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OHENE OF AGOGO AND ANOTHER
V.
OMANHENE OF KUMAWU AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT KUMASI, GOLD COAST
23RD DAY OF FEBRUARY, 1940
2PLR/1940/54 (WACA)
OTHER CITATION(S)
2PLR/1940/54 (WACA)
(1940) VI WACA PP. 18-23
LEX (1940) – VI WACA PP. 18-23
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
TURBETT, J.
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MATTER/BETWEEN
CONCESSION ENQUIRY No. 246 (ASHANTI) “KUMAWU-AGOGO CONCESSION”
OHENE OF AGOGO – Grantor-Respondent
WILLIAM ARTHUR THORNTON – Claimant
AND
1. OMANHENE OF KUMAWU
2. OHENE OF KWAMAN – Opposers-Appellants
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ORIGINATING COURT(S)
F. C. Quist with B. K. Tamakloe and E.P. Asafu-Adjaye – for Appellants
Hon. K. A. Korsak – for Claimant
E. O. Asafu-Adjaye – for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — GRANT:- Appeal arising out of the granting of a Concession — Issue of estoppel not raised before cannot be raised in Appeal Court.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
(1) As issue of estoppel was not set out in the pleadings or raised in the lower Court, the Appeal Court will not now allow it.
(2) Although admissible evidence was wrongfully rejected, yet if the Appellant’s case is not thereby prejudiced, the Court will not interfere.
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MAIN JUDGMENT
The following judgments were delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND TURBETT, J.
This appeal arises out of a concession granted by the Grantor-Respondent, the Ohene of Agogo, to the Claimant William Arthur Thornton. The Opposers-Appellants, the Omanhene of Kumawu and the Ohene of Kwaman, opposed the grant of a certificate of validity in respect of the concession on the ground that the area covered by it was held not by the Agogos alone but by the Agogos, the Kumawus and the Kwamans in common.
The learned trial Judge held that the Opposers had failed to prove their case and gave judgment for the Grantor with costs.
The Opposers now appeal against that judgment.
It will be convenient to deal with the second ground of appeal first. This is—
“Because the Grantor is estopped from denying the Opposers’ right as joint owners of Agogo lands with the Grantors.”
Now it is fundamental that if a party to proceedings intends to rely upon estoppel he must set it up in his pleadings. In this country unfortunately there are, as a general rule, no pleadings, but it is recognised that the openings of Counsel take the place of pleadings. In the present proceedings there were both pleadings and openings. The Opposers’ statement of their case is dated the (Ashanti) 9th February, 1939. In this there is not one word about estoppel or to suggest that the Opposers intended to set up estoppel. Nor again when Counsel for the Opposers opened their case on the 15th June, 1939, did he give the slightest indication that he intended to rely upon estoppel. It is true that in argument as to the admissibility of the evidence which Kojo Agyekum, a predecessor of the Grantor upon the stool of Agogo, gave in a previous case, the Opposers’ Counsel submitted ”the Agogohene is estopped from denying the evidence given by his predecessor.” But when the Opposers’ Counsel came to make his final address to the Court he was again completely silent upon the question of estoppel. It must be taken then that the Opposers did not set up estoppel in the Court below as part of their case, and it would, in my opinion, be wrong for this Court to allow such an issue to be raised as one of the issues in the case for the first time in this Court. This ground of appeal therefore fails.
The first ground of appeal, and the one mainly relied upon by the Appellants, is –
“Because the learned trial Judge was wrong in refusing to admit into evidence the admissions made by Kojo Adjekum of Agogoin the Omanhene Kofi Boateng of Kwahu versus Ohene Kojo Adjekum of Agogo, Omanhene Kwami Afram of Kumawu and Ohene Kwesi Yamoah of Kwaman before H. E. G, Bartlett in January, 1928.”
As has been stated, this man Kojo Adjekum was a predecessor on the stool of Agogo of the present Grantor and when Agogohene in 1928 he gave evidence in the case mentioned which evidence it was alleged, supported the Opposers’ case and negatived the Grantor’s. He had also been called as a witness in the present proceedings before his evidence in the previous case was tendered. His evidence in the present case was to the same effect as his previous evidence and did support the Opposers’ case.
