JUDGMENT
By writ issued on the 25/2/09
the Plaintiff claims against the
Defendant as follows:
“(1). Declaration of title to
all that piece or parcel of land
lying, situate and being at
Nungua New Town Accra, stamped
as LVB No. 7950/04 and
registered as No. 231/2005 at
the Lands Registry.
(2). Damages for
trespass to the said parcel of
land.
(3). Perpetual injunction
restraining the Defendant, his
agents, assigns and workmen from
going onto the land and
interfering with Plaintiff’s
possession of his land.
(4). Recovery of
possession.
(5). Costs”.
2. In an amended statement
of claim pursuant to leave
granted, the Plaintiff has
traced his root of title as
having arisen through the Nungua
Traditional Stool, evidenced in
writing by a:
(i). Deed of lease dated
3/4/1992 stamped as LVB 10256/98
and indexed as AR481/99 between
Numo Borketey Larweh (Gborbu
Wulomo) and Nii Botrabi Oboni II
(Mankralo and acting Nungua
Mantse) representing the Nungua
Stool on the one part as Lessor,
and one Pheebe Cooper as lessee
thereof of the said parcel for a
term of 99 years commencing
5/5/97.
(ii). Deed of assignment
dated 19/12/2000 indexed as
AR8682/2000 between Pheebe
Cooper and one Ken Tweneboah in
which the latter acquired the
entire unexpired term of the
original lessee.
(ii). By a second deed of
assignment dated 13/7/2004
stamped as No. LVB 7950/4 and
registered as No. 231/2005 the
said Ken Tweneboah assigned the
residue of his interest to the
Plaintiff who claims he went
into occupation of the subject
matter while his title deeds
were being processed by the
relevant authorities.
3. In paragraphs 7, 8, 9
and 11 of the Amended Statement
of Claim, the Plaintiff avers as
follows:
“(7). Plaintiff says that
early this year (2005) he
noticed acts of trespass on a
portion of his parcel of land by
the Defendant and caused his
solicitors to write to the
Defendant.
(8). Plaintiff says further
that upon advice he lodged a
complaint with the police for
damages to portions of
Plaintiff’s wall which Defendant
had demolished and was in a
process of commencing the
construction of a building by
digging a foundation for same.
(9). Plaintiff says that
inspite of the notice given to
the Defendant, Defendant is
still continuing with his act of
trespass and has commenced the
building on the portion of
Plaintiff’s plot.
(10). Plaintiff says that he
intended by the acquisition to
put up a dwelling house and
requires every inch of the land
acquired.
(11). Plaintiff avers further
that, Plaintiff cannot be
compensated financially if
judgment is given against the
Defendant and seeks an order to
recover possession of his land
among others”.
4. The Defendant has
contested wholly the Plaintiff’s
claim. In its pleading filed on
15/1/09 intituled “FURTHER,
FURTHER, AMENDED STATEMENT OF
DEFENCE AND COUNTERCLAIM” which
I shall hereinafter in this
judgment refer to as “Second
amended Statement of Defence and
Counterclaim” the Defendant has
denied paragraphs 2, 3, 4, 5, 6,
7, 8 and 9 of the Plaintiff’s
Statement of Claim and pleads
the general issue by putting the
Plaintiff to the strictest proof
thereof.
5. In further denial of the
Plaintiff’s averments, the
Defendant pleads that the
subject matter in dispute does
not form part of Nungua Stool
land as alleged by the Plaintiff
adding that the head lessors of
the Plaintiff had no power to
convey the said parcel in
dispute in the first place.
6. In paragraphs 5 and 7 of
the Second Amended Statement of
Defence and Counterclaim the
Defendant pleads as follows:
“(5). In specific answer to
paragraphs 7, 8 and 9 of the
Statement of Claim, the
Defendant reiterates that he
ordinarily resides in the United
Kingdom and denies receipt of
any letter or notice from the
Plaintiff’s solicitors and avers
that he purchased the land in
dispute from the rightful,
legitimate and bonafide owner,
Dr. Anko Ankrah and therefore
could not have been a trespasser
on the land……….”
(7). Defendant avers that by
the Court of Appeal judgment in
Civil Appeal No. 49/80 and
Supreme Court judgment in Civil
Appeal No. J4/14/2005, the Numo
Nmashie family of Teshie were
adjudged and declared owners of
all the lands at Tessa including
the area in dispute.
(8). Defendant avers further
that the Numo Nmashie Family
acting per their Head of Family
and lawful attorney legitimately
conveyed a large tract of land,
including the land in dispute
and situate at Tessa by virtue
of a Deed of Conveyance dated 13th
October 1990 to Dr. Anko Ankrah.
(9). By another Deed of
Conveyance dated 18th
day of September 2003 the said
Dr. Anko Ankrah conveyed part of
the land he acquired from Numo
Nmashie family which is now the
land in dispute to the
Defendant………”
(11). Defendant shall at the
trial contend that by virtue of
the Court of Appeal and Supreme
Court Judgments, the lands at
Tessa including the land in
dispute originally belong to the
Numo Nmashie family and not the
Nungua Traditional Stool”.
7. Relying on several
decided cases, some of which are
rulings on interlocutory
applications, Terms of
Settlement and in particular the
said judgments in Civil Appeal
No. 49/80 and Civil appeal No.
JA 14/2005 the Defendant has set
up a counterclaim in which he
counterclaims as follows:
“(1). A Declaration that the
land in dispute is situate and
located at Tessa East Legon.
(2). A Declaration that the
Defendant’s grantor, Dr. Anko
Ankrah is the owner of ALL that
parcel of land measuring 335.64
acres situate at Tessa, East
Legon by virtue of the Deed of
Lease dated 20th May
1990 between him and Numo
Nmashie family of Teshie.
(3). A Declaration that the
land in dispute forms part and
parcel of the larger parcel of
land measuring 335.64 acres and
belonging to Dr. Anko Ankrah
Defendant’s grantor.
(4). An order of perpetual
injunction restraining the
Plaintiff his agents, servants,
privies and howsoever called
from interfering with the
peaceful possession and
enjoyment by the Defendant of
the land in dispute.
(5). A Declaration that the
Nungua Traditional Stool is not
the owner of the land in
dispute”.
8. In my view, the
reproduced averments contained
in the Defendant’s second
amended Statement of Defence are
the crucial statements of fact
and of law which the Defendant
is required by the standard
prescribed by our law of proof
to establish. That is not to say
that the other averments
particularly paragraphs 10 – 27
in Defendant’s second amended
Statement of Defence are
irrelevant. They only constitute
accounts of recent events
immaterial to the plea of
Defendant’s root of title and of
estoppel per rem judicatam
raised by his pleadings.
9. In the Plaintiff’s
amended reply to the Defendant’s
second amended Statement of
Defence, the Plaintiff joined
issues generally with the
Defendant and specifically
denied Defendant’s factual
allegations in relation to
notice to the Defendant of
Plaintiff’s objection to
Defendant’s development of the
land. In the said reply the
Plaintiff pleads the judgment in
Suit No. FTHC L94/99 in the case
of EMPIRE BUILDERS VRS. TOPKINGS
LIMITED & 4ORS. The Plaintiff
denied specifically Defendant’s
allegations and his account of
recent events involving
Plaintiff’s attorney referring
to situations where the consent
of the Nungua Stool had been
sought before ground rent could
be paid for purposes of plotting
of land within the area of land
in dispute.
10. The Plaintiff in the said
reply denied all other
allegations of fact in
particular Defendant’s account
of recent encounters at the
Ministries Police Station,
allegations of encounters which
to my mind are inconsequential
in the determination of
Plaintiff’s claim, Defendant’s
Defence, Defendant’s
counterclaim and Plaintiff’s
Defence to counterclaim arising
from the pleadings of the
parties in this suit.
11. The Plaintiff relying on
the averments contained in his
statement of claim and reply to
Defendant’s second amended
Statement of Defence has filed a
Defence to Plaintiff’s
counterclaim and has averred
inter alia that the land
described by the Defendant as
Tessa is also the subject matter
of Land Title Certificate No. GA
2811 Vol. 45 Folio 1 which is
the subject of a caveat. The
Plaintiff further contends in
his defence to counterclaim that
Tessa lands are subject of
grants by the Nungua Stool which
includes land acquired for the
construction of the Accra – Tema
Motorway. The Plaintiff has
urged this court to rely on the
judgment referred to in Suit No.
