DADZIE AND BOATENG vs. KOKOFU [1961]DLSC880

Date	1961-02-13
Suit No.
Citation No.	[1961]DLSC880

KORSAH JSC

C.J. JSC

VAN LARE JSC

SARKODEE-ADDO JSC

E. AKUFO-ADDO FOR THE APPELLANT

S. BAIDOO FOR THE RESPONDENT

[1961]DLSC880
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&nbsp;vs.

&nbsp;[SUPREME COURT]

[1961] GLR 90

DATE: 13TH FEBRUARY, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
AKUFO-ADDO FOR THE APPELLANT.

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KORSAH, C.J., VAN LARE AND
SARKODEE-ADDO, J.J.S.C.

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&nbsp;

Korsah, C.J., delivered the judgment of the court. This is an
appeal from the judgment of Smith, J. sitting in the Land Court in exercise of
its appellate jurisdiction from a judgment in a suit instituted in the Bibiani
Native Court “B”. The writ reads:

“The plaintiff claims from the defendant judicial relief for the
defendant to show cause why the defendant has refused to give to the 1st
plaintiff, the successor of late Kwame Adufo, a cocoa farm belonging to the
late Kwame Adufo, which cocoa farm situate at Mpokuampa, Bibiani, given to
defendant on pledge for the sum of £G7 since sixteen years ago.”

The plaintiffs’ case briefly stated is that, about three days
before his death Kwame Adufo, who was at the time seriously ill and allegedly
suffering from tuberculosis, upon the advice of the defendant (to the effect
that he, Kwame Adufo, should return to his native home for medical treatment)
was induced to raise a loan of £G7 from the defendant, to enable him to travel
from Bibiani in Ashanti to his native home in Southern Ghana. He, however, died
without being able to leave Bibiani. As security for the said loan Kwame Adufo
pledged his cocoa farm to the defendant. Essie Otuwah, the niece of the said
Kwame Adufo deceased, was present and witnessed a paper which was made of the
transaction by making her mark and thumb-print thereto; she had testified that
it was a loan transaction and not a sale of the property as alleged by the
defendant.

The defendant’s case is that the late Kwame Adufo offered to sell
the said cocoa farm to him and one Kwasi Buampong, because they were owners of
the land on which the farm was situated; after Adufo had satisfied them that
the farm was not family property, they agreed to purchase it, and caused a
document, exhibit B, to be prepared, which Kwame Adufo executed upon payment of
£G7 to him. They had been in possession of the farm; but Kwasi Buampong, the
co-purchaser, later sold his interest in the cocoa farm to the defendant for
the sum of £G100. The defendant further said in cross-examination that he was
not present when the document was executed but that it was shown to him by
Kwasi Buampong. He does not know the person who prepared exhibit B.

It is not disputed that there are three traditional chiefs at
Bibiani (representatives of Sefwi Anhwiaso, Sankori and Nkawie) who are the
three persons in charge of all the land in the area as representatives of the
three chiefs who are co-owners of all the lands in the area; but the defendant
contends that although the document relating to the sale of the cocoa farm is
not signed by the three representatives it is nevertheless valid.

It will be observed that exhibit B purports to have been executed
by persons all of whom are illiterate, but who are alleged to have made their
marks thereto, yet, the writer and witness to the marks was not called as a
witness nor was any attempt made to prove the execution in any other way
whatsoever. The defendant says he does not know the writer and has made no
enquiry to find out who he is and where he can be found.

The issue which the native court had to try was whether the
transaction was a loan or an outright sale of the cocoa farm, the defence
having admitted that the farm was the property of Kwame Adufo until the alleged
transaction. The native court after careful consideration of the evidence
rightly accepted the plaintiff’s case that it was a loan transaction. After
which the burden of proof of the allegation of a sale shifted to the defendant
whose duty it became to satisfy the trial native court that a sale took place.