The evidence which he gave in the previous case was tendered not as evidence of the alleged facts therein stated but as evidence of the single fact that he, as Agogohene, had made these statements which amounted to admissions. This single fact had already been proved by his own parol evidence, and it was not disputed. Counsel for the Appellants submitted in this Court that the rejection of the previous evidence was wrong and that his case was vitally prejudiced by the rejection. He argued that the evidence ought to have been admitted in order to found an estoppel, which the evidence already given did not do. There are two fallacies in this argument; the first is that, as has already been pointed out, he had not set up estoppel as part of his case, and therefore the possibility that the evidence if admitted might create an estoppel was not a good reason for making it admissible. The second is that if the evidence were allowed to create an estoppel, the parol evidence already given was equally effective to do so, for it was to the effect that, as Agogohene, he had made the statements alleged to amount to admissions. I think therefore that the question of whether or not the evidence would create an estoppel makes no difference in considering its admissibility. I am of opinion, however, that the evidence was in any case admissible as evidence of an admission against interest by a predecessor in title of the Grantor (Woolway v. Rowe (1834) 3 LJ. K.B. 121; 1 A. & E. 121) and therefore as going to the credibility of the respective stories told by the parties. Moreover, I think that the fact that Kojo Agyekum had previously given evidence made no difference, strictly speaking, to the admissibility. The evidence could have been put in without calling the deponent to be subjected to cross-examination. But I do think that the fact that Kojo Agyekum had already been called and given evidence to the same effect as that rejected and also to the effect that he had said the same when Agogohene makes all the difference to the effect of the rejection of the evidence. If the parol evidence had not been given the rejection of the previous evidence might have been vital and necessitated the ordering of a new trial, but since the parol evidence was given, the rejection of the previous evidence made, in my view, no difference at all, and is not a sufficient ground for allowing this appeal or ordering a new trial. Its tender was, as has already been mentioned, merely to prove one single fact that fact had already been proved and was not disputed. It could help the Opposers’ case not at all to prove the fact twice instead of once. Moreover there is no reason to suppose that the learned trial Judge failed to notice and give due weight to the significance of the admission.
This leads to the consideration of the sixth ground of appeal, namely that the judgment is against the weight of evidence. As to this it is sufficient to say that I see no reason to disturb any of the findings of fact recorded by the Judge in the Court below.
Six other grounds of appeal were filed, but I can find no substance in any of them.
For the reasons given I am of opinion that the appeal should be dismissed.
PETRIDES, C.J., GOLD COAST.
In 1934 the Ohene of Agogo together with his Sub-Chiefs and Elders granted a concession of five square miles at Agogo in Ashanti to the Claimant.
The opposers alleged that this concession was granted on land not held exclusively by the Agogos but on land owned in common by the Agogos, Kumawu and Kwaman stools.
Leave was granted to the opposers to oppose the grant of the Certificate of Validity and an Enquiry was held by Bannerman, J., who found that the opposers had failed to prove their case and gave judgment for the grantors with costs.
This is an appeal by the opposers against that judgment.
The first ground of appeal is that “the learned trial Judge was wrong in refusing to admit into evidence the admission made by Kojo Adjekum of Agogo in the case Omanhene Kofi Boateng of Kwahu versus Ohene Kojo Adjekwn of Agogo, Omanhene Kwami Afram of Kumawu and Ohene Kwesi Yamoah of Kwaman before H. E. G. Bartlett in January, 1928 “.
At the Enquiry the same Kojo Adjekum (spelt Agyekum) gave evidence for the opposers. In the course of that evidence he said that when he was Ohene of Agogo he was defendant in an action. (That action is the one mentioned in the first ground of appeal and is hereinafter referred to as the Bartlett case). He stated that in that case he gave the history of lands owned in common by the stools of Agogo, Kumawu and Kwaman— that they formed part of the land won from Atari Finam by conquest after the war it was agreed that, as the Kumawus, Agogos and Kwamans belonged to the same tribe, the lands should be held in common and not divided – each State was allotted a specified area and that is why we have Agogo, Kumawu and Kwaman towns – that an agreement was made that if gold was discovered in any particular area it was to be shared among the three States.
After Agyeman and the other witnesses called by the appellants had given evidence at the Enquiry, Counsel for appellants sought to put in the evidence given by Agyeman in the Bartlett case on the ground that it contained admissions. The trial Judge rejected this evidence on the following grounds:-
(1) The Kwahus were not parties to the action before him.
(2) The issues were not entirely the same as those in the Bartlett case, and
(3) Agyekum had given evidence before him at the Enquiry.
If this evidence contained admissions it would be, in my opinion, immaterial whether it was given in an action in which the issues were not quite the same as in the Enquiry or that the Kwahus were not parties to the Enquiry.