FTHC L94/99 EMPIRE BUILDERS VRS.
TOP KINGS & 4ORS. and to hold
that any registration by the
Defendant’s grantor of any
portion of the subject is null
and void and of no effect.
12. At the close of pleadings
earlier before the respective
amendments by the parties, the
following issues were set down
for trial at the hearing of the
application for directions.
(i). Whether or not the
land in dispute forms part of
the Nungua Stool land.
(ii). Whether or not the
judgment of the Court of Appeal
No. 49/80 adjudged and declared
the Numo Nmashie family the
owner of the land in dispute.
(iii). Whether or not the
said judgment pleaded by the
Defendant operate as an estoppel
on any claims by the Plaintiff
in respect of the land in
dispute.
(iv). Whether or
not the Plaintiff is entitled to
his claim.
(v). Whether or not the
Defendant is entitled to his
counterclaim.
(vi). Any other
issues arising from the
pleadings.
13. In my opinion, the issues
to be determined in this suit
are both legal and factual. The
factual issues are to be
determined by credible evidence
adduced before the court.
However in the determination of
the factual issues the court
applies tests based on legal
principles to arrive at a
conclusion as to which party has
proved its case to the standard
required by law.
14. I shall proceed to
evaluate the nature of the
evidence adduced at the trial, I
shall examine firstly the burden
of the parties in this suit and
relate same to the facts
presented in their respective
pleadings and the evidence
adduced at the trial, before I
make the necessary findings
while determining the factual
and legal issues set down. The
general position of the law on
proof is aptly stated by Kpegah
J. A. (as he then was) in the
case of ZABRAMA VRS. SEGBEDZI
(1991) 2 GLR 221 at 246 as
follows:
“…………a person who makes an
averment or assertion, which is
denied by his opponent, has a
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment or assertion determines
the degree and nature of the
burden”.
15. Now, by sections 11(4)
and 12 of the Evidence Act 1975
(NRCD 323) the standard of proof
in all civil cases is one on “a
balance of probabilities”. The
judicial approval to sections 11
and 12 of the Evidence Act has
been stated by the Supreme Court
in the case of ADWUBENG VRS.
DOMFEH (1996 – 97) SCGLR 660 at
page 662 where the court stated
that:
“By SS 11(4) and 12 of the
Evidence Act 1975 NRCD 323 the
standard of proof in all civil
cases is proof by the
preponderance of probabilities
no exceptions were made.
In the light of the provisions
of the Evidence Decree, 1975,
cases which held that proof in
title to land required proof
beyond reasonable doubt no
longer represented the present
state of the law”.
16. In the case of EFFISAH
VRS. ANSAH (2005 – 2006) SCGLR
943 Lartey JSC held that the age
old principle in the case of
KODILINYE VRS. ADU 1935 2 WACA
336 which was followed by the
Court of Appeal in DUAH VRS.
YORKWAH (1993 – 94) 1 GLR 217
and which established that the
obligation or burden to adduce
evidence should be placed on the
Plaintiff because the action
being a land case, the Plaintiff
should have to succeed on the
strength of his own case and not
the weakness of the Defendant’s
case has been drifted away by
the courts and has rather tilted
towards the requirement to prove
on the balance of probabilities
in actions to title to land as
provided for under sections
11(4) and 12 of the Evidence Act
(NRCD 323).
17. In my examination of the
evidence adduced by the
Plaintiff and Defendant in the
instant suit therefore, both the
Plaintiff and Defendant have an
obligation to adduce sufficient
evidence in support of their
respective claims and same would
be measured, weighed in the same
degree and extent which any
litigant in a civil trial is
obligated to adduce in order
that upon a proper balance the
logical inferences and findings
would be arrived at relevant to
support the conclusions.
18. I shall now proceed to
examine the evidence adduced in
support of the Plaintiff’s case
and will relate same in the
context of the standard of proof
I have already set out in this
judgment. Plaintiff’s evidence
in this suit is documentary,
traditional and one of recent
acts possession of the subject
matter. One Christopher Ayi
Cobblah holder of a power of
attorney constituted on the 3rd
day of February 2005 acted for
and prosecuted the Plaintiff’s
claim. His instrument of
appointment as a donor of Power
of Attorney was tendered in
evidence as Exhibit ‘A’.
19. His evidence is that he
came to know the Defendant when
he (the Defendant) allegedly
trespassed onto the Plaintiff’s
land comprising six plots
located at the Northern side of
the Accra Tema Motorway known as
Ajirigano or East Legon
Extension or Nungua New Town.
The Plaintiff’s attorney
tendered Exhibit ‘B’ a deed of
assignment between one Pheebe
Cooper as assignor, and Ken
Tweneboah as assignee. According
to Plaintiff’s attorney, it is
in furtherance of Exhibit ‘B’
that the deed of assignment
dated 13th July 2004
was created transferring all the
interest of Ken Tweneboah to the
Plaintiff in this suit as
contained in Exhibit ‘C’ which
was registered at the Land
Registry as No. 231/2005.
20. The Plaintiff’s attorney
stated that the Plaintiff had
completed a fence wall which was
cut into about fifty feet by the
Defendant who then entered the
Plaintiff’s land to an extent of
50 feet on the west and through
an unfenced portion by 220 feet
pictures of which Plaintiff’s
attorney tendered in evidence as
Exhibit ‘D’.
21. Following a report to
Plaintiff’s solicitors of the
incident and by letter dated
19/1/05 Exhibit ‘E’ the
Plaintiff’s lawyers warned the
trespasser/developer. Exhibits
‘F’, ‘G’, ‘H’ and ‘H1’ were
tendered giving a pictorial view
of the various stages of
development Defendant was
alleged to have carried out on
the Plaintiff’s land. When the
Defendant’s counsel was called
upon to cross – examine
Plaintiff’s attorney, nowhere
during cross examination was any
part of Plaintiff’s attorney’s
evidence contradicted nor
discredited through cross –
examination. Significantly none
of the exhibits tendered by
Plaintiff’s attorney was
impeached by cross –
examination.
22. From the line of cross –
examination adopted by
Defendant’s counsel, it seems to
me that Defendant’s counsel was
only interested in establishing
the fact that Plaintiff did not
apply for an interlocutory
injunction to restrain the
Defendant from developing the
subject matter and further that
Suit No. 49/80 in the case of IN
RE: ADJANCOTE ACQUISITION also
known as KLU VRS. AGYEMAN II
(1982 – 83) GLR 852 (CA) affects
the area in dispute in favour of
Defendant’s grantors without
more.
23. As I have indicated
earlier the evidence of
Plaintiff’s attorney stood
uncontradicted and unchallenged
as there was no cross –
examination at all on the
material matters supported by
Exhibits ‘B’, ‘C’, ‘D’, ‘E’,
‘F’, ‘G’, ‘H’ and ‘H1’ none of
which the Defendant’s counsel
had challenged during cross
examination.
24. The law is that when an
allegation of fact in a pleading
is admitted by the opposing
party the person alleging need
not adduce evidence on the
allegation FORI VRS. AYEREBI
(1966) GLR 627 applied. So also
will the principle of implied
admission for failure to cross –
examine apply where a party is
held to have accepted without
question the evidence of his
opponent when he fails to cross
examine on material matters for
which evidence has been adduced
in the support of the case of
his opponent and therefore no
further evidence need be adduced
by the opponent.
The entire cross examination
conducted by Defendant’s Counsel
on the Plaintiff’s attorney is
reproduced as follows:
“Q. Mr. Cobblah at the time
you negotiated the land for your
donor that is Latif was there
anything on the land?
A. Yes My Lord.
Q. The land in
dispute, what is its state
today?
A. Abdul (that is
Plaintiff) has constructed a
fence of his remaining on top
and then the Defendant has
developed a storey building on
the part he trespassed.
Q. So there is
development there?
A. Yes My Lord.
Q. Now Mr. Cobblah this
case started as far back as 2005
and no where in your processes
did you ever file for an
injunction. Did you ever file an
injunction restraining the
Defendant from developing the
land?
A. No My Lord.
Q. You said the Nungua
Stool were not parties to the
judgment of 49/80?
A. Yes My Lord.
Q. Now that particular
judgment did it affect Nungua
interest?
A. I cannot
determine.
Q. You cannot
determine?
