Hilodjie & Another v George [2005-2005] SCGLR 974

Material Facts:

The plaintiff, alleging that the first defendant trespassed on his land situated at Okwenya in the Manya Krobo Traditional Area, instituted an action in the Circuit Court against him for a declaration of title. He claims the land was given to him as a gift by the Manya-Aklomasu Family, owners of all Okwenya Lands.

The first defendant contended that the land was granted to him by the Dokutse Parteye/Atta-Ablah Family, the co-defendant. In the action, the co-defendant laid claim to all Okwenya Lands and claimed to be owners of the land through first settlement by their predecessors. The co-defendant also gave evidence of making several grants of Okwenya Lands and advanced that such grants have never been challenged.

Procedural History:

At the trial court, judgement was given in favour of the plaintiff. The co-defendant appealed and the appeal was dismissed

In reaching its judgement, the Court of Appeal relied on a report of the Jackson Commission which was published after the Commission set out to determine the boundaries between Manya Krobo and Osudoko.

It also relied took judicial notice of the fact of who first settled on the land by using a textbook authored by Azu and Field.

Issue:

Whether the Court of Appeal was right in relying on the Jackson Commission Report and taking judicial notice of facts rather than the proven matters of possession and or ownership to resolve the issue of which traditional story is more probable.

Arguments of the Co-Defendant (Appellant):

1. That the co-defendant’s overwhelming possession of the Okwenya lands and exercise of rights of ownership over the land for nearly twenty years should entitle him to judgement.

2. That the Court of Appeal erred when it relied on the textbook by Azu and Field to prefer one conflicting traditional story over the other. That the accounts in the book were not true and the court should have rather relied on facts in recent memory such as the co-defendant’s over acts of ownership.

Holding:

The Court of Appeal was wrong in relying on the Jackson Commission Report and taking judicial notice of facts rather than on acts of possession and ownership to resolve the issue of which traditional story is more probable.

Ratio Decidendi:

In the case of Adjeibi-Kojo v Bonsie (1957) 3 WALR 257 , the Privy Council held that:

Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. In such a case demeanour is of little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is most probable.

This principle has been upheld in several Supreme Court cases such as Adjei v Acquah [1991] 1 GLR 13; Adwubeng v Domfeh [1996-97] SCGLR 661; In re Kodieh Stool; Adowaa v Osei [1998-1999] SCGLR 23 ; and In re Taahyen & Asaago Stools; Kumanin I (substituted by) Oppon v Anin [1998-99] SCGLR 399 . From these cases,

The clearly discernible principle is that in cases of this nature, the most satisfactory contemporary facts that a court should look out for are undisturbed overt acts of ownership or possession exercised over the disputed subject-matter. That is not to say that other concrete acts do not or may not qualify as acts in living or recent memory. Indeed, what may constitute a fact or an event in recent memory in one case, may not pass the test in another... Therefore, findings and decisions of courts of competent Jurisdiction, may, appropriately qualify as evidence of facts in living or recent memory.

But evidently, in land litigation, proven uninterrupted and unchallenged acts of possession, in the absence of some cogent evidence on-the record to the contrary, as for example, an unreserved acceptance of crucial parts of the other side’s oral history, cannot be ignored or denied the deserved weight, given that in the first place, by the clear provisions of section 48 of the Evidence Decree, 1975 (NRCD 323), such acts raise a presumption of ownership.

Indeed, this court’s wise counsel in Oppon v Anin (as stated in the headnote at page 399) is that:

“...the court must not allow itself to be carried away solely by the impressive manner in which one party narrated his version, and how coherent that version is; it must rather examine the events and acts within living memory established by the evidence,...”

…

Therefore, in my judgment, where a court is bent on choosing one of two conflicting traditional evidence, it must opt for the version of the party, who additionally leads evidence of undisputed acts of possession or ownership over the subject-matter, unless, of course, something very tangible on the record, justifies an outright rejection of the evidence. This is the underlying principle in the case of Oppon v Anin (supra) as reflected in the headnote already referred to above.

In the present case, the co-defendant has severally shown that he has made grants of Okwenya Lands without any objection. Among others, he made grants to Azumah Nelson and built a 7-bedroom house on the land, and the surveyor also said no one challenged him while surveying lands for the various grants. On the other hand, the plaintiff’s witness could not refer to a single transaction that he or his predecessors had carried out on the land apart from the grant he made to the plaintiff. In light of this, their lordships are satisfied that the co-defendant’s overt acts of ownership should not have been ignored.

Further, Section 9(2)(b) of the Evidence Act, 1975 (NRCD 323) makes provision for the taking of judicial notice of facts in issue. It provides that:

Judicial notice can be taken only of facts which are either:

(b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the fact is not subject to any reasonable dispute.

The essential question is, which sources are covered by this provision? Their lordships believe that some of the sources include:

i. Archival records.

ii. The arts

iii. Literary works.

iv. Findings and decisions of courts of competent jurisdiction.

v. Textbooks, including history books.

Now the question is whether the book of Azu and Field could be used as a source for taking judicial notice in the particular case. Their lordships are of the opinion that it cannot. This is because when the book was presented at the Jackson Commission Inquiry, the historical accounts contained therein were challenged as being inaccurate by Nene Azu Mate Korle, the paramount chief of the plaintiff. Further, a book written by another eminent Krobo writer has also discounted the historical accounts in the book of Azu and Field. In light of this, their lordships concluded that:

Since the accuracy of these textbook accounts have been questioned, they are of doubtful authority. Once the law limits the application of the principle to facts which are not open to reasonable dispute, these textbooks are so unreliable that they cannot qualify as sources in respect of which the judicial notice principle can validly be applied under section 9(2)(b) of NRCD 323.

On the Jackson Commission Report, it cannot also be relied upon because the Commission merely relied on discounted historical accounts in the book of Azu and Field.

Principles in Case:

1. In deciding which traditional story to prefer, the court should consider contemporary facts such as undisturbed overt acts of ownership or possession exercised over the disputed subject-matter.

2. The court must not allow itself to be swayed by how impressive a party narrates his traditional story or the coherency with which such story is narrated.

3. In taking judicial notice of facts, the court should only rely on sources that are disputed.