DODOO vs. GYANSA AND ANOTHER [1960]DLHC136

Date	1960-01-20
Suit No.
Citation No.	[1960]DLHC136

ADUMUA BOSSMAN J.

R. J. HAYFRON-BENJAMIN FOR PLAINTIFF.

LAMPTEY FOR DEFENDANTS.

[1960]DLHC136
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													<main id="main" class="content" style="min-height: 60rem" >DODOO <o:p></o:p>vs. <o:p></o:p>GYANSA AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT CAPE COAST]<o:p></o:p>[1960] GLR 9<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
20TH JANUARY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

R. J. HAYFRON-BENJAMIN FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA- BOSSMAN J.<o:p></o:p>(His
Lordship referred to the facts and continued).<o:p></o:p>It seems
to me that proof of the ownership of the land need not be restricted to the
evidence of the vendor or to that of eye-witnesses at the sale. It is the
exception rather than the rule that, at the time of litigation about land which
has been transferred by methods of customary transfer, the original owner and
vendor (and the witnesses to the transaction) are alive to tell the tale. In my
experience, it is evidence (if such be available) of the exercise of acts of
ownership over the property during the material years, which has served as a
beacon-light to guide the courts in determining ownership.<o:p></o:p><o:p>&nbsp;</o:p>So in
United Products Ltd. v. Afari and Others (Div. Ct. 1929-31, p. 12) Deane, C.J.
said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The probabilities of the case and the evidence of possession strongly
support the claimant’s story and I do not consider that the fact that she has
not called an eye-witness who was present when the gift was made is ipso facto
sufficient to defeat her case and that in fine a gift cannot be proved as
contended unless a witness to it is produced. “In the case of Basel Mission
Factory v. Suapim a judgment of Smyly, Chief Justice, reported in Local reports
of 1919 page 14, is not in my opinion an authority as contended for the
proposition that in order to prove a gift before a Court an eye-witness of the
transaction must give evidence of the gift; all that the learned Chief Justice
does there is to state the well-known principle of law, namely, that for a gift
to be valid it must be made in presence of a witness, in other words a man
could not be heard to say that a gift had been made to him by a donor secretly,
without a witness. The proving of a gift before the Court must in my opinion be
proved as any other fact is proved and when a person who alleges a gift made in
the presence of a witness does not call that witness that is a fact that merits
most serious consideration but when the other circumstances in the case all
most strongly support the allegation and are in fact only explicable on the
basis of the allegation being true the Court is I conceive quite entitled to
come to the conclusion that the allegation is proved.”<o:p></o:p><o:p>&nbsp;</o:p>Again, in
the case of Ebu v. Ababio (2 W.A.L.R. 55) a case which was considered by the
Privy Council in 1956, the headnote reads as follows: -<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“This was
an action fought between two stools for a declaration of title to an area of
land. The traditional evidence adduced by each stool as to first occupation and
first title was inconclusive, but the plaintiff stool satisfactorily demonstrated
long occupation and the exercise of rights over the land in dispute, and on
this evidence a declaration of title was made in its favour. On appeal the
point was made that the plaintiff stool should not succeed without a finding in
its favour on the traditional evidence of first occupation and title. Held:-
that although traditional evidence has a part to play in actions for
declaration of title, a favourable finding on this evidence is not necessarily
essential to the case of the party seeking the declaration.”<o:p></o:p><o:p>&nbsp;</o:p>Mr. de
Silva, who delivered the judgment of tile Judicial Committee said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It was
argued that the respondent could not succeed without a finding in his favour on
the traditional evidence. In his statement of claim the respondent set out not
only what, according to him, were the historical facts relating to the original
occupancy of the land, but also alleged that ‘from time immemorial possessory
</main>