A. Yes My Lord.
Q. Do you know that the
particular judgment of 49/80
talks about the problem of the
area in dispute?
A. I am not
aware.
Q. But are you
aware the land in dispute is
called Tessa?
Court: Is it
a question or you are putting it
to him.
Defendant’s counsel: I am
putting it to him. I also put it
to you that the whole of that
area whether Tessa or Ajirigano
is the least popular settlement
and that all those areas are
commonly known as Ajirigano.
A. Yes My Lord.
Q. Now when you went to
conduct your search, the
recordings on the search sheet,
did it reveal any other owner
apart from the Nungua Stool?
A. The search
never revealed any owner.
Q. It didn’t
reveal the Nungua Stool?
A. Yes My Lord.
Q. You know Dr.
Anko Ankrah?
A. Yes My Lord.
Q. Who are the owners of
the land that is sharing the
boundary with the land in
dispute?
A. In the Eastern side of
the property in question is
bounded by property of Lomotey
Makpoi of Nungua. On the Western
side is a vacant plot before
Mrs. Laudina Mahama’s property
but I don’t know the grantor.
Q. Of course I don’t expect
you to know her grantor. My Lord
that is all for the witness”.
25. From the nature of
Defendant’s counsel’s cross –
examination two matters arise.
Firstly, Defendant’s assumption
is that by the Plaintiff’s
failure to seek an order for
interlocutory injunction to
restrain the Defendant from
developing the subject matter in
dispute, the conduct of the
Plaintiff amounts to standing
by, and that notwithstanding
notice of this action and the
evidence that Defendant was
reported to the police for
causing damage, the Plaintiff
cannot be heard to now complain
about the Defendant’s
development of the subject
matter. The second is that of
references and suggestions made
to Plaintiff’s attorney about
the effect of the decision in
the case of KLU VRS. AGYEMAN II
supra on the Plaintiff’s claim
which counsel for Defendant
prefers to simply call Suit No.
49/80.
26. Not having cross –
examined the Plaintiff’s
attorney on any of the Exhibits
tendered nor the evidence he
gave for the Plaintiff, it is
obvious that counsel for the
Defendant had relied
substantially on the decision in
RE: ADJANCOTE ACQUISITION, KLU
VRS. AGYEMAN II (supra) as the
foundation of Defendant’s case
in this suit. I will now examine
in detail the line of cross –
examination by the Defendant’s
counsel together with the
evidence of ‘PW1’ in order to
determine the weight I should
attach to his evidence and its
value in the discharge of the
onus on the Plaintiff in this
suit.
27. As Brobbey JSC stated in
his book “Practice and Procedure
in the Trial Courts & Tribunals
of Ghana” at page 513 paragraph
1210.
“The objects of cross –
examination are two told. First
it is to weaken or nullify the
opponent’s case and secondly, it
is to establish facts which are
favourable to the cross
examiner. In effect cross –
examination aims at testing the
accuracy of the witness’s
evidence and at giving the
witness the chance to deal with
the case of the cross examiner”
With all due respect to
Defendant’s counsel he failed in
this respect.
28. In the case of AGBOSU
VRS. KOTEY also known as In Re –
Ashalley Botwe Lands (2003 –
2004) SCGLR 420 Wood J.S.C. (now
Chief Justice) in her lead
opinion cited the case of MANTEY
& ANOR VRS. BOTWE (1989 – 90)
1GLR 479 and relied on the
principle it established as
follows:
“…………where a party’s testimony
of a material fact was not
challenged under cross –
examination, the rule of implied
admission for failure to deny by
cross – examination would be
applicable and the party need
not call further evidence on
that fact”.
I have read the MANTEY & ANOR
VRS. BOTWE case and hold the
view that it applies to the
Defendant’s conduct of cross –
examination of the Plaintiff’s
witnesses. Mindful of the
caution to trial judges in its
application against illiterate
parties I donot think the
caution applies to the Defendant
in this suit having been
represented by counsel of his
choice.
29. The Plaintiff’s case was
also supported by the evidence
of ‘PW1’ RANSFORD ADDOTEY a
donee of a power of attorney
donated by Numo Borketey Larweh
Tsuru the Gborbu Wulomo of the
Nungua Traditional Area. The
power of attorney was tendered
in evidence as Exhibit ‘J’. His
evidence was both traditional
and documentary in which he
traced the history of Nungua
acquisition of lands and their
boundaries dating back from time
immemorial. He tendered in
evidence Exhibit ‘K’ a
certificate of authentication by
the National Archives of Ghana
dated 11th October
1979 in case No. 4/1924 on the
Tema – Nungua Land Dispute which
included site plans positively
identifying the extent of Nungua
Lands. The witness testified
that the people of Teshie now
own land which was given to them
by the Nungua Stool sometime
about the year 1710.
30. He further stated that
the people of Teshie did not
limit themselves to the area of
land delimited by the old
boundary but have made
developments across the
boundaries towards the Teshie
Camp a situation which caused
the then colonial Governor to
order a fresh demarcation to be
undertaken which exercise was
recorded and authenticated by
certificate of authentication
dated 2nd October
2002 admitted in evidence as
Exhibit ‘C’ and together with a
site plan and detailed
description of the extent in
area of Teshie land constituted
the Towns Ordinance CAP 69 more
appropriately referred to as
TOWNS (TESHIE AREA) APPLICATION
ORDER 1945.
31. The witness proceeded to
give evidence with respect to
towns and villages belonging to
the Nungua Stool as well as its
boundary owners parts of which
was acquired by government. He
tendered Exhibit ‘M’ a
certificate of authentication
from the Public Records and
Archives Administration
Department which verified EI 17
an instrument under the hand of
the then Commissioner for Lands
and Minerals Resources which
compulsorily acquired the area
of land approximately 412.60
acres at Nungua – Otinshie which
the witness asserts is an area
of land close to the land in
dispute.
32. The witness also tendered
EI 10 the State Lands (Accra
Nungua site for the Management
Development and Productivity
Institute). Amendment Instrument
1975. Evidence was also given on
various grantees of the Nungua
Stool including one Lomotey
Makpoi whose parcel is said to
be sharing a common boundary
with the Accra Tema Motorway and
was made in 1962. The documents
verifying claim for compensation
made by the said Lomotey Makpoi
were tendered in evidence as
Exhibit ‘P series. In answer to
a question under examination in
chief, the witness testified
that the subject matter of this
suit is adjacent to the parcel
granted to the said Lomotey
Makpoi for which compensation
was paid by the government
arising from the construction of
the Accra Tema Motorway.
33. The witness identified
Exhibit ‘B’ the deed of
assignment between one Pheebe
Copper and Ken Tweneboah
Plaintiff’s grantors and
confirmed that the conveyance
originated from the Nungua Stool
who are head grantors thereof.
The witness further testified
that the area in dispute is
known as Ajirigano adding that
the Greater Accra Regional House
of Chiefs had prepared a list of
all towns and villages and that
by 1966 one Nii Okle Boye who
was Chief of Ajirigano hailed
from Nungua. Exhibit ‘Q’ was
tendered to substantiate this
assertion. The witness denied
Defendant’s claim that the land
in dispute falls within an area
called Tessa adding that Tessa
does not extend beyond the area
called the Spintex Road while
Ajirigano is on the north of the
Accra Tema Motorway and are
consequently geographically
apart. Finally the witness
denied any knowledge of the
judgment in suit No. 49/80 the
Ajancote Acquisition
Compensation claim and stated
that the Nungua Stool on whose
behalf he gave evidence in
support of Plaintiff’s claim,
was not a party to that suit.
34. Under cross – examination
by Defendant’s counsel, witness
said the power of attorney he
holds was specifically
constituted for the purposes of
his participation in this suit
as witness. ‘PW1’ agreed to a
suggestion to him by Defendant’s
counsel that the area called
Tessa is different from
Ajirigano and in further answer
to another question identified
the area in dispute by
references to the location of
the area of land granted to one
Lomotey Makpoi by the Nungua
Stool.
35. In the course of cross –
examination of ‘PW1’ by
Defendant’s counsel the
following evidence was elicited.
“Q. But you know there
are many houses around the land
in dispute?
A. My Lord there are many
houses because that place has
fully developed.
Q. Now I put it to you that
most of the people around the
land in dispute got their title
from Teshie?