In Woolwav v. Rowe 1 A. & E. 114, it was held that admissions by predecessors in title or other persons in privity with a party, may be given in evidence against such party although the predecessor was living and in Court at the time. The Court in that case said “the fact of his being alive at the time of the trial when perhaps his memory of facts was impaired, and when his interest was not the same, does not, in our opinion, affect the admissibility of those declarations, which he formerly made on the subject of his own rights…”
It results from this decision that, had the evidence given by Agyekum in the Bartlett case been tendered before he went into the witness-box, it would have been admissible. Had this course been adopted Agyekum would have been liable to cross-examination thereon.
One thing is abundantly clear and that is that the appellants were not prejudiced by the rejection of Agyekum’s evidence in the Bartlett case for not only did Agyekum say “I gave the same evidence in the case before Bartlett as I have given in the present case” but Mr. Quist, Appellant’s Counsel, admitted to us that this was so. Mr. Quist’s own words on this point were:-
“He was our own witness, He said the same, but the point is what he said in this case was as a private person and did not bind the Stool. What he said in the other case he said as Agogohene and it bound the Stool”.
I am unable to agree with this argument for any admission made by Agyekum in the Bartlett case which bound the stool, was equally binding on the stool if repeated by him at the Enquiry and he had said that he had made the same admission in the Bartlett case while he was on the stool.
Although the trial Judge stated that Agyekum did not impress him as a truthful witness, it is clear that he did not reject all the traditional evidence given by him. From his reasons for judgment it will be seen that he has expressed the opinion that about two or three hundred years ago the Agogos, Kwnawus and Kwamans captured from Atari Finam a very large tract of land and, during the last hundred years or so, each of the three States has gradually appropriated a definite area to itself and settled thereon and the area of each State became known in course of time as Agogo, Kumawu and Kwaman respectively — that after each State had definitely settled in a particular area, the grassy land which lies between Agogo and Kumawu became the common property of all the three States.
He went on to say that he did not for one moment believe that the ancestors of the Kumawus, Kwamans and the Agogos ever bound themselves by oath that any gold found in any of the three divisions should be shared equally among them and he did not believe that this so-called oath had since been renewed.
Turning to the judgment in the Bartlett case it will be seen that Mr. Bartlett emphasised that his judgment only concerned a certain area of land of which he gives the boundaries. It is not disputed that the towns of Agogo, Kumawu and Kwaman are outside this area.
The second ground of appeal is that the grantor is estopped from denying the Opposers’ rights as joint owners of Agogo lands with the Grantors.
There were no pleadings at the Enquiry. The question of estoppel was not raised in —
(1) The Statement of the Opposers of 9th February, 1939,
(2) The “Opening” of Opposers’ Counsel on the 15th June, 1939, or
(3) In the final speech of Opposers’ Counsel.
The only reference to estoppel I can find is that made by Opposers’ Counsel on the 14th July, 1939, that the Agogohene is estopped from denying the evidence given by his predecessor.
Unless pleadings are ordered by the Court the “openings” take the place of pleadings in this country. In my opinion the question of estoppel was not made an issue at the trial. In any case the “Agogohene” cannot by himself convey land or rights in land belonging to his stool and cannot therefore bind the stool by an admission although any such statement must be regarded as carrying great weight. It is true that Kobina Obeng, one of the Opposers’ witnesses, said at the Enquiry “I remember Agyekum giving the history of the lands taken from Atari Finam. The Agogos agreed to the evidence given by Agyekum.” There is no reason to assume that the trial Judge overlooked this; on the contrary he appears to have accepted the history of how the lands passed from the possession of Atari Finam.
The seventh ground of appeal was not pressed by Appellants’ Counsel, when it was pointed out that the evidence of Kobina Tandoh was not helpful to his case. I am satisfied that there is no substance in this ground.
The sixth ground of appeal is that the judgment is against the weight of evidence. In my opinion there was ample evidence which justified the trial Judge in holding that the Opposers had failed to prove their case.
There is in my opinion no substance in the other grounds of appeal. I therefore consider that the appeal should be dismissed.
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TURBETT, J. GOLD COAST.
I agree with the judgments that the appeal be dismissed with costs.
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DONALD KINGDON, P.
The appeal is dismissed with costs against the Appellants assessed at £42 15s. in favour of the Grantor-Respondent and at £42 15s. in favour of the Claimant.
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