-acquired property of Kojo Saakwa.

In his judgment of the 26th March, 1953, relating to Abetsenmu he held that Van Lare's judgment operated as an estoppel as regards the ownership of the farms, but held that the land was the property of the plaintiff-respondent. The two judgments of Dennison, J., must be read together. In his first judgment he said, in effect, that he did not see how an Appeal Court could differ from the findings of fact of the Native Court.

He, however, made a reservation concerning the plaintiff's witness, Quartey, for the reason that this witness had given extrinsic evidence of exhibit “A” which he held to be inadmissible.

On the death of Kojo Saakwa, his widow by a Christian marriage and her children instituted proceedings in the Divisional Court, Cape Coast, against Kojo Asani, the successor of Kojo Saakwa calling upon him to account for the proceeds of seven farms including the two farms now in dispute. She was successful, and Van Lare, J., on the basis that these two farms were the self- acquired property of Kojo Saakwa ordered the said Kojo Asani to submit an account of all the proceeds of these farms as from the death of Kojo Saakwa. A certified copy of these proceedings (Civil Suit No. 44/1950) were put in evidence and marked exhibit “B” .

The main issue raised on this appeal is whether the judgment of Van Lare, J., operates as an estoppel in respect of both farms.

Although we have not the complete record before us, both counsel admit that it was an administration suit and was conducted on that footing. Such suits in the Gold Coast are confined to the personal estate of a deceased person and cannot deal with real estate or any interest in real estate.

Whatever Van Lare, J., purported to decide in that suit we are of the opinion that it cannot be held to operate as an estoppel in a suit where the subject-matter is the ownership of land, a jurisdiction which is expressly conferred on Native Courts by statute. To hold otherwise would do violence to the legislature when it has conferred exclusive jurisdiction on the Native Courts.

Moreover, I agree with the Native Court when it states:-

“Plaintiff in this case was not a party in case of Sara Quansah and Others v. Kojo Asani. Also there is no evidence showing that plaintiff as the Head of the said Twidan family has ever appointed Kojo Asani, the defendant in that case to succeed or inherit the properties of the said late Kwesi Egyir.”

Further, as counsel for the appellant submitted, the litigation before Van Lare, J., was in respect of Saakwa's self-acquired property, which the appellant has always admitted was in Asani's possession as the successor of Saakwa. The appellant has never laid claim to such property and even if he knew of that litigation he had no reason to take any interest therein as it concerned property in which he had no claim.

The plaintiff was not a party and, in my opinion, cannot be held to have been a privy to the litigation before Van Lare, J., and he had no cause to intervene no family property was involved. There cannot therefore be an estoppel as regards either farm.

It remains to decide whether Dennison, J., was correct in rejecting extrinsic evidence of exhibit “A” as this affects his judgment concerning the Bekua farm as, if such evidence was admissible, the Native Court, having accepted it, were right in finding for the appellant. Generally speaking extrinsic evidence is not admissible to contradict, vary, add to, or subtract from the terms of a document, but there is one well recognised exception to this rule, oral evidence m admissible to explain the true nature of a transaction and the relationship of the parties. It was precisely for this purpose that the Native Court admitted the evidence in question which makes it clear that the Bekua farm was purchased the late Kwesi Egyir and is now family property to which the plaintiff is titled in the capacity in which he sued.

For these reasons I would set aside both judgments of the Land Court and tore the judgment of the Agona Native “B” Court. The appellant to have costs of this appeal and his taxed costs in the Land Court. Any costs already .d by him to be refunded to him.

Foster-Sutton, P. I concur. Coussey. J.A. I concur.

Appeal allowed: judgment of Native Court restored.

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