A. My Lord, what I know is
that most of them gained their
title from Nungua and the
document that I know is Nungua
Stool land.
Q. I put it to you that it
is only the Plaintiff and the
people in this area who got
their title from Nungua?
A. My Lord it is not true
because if you file a search in
the Lands Commission, you will
see that all the lands granted
in that area is for the Nungua
Stool land.
Q. The land in dispute
belongs to Numo Nmashie in
Teshie but not Nungua.
A. My Lord it is not true.
My Lord Numo Nmashie family came
to Nungua to plead for land and
was granted to them by the
Nungua Stool”.
36. The above reproduced
examination of ‘PW1’ is
materially what the Defendant’s
counsel elicited from ‘PW1’.
‘PW1’s evidence of traditional
history of acquisition supported
by documentary evidence was not
disputed, challenged nor
contradicted through cross –
examination. Neither did the
Defendant’s counsel confront the
witness with any grant of land
contiguous to the area in
dispute made by the Numo Nmashie
family to substantiate his case
and discredit the evidence of
‘PW1’ with respect to grants in
the area in dispute having been
made by the Nungua Stool and not
the Numo Nmashie family nor
other grantor allied to Teshie.
37. In the result, ‘PW1’s
evidence just as the evidence of
Plaintiff’s attorney stood
unchallenged and undiscredited
in its material particular with
its resultant effect in law in
the evaluation of the evidence
and weight to be attached in
order to arrive at a decision.
38. It is obvious from the
cross – examination conducted by
counsel for the Defendant that
he did not seek to discredit the
Plaintiff’s attorney and ‘PW1’
but rather adopted an approach
which they took advantage of to
confirm their testimony during
examination in chief. The law is
that to discredit the testimony
of a witness, the cross examiner
must suggest or put to the
witness that the testimony is
not creditable, failing which
the testimony would be deemed to
be admitted. This rule of cross
– examination which was
formulated in the case of BROWNE
VRS. DUNN (1894) 6R.67 H. L. by
Lord Herschell Lord Chancellor
was applied by Taylor J. (as he
then was) in ARMAH MENSAH VRS.
THE REPUBLIC (1971) 1GLR at page
20 thus:
“It is noteworthy that the
Appellant did not put his
version of the facts relating to
his travelling to Bolgatanga to
the second prosecution witness,
but it is equally note worthy
that when he gave his version in
evidence he was not challenged
in cross – examination. What is
the resultant legal position?
Two English cases are
authorities for the proposition
that when a person is not cross
examined on any material issue,
it is improper to disbelieve his
evidence on that particular
material issue. The first is
BROWNE VRS. DUNN which has been
set out in COCKLE’S CASES &
STATUTES ON EVIDENCE 9TH
EDITION where Lord Herschell L.
C. said at pp. 257 – 258:
“… It seems to me to be
absolutely essential to a proper
conduct of a cause, where it is
intended to suggest that a
witness is not speaking the
truth on a particular point to
direct his attention to the fact
by some questions put in cross –
examination showing that, that
imputation is intended to be
made and not to take his
evidence and pass it by as a
matter altogether unchallenged,
and then, when it is impossible
for him to explain as perhaps he
might have been able to do, if
such questions had been put to
him, the circumstances which it
is suggested indicate that the
story he tells ought not to be
believed, to argue that he is a
witness unworthy of credit. My
Lords, I have always understood
that if you intend to impeach a
witness you are bound whilst he
is in the box, to give him an
opportunity of making any
explanation which is open to
him…..”
In the same case, Lord
Halsbury observed at page 258.
“To my mind nothing would be
more absolutely unjust than not
to cross – examine witnesses
upon evidence which they have
given so as to give them notice
and to give them an opportunity
of explanation, …….. and not
having given them such
opportunity, to ask the jury
afterwards to disbelieve what
they said, although not one
question has been directed to
the accuracy of the facts they
have deposed to”.
At page 258 Lord
Morris was even more emphatic.
“In this case, I am clearly of
the opinion that the witnesses
having given their testimony,
and not having been cross –
examined, having deposed to a
state of facts which is quite
reconcilable with the test of
the case, it was impossible for
the Plaintiff to ask the jury at
the trial and it is impossible
for him to ask any legal
tribunal, to say that those
witnesses are not to be
credited”.
39. This rule has been cited
with approval by the then
Supreme Court in the case of IN
RE: JOHNSON (DECD.) DONKOR VRS.
PREMPEH (1975) 2GLR 182. CA. In
such circumstances as in this
case where the cross – examiner
fails to discredit the testimony
of the Plaintiff’s witnesses
further evidence would not be
required on that evidence. See
also QUAGRINE VRS. ADAMS (1981)
GLR 599 C. A. and WIAFE VRS. KOM
(1973) 1GLR 240 H. C.
40. While the evidence of
Plaintiff’s Attorney stood
unchallenged and uncontradicted
during cross – examination the
evidence of ‘PW1’ on traditional
history which was supported by
evidence from public records was
also not discredited in any way.
In both cases as I have earlier
observed there is implied
admission of the evidence as
credible and true for failure to
cross – examine.
41. In the particular case of
the ‘PW1’, I find his evidence
brief as it is on the Nungua
Stool ownership of land, their
boundaries and the fact that the
area in dispute cannot be said
to fall outside the Nungua Stool
holding as consistent with
decided authorities on the
criteria for evaluation of
traditional evidence in several
cases which are (i) Facts in
recent years as established by
the evidence
(i). Recent Acts
(ii). Possession
(iii). Accepted
facts. (Documentary in this
instance)
As was held in ADJEIBI – KOJO
VRS. BONSIE & ANOTHER 3 WALR 257
pc. holding (i) at page 257.
“The most satisfactory method of
testing traditional history is
by examining it in the light of
such more recent facts as can be
established by evidence in order
to establish which of the two
conflicting statements of
tradition is more probably
correct”.
42. In the instant suit, the
Defendant having failed to
discredit the Plaintiff’s
evidence of traditional history
which Plaintiff’s witness
(‘PW1’) supported by documentary
evidence of acts of historical
record and recent facts, no
other version supportive of the
Defendant’s head grantors has
been put up for comparison by
this court. The Defendant has
clearly relied on the decision
in the ADJANCOTE ACQUISITION
case and did not adduce any
evidence to contradict the
evidence supporting the Nungua
Stool version.
43. In consequence, the
testimony of the Plaintiff’s
witnesses stood unchallenged and
uncontroverted at which stage
the onus shifted on the
Defendant in terms of section
11(4) of the Evidence Act NRCD
323 to produce sufficient
evidence so that the court would
conclude on the preponderance of
evidence that the facts alleged
by Defendant in his defence is
more probable than of its non –
existence. Further that, the
doctrine of estoppel per rem
judicatam raised as a legal
defence to the Plaintiff’s claim
ought to apply favourably to
avail the Defendant.
44. With respect to the
Defendant’s assertion that the
area in dispute falls outside
the Nungua Traditional Stool
area, it is the Defendant who
carries the burden of producing
credible and admissible evidence
to substantiate his claim.
As was held by the Supreme Court
in Re: KRAMS (Decd.) YANKYERAH
VRS. OSEI – TUTU (1989 – 90) 1
GLR 638.
“In civil trials, although the
burden of proof lay on the one
who must succeed in the action,
it shifted in the course of the
trial”. The Defendant in this
suit having set up a
counterclaim on the same facts,
he had a particular burden of
producing evidence to
substantiate his claim both as a
defensive duty and to prosecute
the counterclaim in order to
succeed”.
45. The nature of the
Defendant’s burden has been more
appropriately captured by the
dictum of Brobbey JSC in In Re
Ashalley Botwe farms ADJETEY
AGBOSU & ORS. VRS. KOTEY & ORS.
(2003 – 2004) SCGLR 420 where he
stated thus:
“The effect of sections 11(1)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows: A litigant
who is a defendant in a civil
case does not need to prove
anything; the Plaintiff who took
the Defendant to court has to
prove what he claims he is
entitled to from the Defendant.
At the same time if the court
has to make a determination of a
fact or of an issue, and that
determination depends on the
evaluation of facts and
evidence, the defendant must
realize that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination in his
favour.
The logical sequel to this is
that if he leads no such facts
or evidence, the court will be
left with no choice but to
evaluate the entire case on the
basis of the evidence before the
court, which may turn out to be
only the evidence of the
Plaintiff. If the court chooses
to believe the only evidence on
record, the Plaintiff may win
and the Defendant may lose…..”
46. How did the Defendant
contest Plaintiff’s claim and
prosecute his own counterclaim
by the evidence?
The Defendant testified for
himself. His evidence is that he
purchased the land in dispute
from one Dr. Anko Ankrah ‘DW1’
and tendered Exhibit ‘1’ to
support same. Exhibit ‘1’ is a
Deed of Assignment dated
18/9/2003 which recites the
assignor’s interest as having
originated from one Nii Azaria
Adjei Klu Head of Numo Nmashie
Family of Teshie Accra.
According to the Defendant when
he acquired the parcel, the area
was basically a forest but has
now finished developing same. He
further testified that in the
course of development they
received the summons (presumably
Defendant and his agents). But
there was no injunction ordering
that the development should
stop. He denied the Plaintiff’s
assertion that the land he
acquired from Dr. Anko Ankrah is
part of Nungua Stool land adding
that he believes the Numo
Nmashie family obtained a
judgment which declared them as
owners of the land. He urged the
court to make a finding in his
favour.
47. Asked under cross –
examination how would he
describe the parcel of land in
dispute, the Defendant’s answer
was that he did not know too
much about the description of
the land but remembers that two
plots away from the location in
dispute is the property of one
Laudina Mahama. The Defendant
admitted that he does not know
the owner of the two plots
adjacent to the parcel in
dispute. He denied a suggestion
by Plaintiff’s counsel that when
he went to the land there was a
wall structure put up by Ken
Tweneboah, Plaintiff’s assignor
and further denied that the said
Ken Tweneboah had registered his
interest in the subject matter.
Asked whether he stood by his
pleadings that his grantor Dr.
Anko Ankrah got his interest
plotted at the Lands Commission
after an order of the High Court
the Defendant said he did not
know.
48. I will for purposes of
clarity reproduce parts of
answers the Defendant gave
during cross – examination by
Plaintiff’s counsel.
“Q. Also in your statement of
defence, you denied that the
land is Nungua Stool land?
A. Yes My Lord.
Q. Indeed you affirmed your
statement of defence that the
land is situate at Tessa?
A. Tessa also
known as Ajirigano.
Q. Is Tessa and
Ajirigano the same?
A. I believe so
my Lord.
Q. In your statement of
Defence particularly paragraph
26 there is a schedule of
villages which has been attached
as villages falling under your
head grantor’s land.
In the said list Tessa is named
as a village group and Ajirigano
is named as a separate village
A. My Lord I
wouldn’t know that.
Q. Have you seen
Tessa No. 19?
A. Yes My Lord.
Q. Have you been
Ajirigano No. 42?
A. Yes My Lord.
Q. That means the
two are different not so?
A. My Lord the two are
different but the whole area is
Tessa. And most people and I
know the whole area as
Ajirigano.
Q. Also in your statement
of defence in denying the
Plaintiff’s claim that the land
is situate at Ajirigano you said
it is situate at Tessa did not
say it is also known as
Ajirigano?
A. My Lord I believe that I
said that the whole area is
Tessa but some people call it
Ajirigano”.
49. From the Defendant’s
answers under cross –
examination, there is a certain
lack of certainty about the
exact location of the land he
claims to be at Tessa. Comparing
his evidence with that of ‘PW1’
it becomes clear that while the
Defendant’s testimony is
inconsistent with his own
pleading with respect to the
location of the land in dispute
being at Tessa, the Plaintiff
and his witnesses are consistent
that Tessa and Ajirigano are
geographically two locations
distinctly apart.
50. The law is stated in the
case of APPIAH VRS. TAKYI (1982
– 83) GLR CA is that where one
party’s evidence amounts to a
departure from his pleadings and
the evidence of the other party
is consistent with the pleadings
the latter is to be preferred.
51. In the course of cross
examining the Defendant, the
following evidence crucial and
relevant to the Defendant’s
defence was also elicited.
“Q. Now, Mr. Osei in your
statement of defence you were
saying that the interest of your
grantor Dr. Anko Ankrah in the
land was plotted pursuant to a
court order. Is that true?
A. Yes My Lord.
Q. And that the court order
compelled the Lands Commission
to plot Dr. Anko Ankrah’s
interest?
A. Yes My Lord.
Q. And this court
order was made in November 2006.
A. Sorry repeat
the question.
Q. The court order based
upon which your grantor’s
interest was plotted at the
Lands Commission was made in
November 2006?
A. Yes My Lord.
Q. You have also said in
your statement of defence
particularly paragraph 24 that
it was after that order that the
Lands Commission confirmed that
they were going to plot, that is
by letter dated 1st
March 2007, they were going to
plot the land in the name of
your grantor……”
A. Yes My Lord.
Q. So at least before
November 2006 the land subject
matter in this suit was not
plotted in the name of your
grantor?
A. Sorry repeat
the question.
Q. I am saying that at
least before November 2006 the
land subject matter of this suit
was not plotted in the name of
your grantor?
A. My Lord I
donot know.
Q. So a search that would
have been conducted at the Lands
Commission before November 2006
at least would not have revealed
any transaction in the name of
Dr. Anko Ankrah?
A. My Lord I
donot know”.
52. Two consequences have
arisen from the Defendant’s
answers to questions under cross
– examination. Firstly, the
Defendant in answers to cross –
examination denied logical
inferences from his own pleading
of facts in this suit. Some of
his denials clearly donot stand
the test of commonsense. He did
not impress me as a witness who
is truthful and worthy of belief
and to that extent his evidence
is suspicious and lacks
credibility.
53. The obvious factual
position is that before November
2006, Defendant’s grantors name
had not been plotted by the
Lands Commission as holding any
interest in the area in dispute
yet by the said period in time,
Defendant had commenced
development of the subject
matter and Plaintiff had issued
and served his writ of summons
which contains inter alia the
relief of perpetual injunction
to restrain the Defendant from
his alleged acts of continous
trespass unto the area of land
being claimed by the Plaintiff.
Will it be reasonable for the
Defendant to deny these factual
matters? I think not
54. Secondly, earlier in his
testimony the Defendant had told
the court that he caused
searches to be conducted between
2003 and 2004 by which date the
ruling directing his grantor’s
name to be plotted at the Lands
Commission did not exist same
having been made in 2006. His
deed of assignment was dated
18/9/05. By that date his
grantor’s name had not been
plotted in the records of the
Lands Commission. The writ in
this action was issued on
25/2/2005 at least 6 clear
months before the Defendant’s
assignment with respect to the
subject matter was purported to
have been made. The Defendant’s
evidence is that while no order
of interlocutory injunction to
stop him and his agents was made
and served on him his agents
were served with the notice of
this action immediately the
development started. Plaintiff’s
attorney’s unchallenged evidence
is that the Defendant’s workmen
were reported to the police for
causing unlawful damage. If
these events donot constitute
sufficient notice to the
Defendant about the Plaintiff’s
claim to the subject matter on
which he was engaged in his
development, I am unable to say
what else will be. I find that
the Defendant had sufficient
notice of the Plaintiff’s
conflicting claims to his and
ought to have been prudent or to
say the least diligent.
55. To that extent any plea
by the Defendant of any doctrine
in equity will not avail him if
his principal defence that the
subject matter belongs to the
Numo Nmashie family of Teshie
and that the case of KLU VRS.
AGYEMAN II supra operates as
estoppel per rem judicatam
fails. In my view, any such
equitable plea must also fail.
56. As I have observed
earlier Defendant’s defence from
the evidence of his grantor on
the strength of which he sets up
a counterclaim are twofold. One
is grounded on the principle of
estopell per rem judicatam in
terms of the judgment of the
Court of Appeal in KLU VRS.
AGYEMAN II supra.
57. The second, ground of
defence is factual and it is
based on the assertion that the
parcel of land in dispute falls
within the area covered by the
said judgment and consequently,
the disputed area is to put
simply Teshie and not Nungua.
58. Having evaluated the
evidence adduced by the
Plaintiff and found same
credible to cause the burden to
shift on the Defendant, I shall
proceed to do an evaluation of
the evidence of ‘DW1’ and ‘DW2’
together in order to determine
the key issue whether from the
evidence adduced by and for the
parties in this suit and upon a
proper balance of the
probabilities issue (i) set down
for determination in the
application for directions will
have to be determined in favour
of the Plaintiff or the
Defendant. To my mind, issues
(ii) and (iii) will be
determined together while issues
(iv), (v) and (vi) are merely
consequential to the
determination of the three key
issues I have identified.
59. The said Dr. Anko Ankrah
who is Defendant’s assignor
testified for the Defendant to
whom he asserts he assigned two
plots of land at Tessa near
Ajirigano. His evidence is that
he purchased a parcel of land of
approximately 1500 acres which
includes the portion in dispute
in 1962. He referred to the
compensation claim which led to
the judgment in the KLU VRS.
AGYEMAN II CASE (IN RE:
ADJANCOTE ACQUISITION) claiming
that at the time he conveyed the
disputed land to the Defendant
it was virgin land.
60. He further testified that
it was he who alienated some
parcels of land around the area
in dispute. He stated that his
grantors took the Lands
Commission to court to compel
them to undertake a plotting of
the land and denied that the
parcel of land in dispute was
acquired from the Gborbu Wulomo.
Significantly, neither the
receipt nor any document
evidencing his purchase was
tendered in evidence since the
‘DW1’ did not say the grant to
him by the Numo Nmashie was a
customary grant. The site plan
which the Lands Commission was
ordered by the Court of Appeal
to use in plotting the Numo
Nmashie holding was also not
tendered in evidence to give the
Plaintiff the opportunity to
admit or challenge same.
61. Under cross – examination
by the Plaintiff’s counsel,
‘DW1’ identified Exhibits ‘T’
and ‘U’ a writ and statement of
claim tendered through him at
the instance of the Head of the
Numo Nmashie family of Teshie in
which inter alia a declaration
is sought by the Defendant’s
head grantors to declare leases
dated 13/9/89, 20/5/90 and
20/1/90 as forgeries and of no
effect.
In the course of cross –
examination of ‘DW1’ the
following was recorded in
evidence.
“Q. Now look at Exhibit ‘U’
(Statement of Defence filed by
‘DW1’ in Suit No. E1/13/08) when
was it filed?
A. It was filed
April 17 2008.
Q. This was filed
by your lawyer on your behalf?
A. Yes My Lord.
Q. Now look at the last
page and read your last relief
that is relief ‘J’.
That is the
relief you were seeking as at
17/4/2008
A. Yes My Lord.
Q. Now in your evidence,
you testified that your grantors
acquired the land in two modes?
A. My Lord I will then tell
you Numo Nmashie acquired the
land by purchase, by settlement
and then by conquest.
Q. Your evidence which is
on record shows that they
acquired the land through
purchase and the judgment of the
court.
A. My Lord if I have said
so, it is because of the
question. My Lord it was the
question at the time. I know
they purchased, by war
(conquest) and by settlement”.
62. The evidence of ‘DW1’
during cross – examination
turned out clearly to be
inconsistent with his evidence
in chief. He prevaricated when
he departed from his earlier
testimony that his head grantors
acquired their land, part of
which is the subject matter of
this suit by purchase and but
later added two crucial modes of
traditional acquisition i.e.
conquest and settlement. In his
answers under cross –
examination, no particulars
relative to dates of events in
history, tribe, clan or family
conquered was provided in
contrast with the evidence of
‘PW1’ the donee of the power of
attorney from the Gborbu Wulomo
who supported his evidence with
documents of historical records,
and was not cross – examined on
same. I prefer the evidence of
the ‘PW1’ on the issue of
acquisition as more credible and
more consistent supported by
documents of public records than
the inconsistent version which
‘DW1’ wants this court to
believe.
63. The Defendant and his
witnesses have failed to
establish in accordance with the
standard prescribed by statute
and case law that the parcel of
land in dispute falls within the
area of land adjudged to belong
to the Numo Nmashie family of
Teshie per the In Re: ADJANCOTE
ACQUISITION case on which his
defence and counterclaim
entirely lies.
64. What is more, the
evidence of ‘Dw2’ did not assist
Defendant’s case. ‘DW2’ by
coincidence is the secretary to
the Gborbu Wulomo the
Plaintiff’s head grantor who
volunteered to give evidence for
the Defendant in this suit. His
testimony is that some 4 years
ago the Gborbu Wulomo requested
a favour from ‘DW1’ to
facilitate his celebration of a
festival whereupon ‘DW1’
promised to give the Gborbu
Wulomo 4 plots of land which
plots of land the Gborbu Wulomo
requested to be sold and the
proceeds turned over to him. It
is two of these 4 plots
purported to have been sold and
the proceeds given to the Gborbu
Wulomo which have turned out to
be the subject matter of this
suit the Defendant being the
purchaser of same. The witness
confirmed the encounter at the
police station earlier mentioned
in the testimony of Plaintiff’s
attorney but added that at the
time, Defendant’s building had
reached lintel level and that he
remembered Plaintiff’s attorney
offered ‘DW1’ $1,000.00 which
was later refunded to
Plaintiff’s attorney. No reason
was given in the evidence on
record for this offer which was
said to have been refunded to
the Plaintiff’s attorney.
65. During cross –
examination of ‘DW2’ Exhibits
‘V’ and ‘W’ were tendered
through him which are a press
release challenging claims by
Teshie of Stool and family lands
and a letter addressed to the
Administrator of Stool lands
demanding details of ground rent
accruing to the Nungua Stool
respectively. The witness
admitted under cross –
examination that he was in court
to testify on a personal
transaction involving the Gborbu
Wulomo and not for the Nungua
Traditional Stool.
In the course of cross –
examination of ‘DW2’ by the
Plaintiff’s counsel the
following evidence was elicited:
“Q. Now do you
know Pheebe Cooper?
A. My Lord the Pheebe
Cooper I know is not the real
name of the person. But I know
her to be Caroline Nii Amassah.
Q. And this Caroline Nii
Amassah is also known as Pheebe
Cooper?
A. Yes My Lord”.
66. In further cross –
examination these exchanges were
recorded between Plaintiff’s
counsel and ‘DW2’.
“Q. Now when did
Pheebe Cooper die?
A. My Lord it
will be between 4 to 5 years
ago.
Q. Precisely
2003?
A. Yes My Lord.
Q. Are you aware that in
1992 Nungua Stool through the
Wulomo made a grant of land to
Pheebe Copper?
A. Yes My Lord.
Q. And the grant that was
made to Pheebe Cooper is the
subject matter of this dispute?
A. My Lord for that I donot
know. Only now that you are
saying I have heard.
Q. I am suggesting to you
that the grant made to Pheebe
Cooper by the Nungua Stool is
the subject matter of this
dispute?
A. My Lord I
donot know earlier.
Q. Now are you also aware
that Pheebe Cooper subsequently
made the grant of her land to
other parties.
A. My Lord for that I don’t
know. Because that is her
personal affair. So I don’t
know.
Q. But you have testified
to this court that when you went
to the police station Pheebe
Cooper was invited and she was
at the police station?
A. My Lord she did not come
herself. By that time she was
dead. But somebody represented
her.
Q. I said you testified
before this court that at the
police station Pheebe Cooper was
there?
A. Yes My Lord.
Q. In what capacity was
Pheebe Cooper invited to the
police station. Why was she
there?
A. She was there
claiming some portion of land in
that area.
Q. And it was
this land that the Nungua Stool
granted her.
A. Yes My Lord.
Q. So you are aware that
once the dispute was in respect
of this piece of land situate at
Tessa or whatever you call it,
the grant that was made to
Pheebe Cooper is the same as the
grant that is in dispute today.
A. Yes my Lord, I said the
other day that the 5 parties I
mentioned the other day, all of
them were claiming land at that
place. And Pheebe Cooper was
also among the people claiming
the land.
Q. So now you are aware
that land in dispute is the land
the Stool granted to Pheebe
Cooper. You have just testified
to that?
A. Yes My Lord.
Q. Now, the Wulomo in
collecting the money from Dr.
Anko Ankrah, you testified could
not have known that it was his
own land that was going to be
sold and given to him?
A. That is
correct.
Q. So it will not be right
for you or any fellow to tell
this court that the land in
dispute was what was sold to the
Defendant and the proceeds paid
to the Wulomo?
A. Yes My Lord. It is only
after I have come here that I
have got to know, that was the
land which was sold and the
proceeds was given to the Gborbu
Wulomo.
Q. So that if you and the
Wulomo had known from the onset
that the land that was allegedly
sold to the Defendant and the
proceeds given to the Wulomo is
the same land that the Wulomo
had earlier granted to Pheebe
Copper you would not have been
here to testify?
A. Yes My Lord but I have
some explanation. I think if we
had known earlier, I think we
would have seen the court to see
how to settle it outside the
court”.
67. Under further cross –
examination the following
evidence was elicited from
‘DW2’.
“Q. Now, Nii you are aware
that the Defendant and for that
matter the Defendant’s grantor
are claiming that the land is
Teshie land.
A. My Lord I am aware of
that. My Lord the whole thing is
that if we have known all these
things even the time I sent the
letter to Madam (referring to
Plaintiff’s lead counsel Mrs.
Justina Tete - Donkor) and she
has honoured the invitation. I
think everything will come to an
end. We would have settled this
matter.
Q. So now you are talking
about settlement here and the
claimants are not both from
Nungua. Some are Teshie and
others in Nungua. Now if you
settle it are you going to
settle it as land belonging to
Nungua or as land belonging to
Teshie.
A. My Lord I will
settle it as Nungua land”.
68. When later in the course
of cross – examination, Exhibit
‘X’ was shown to the witness
this is what was received in
evidence before admission.
“Q. Now you have admitted
that this land was an earlier
grant to Pheebe Cooper. Can you
have a look at this document?
Document that was the grant made
to Pheebe Cooper?
A. My Lord I have seen the
signatures which I have to
accept but this is a photocopy.
Asked by the court if ‘DW2’
doubted Exhibit ‘X’ before it
was admitted. The witness
answered.
“My Lord Not
at all”
69. Through the same witness
‘DW2’ Exhibit ‘Y’ was tendered.
The said exhibit was identified
through the signature of the
Gborbu Wulomo is the letter of
consent made to the Lands
Commission with respect to the
deed of assignment between
Pheebe Cooper and Ken Tweneboah,
Plaintiff’s grantors.
70. Why has the court devoted
so much time to exhaustively
reproduce the cross –
examination of ‘DW2’ by
Plaintiff’s counsel? The reason
is not far fetched. Firstly, the
evidence of ‘DW2’ has thrown
more light on the averments
contained in the second amended
Statement of Defence filed by
the Defendant on 15/1/09
particular paragraphs 12 – 28
thereof.
Secondly, being a witness for
the Defendant the nature of his
evidence in the determination of
issue (i) set down for trial
became crucial. That issue is
“Whether or not the land in
dispute forms part of Nungua
Stool land”.
71. Without a doubt, the
evidence of ‘DW2’ had
corroborated the evidence of
‘PW1’ on the issue of allodial
ownership of the land in dispute
between the Nungua Stool and
Numo Nmashie family of Teshie
favourable to the Nungua
Traditional Stool. The
established rule on
corroboration is espoused in the
case of BANAHENE VRS. ADINKRA
(1976) 1 GLR 346 where the Court
of Appeal emphasised the rule
that “where the evidence of
one party on an issue in a suit
was corroborated by a witness of
his opponent, whilst that of his
opponent on the same issue
remained uncorroborated even by
his own witness, a court ought
not to accept the uncorroborated
version in preference to the
corroborated one unless for some
good reason (which must appear
on the face of the judgment) the
court found the corroborated
version incredible or
impossible”. The rule
applied by Ollenu J. (as he then
was) in the case of TSRIFO VRS.
DUA VIII (1959) GLR p. 64 had
also been cited with approval in
OSEI YAW VRS. DOMFEH (1965) SC
GLR 418 and ASANTE VRS. BOGYABI
(1966) GLR 232 SC. The rule was
applied with approval by the
Supreme Court in MANU VRS. NSIAH
(2005 – 2006) SCGLR 25
particularly at page 33.
72. In the instant suit, the
evidence of ‘DW2’ during cross –
examination parts of which I
have reproduced in this judgment
corroborates the evidence of
Plaintiff’s attorney
particularly the evidence of
‘PW1’ on the issue of whether
the land in dispute falls within
the Numo Nmashie family of
Teshie land area or the Nungua
Traditional Stool land area.
Since I have no reason from the
evidence to find the
corroborative evidence of ‘DW2’
incredible or impossible on the
strength of the evidence and
that of ‘PW1’ which stood
unchallenged. I find that the
subject matter of this dispute
falls within the Nungua
Traditional Stool land area and
I hereby so hold.
73. I shall now deal with the
issue “Whether or not the
judgment of the Court of Appeal
in Civil Appeal 49/80 i.e. KLU
VRS. AGYEMAN II supra adjudged
and declared the Numo Nmashie
family the owner of the land in
dispute”.
74. As I have earlier said,
the judgment being referred to
as Civil Appeal No. 49/80 by the
parties and counsel in this suit
is infact the case of IN RE:
ADJANCOTE ACQUISITION KLU VRS.
AGYEMAN II delivered on 15th
December 1982 and reported in
(1982 – 83) GLR 852 – 863. As is
suggestive from the title the
subject matter of this suit
arose from the acquisition by
government of the Adjancote hill
for the construction of a
television station for the Ghana
Broadcasting Corporation. There
were three claimants, the Numo
Nmashie family of Teshie, The
Dowuona Family of Osu and the
Berekusohene of Akwapim. All
three parties led traditional
evidence after which evaluation
the then lands tribunal adjudged
the Respondent to be entitled to
payment of monetary compensation
for the land acquired. In
setting aside the judgment of
the land tribunal, and allowing
the appeal, the Court of Appeal
held in favour of the Numo
Nmashie family of Teshie.
75. At page 855 of the report
Wiredu J. A. (as he then was)
said as follows:
“In the course of the hearing
of the appeal it became
necessary to order a plan in
order to identify the various
villages named in the
proceedings in relation to the
acquired area. Mr. Lassey a
licensed surveyor of Ho was by
consent appointed to undertake
the survey and Exhibits CA1a and
CA.1b are the results of the
survey work undertaken by him.
He testified before us on
22/11/1982. His evidence shows
that (a) all the villages
within the vicinity of the
acquired area were
occupied by members of the
Appellants followers ….. This
evidence formed the additional
materials place before us for
the hearing of the appeal”.
At page 858, of the
report it was stated thus:
“Now what are the undisputed and
admitted facts in the instant
case? These are (a) that
the appellants people own and
occupy all the villages very
close to the acquired area
and (b) the admission by the
Respondent that Ojo Ablorh the
first witness for the respondent
who on the undisputed evidence
is a member of the appellant’s
followers in farming in the
acquired area see Exhibit CA
1b”.
76. In view of the emphasis
placed on this judgment by the
Defendant in his defence and
counterclaim, I have thoroughly
read this judgment in order to
establish whether or not it
offers Defendant a good defence
to the Plaintiff’s action and
also whether the plea of
estopell per rem judicatam will
succeed. I donot find in the
judgment any statement
confirming the claim by the
Defendant that all the 43
villages referred to in
paragraphs 9, 12, 15 of the
Defendant’s second amended
Statement of Defence belong to
the Numo Nmashie neither will I
be persuaded to consider and
follow any rulings on mandamus
in Suit No. MISC 1323/2001 and
in Suit No. 603/2002 nor any
consent judgment in Civil Appeal
No. H1/122/2004 in the absence
of the Certified Copy of the
record of proceedings in the
said suits they being unreported
decisions which may have turned
out based on the peculiar facts
and circumstances in the said
suits. To that extent, I shall
attach no weight to Exhibits 5,
5A to 5F which in any case never
declared the land in dispute as
belonging to the Numo Nmashie
family.
77. There being evidence
adduced at this trial, that the
area of acquisition in the Re:
Adjancote Acquisition
Compensation claim is several
miles away from the location of
the subject matter in dispute, I
am at loss as to how any person
would construe the words “villages
within the vicinity of the
acquired area” to include
villages and settlements several
miles apart belonging to
persons, families and or stools
which did not participate in the
compensation claim and the
appeal which followed.
78. It is in the light of the
foregoing that I will reject any
suggestion that the decision of
the Court of Appeal in the KLU
VRS. AGYEMAN II RE: ADJANCOTE
ACQUISITION adjudged and
declared the land in dispute as
belonging to Numo Nmashie family
of Teshie. I find that it did
not, and I so hold.
79. Before I examine and
determine Defendant’s
counterclaim let me deal with
the legal issue of estopell
perem judicatam raised by the
Defendant in relation to the
decision in the RE: ADJANCOTE
ACQUISITION KLU VRS. AGYEMAN II.
Having found that the Court of
Appeal decision cannot be
construed to have affected the
area in dispute it would have
logically followed that any
determination of issue (iii)
i.e. “Whether or not the
judgment pleaded by the
Defendant is an estoppel on any
claims by the Plaintiff in
respect of the land in dispute”
would have on the same score
been determined in favour of the
Plaintiff.
80. I shall however proceed
to do so because of the
Defendant’s counterclaim in
order to establish whether if
the Defendant relied on the RE:
ADJANCOTE ACQUISITION in good
faith as the basis of his
defence and counterclaim, the
plea of estopell would avail him
arising from the legal effect of
the said judgment on the subject
matter in dispute.
81. The rule of estoppel per
rem judicatam requires that
where a final decision is given
by a court of competent
jurisdiction, the parties cannot
be heard to contradict that
decision in any subsequent
litigation between them with
respect to the same subject
matter.
82. As a plea, the decision
operates as a bar to subsequent
litigation. As evidence, it is
conclusive between the parties.
Authorities abound on the basis
on which the doctrine of
estoppel per rem judicatam can
operate.
83. For the rule to apply,
the parties, issues, and subject
matter must be the same in the
previous case as those in the
action on which the plea is
raised. A finding that the
doctrine of res judicata applies
in a particular instance must be
grounded on certainty, that is
in order to succeed on the plea,
all the evidence required must
be unequivocal and certain and
the claims clarified and
ascertained. The plea applies
except in special cases not only
on the points upon which the
court was actually required by
the parties to form an opinion
and pronounce judgment, but to
every point which properly
belonged to the subject of
litigation, and which the
parties, exercising reasonable
diligence, might have brought
forward at that time.
84. There is no doubt
whatsoever that the decision of
the Court of Appeal in the RE:
ADJANCOTE ACQUISITION case,
arose from a decision of the
Land Tribunal in which the
Plaintiff’s head grantors did
not participate and therefore
the basic requirement for the
principle of estopell per rem
judicata to apply against the
Plaintiff and his grantors does
not exist, and in consequence
the judgment cannot be held to
operate as estoppel against the
interest of the Nungua
Traditional Stool granted that
the said judgment affected the
area in dispute which as I have
already held, it did not.
85. In the case of SAM VRS.
NOAH (1987 – 88) 2GLR CA.213 the
Court of Appeal stated even in
circumstances where the parties
and subject matter are the same,
there are exceptions to the
application of the principle of
estoppel per rem judicatam when
it held thus:
“The relief claimed in the first
action was for damages for
trespass, whereas the action
under appeal was one for
declaration of title to land.
The fact that the two actions
were fought between the same
parties and related to the same
land did not per se raise the
issue of estoppel for the
reliefs sought by the two
actions were not the same in
law”.
86. In the case of POKU VRS.
FREMPONG (1972) 1GLR 230 at 234
CA. of Crabbe J. A. (as he then
was) while expatiating the
proposition he made in the case
of ROBERTSON VRS. REINDORF 1971
2GLR 289 at p.302 CA. stated
thus:
“………….Estoppel deriving from a
former judgment is of two
distinct kinds (i) “Cause of
action estoppel, which arises
between parties by reason of a
judgment given in favour of one
and against the other with
respect to the cause of action
relied upon in the first
proceedings:
(ii). Issue estoppel, which is
an extension of the former, and
it means that when an issue of
fact has been raised in any
action between two litigants and
decided in favour of one, then
in any future litigation between
the same parties, the loser will
not be permitted to dispute that
fact…………”
87. As I have found earlier
the Plaintiff’s grantors were
not parties to the RE: ADJANCOTE
ACQUISITION CLAIM and the
subsequent proceedings on
appeal. Having also found that
the subject matter of this suit
falls outside the area of land
in the decision of the Court of
Appeal, in the said case, the
principle of estoppel per rem
judicatam cannot operate against
the Plaintiff and his head
grantors. It would be invidious
to hold otherwise.
88. The Defendant has set up
a counterclaim seeking releifs
which I have fully reproduced in
this judgment. On the basis of
my findings in this suit Reliefs
1, 4 and 5 of the counterclaim
must fail and they are
accordingly dismissed. Reliefs 2
and 3 also fail for the same
findings hereinbefore made and
further for the reason that Dr.
Anko Ankrah in whose favour I am
urged to make those orders is
not a party to this suit and no
court will be misled into making
a pronouncement in favour of a
person for declaration of title
to land when that person is not
a party to the said suit. The
said endorsements are totally
misconceived and ought to be
dismissed and are hereby
dismissed.
89. For all the reasons I
have set out in this judgment
the Plaintiff succeeds, and I
accordingly grant the reliefs
endorsed on the writ of summons
as follows:
(i). Declaration of title
to all that piece or parcel of
land lying situate and being at
Nungua New Town, Accra stamped
as LVB No. 7950/04 and
registered as No. 231/2005 at
the Lands Registry.
(ii). I shall award
GH¢5,000.00 damages for trespass
in favour of the Plaintiff.
90. Before I make orders with
respect to reliefs 3, 4 and 5
endorsed on the Plaintiff’s
writ, let me consider a plea
made in Defendant’s counsel
written address urging me to
apply the provisions of the Land
Development (Protection of
Purchasers) Act 1960 Act 2
favourably to the Defendant
herein. By its very wording, the
provisions of the operative part
of Act 2 is not a defence to an
action in land. But where
recovery of possession is
sought, it may be invoked by the
loser as an aide to enable the
losing party retain possession
while the victorious party is
compensated to a quantum
commensurate with the market
value of the subject matter.
I shall for the purposes of
emphasis reproduce the parts of
Act 2 which are still in force.
Section 1(1) states:
Where
“(a). a person (in this
section referred to as the
purchaser) has taken a
conveyance of land in a
prescribed area at any time
after 31st December
1944 (Whether before or after
that the date on which the area
became a prescribed area).
(b). the purchaser or a
person claiming through him has
in good faith erected a building
on the land, and
(c). proceedings are brought
to obtain possession order in
relation to the land on the
ground that a person other than
the purchaser or a person
claiming through him is entitled
to the land;
The High Court, where it
considers that if this Act had
not been passed the possession
order would fail to be made by
reason that the conveyance taken
by the purchaser did not operate
to confer on the purchaser the
title to the land, but that to
make the order would cause
hardship and injustice to the
person against whom it would
fall to be made, may instead of
making the possession order,
make an order providing that the
conveyance taken by the
purchaser shall be considered
for all purposes to have
operated to confer on the
purchaser the title to the
land”.
91. The Operative words in
subsection 1(b) of the Act is
“good faith”. From my
examination of the evidence
adduced at this trial I donot
think the Defendant acted in
good faith. The provisions of
Act 2 ought to be applied with
caution. It ought to be a shield
for the innocent and not a flag
of surrender for the
intransigent. To my mind, I
donot think the Defendant herein
was actuated by good faith when
notwithstanding the Plaintiff’s
protestations he continued to
develop the subject matter for
the reason that the Plaintiff
had not sought to restrain him
by an order interlocutory
injunction. I shall refuse the
invitation to apply the
provisions of Act 2 in aid of
the Defendant. To do otherwise,
will only give judicial support
to the common yet uninformed
belief that one can develop any
land with impunity up to lintel
level and title to the land will
automatically pass by operation
of law. That belief is a fallacy
and must remain to be so.
In the case of NTEM VRS.
ANKWANDAH (1977) 2 GLR 452 CA.
Apaloo CJ said at page 465 as
follows:
“The court’s disinclination to
grant an injunction to restrain
the defendant from building on
the land raises no equity in
favour of the latter. On the
contrary, the evidence clearly
indicated all steps the
Respondent took to preserve the
land in status quo. I cannot see
how the court’s decision on this
temporary relief can be said to
provide the Defendant with any
excuse for proceeding to expend
substantial sums on land whose
possession was being sought
against him”.
In the words of Apaloo CJ “……
the courts should firmly set its
face against any use of Act 2
which would make it a weapon in
the hands of the rich for the
exploitation of the poor”.
The Learned late Chief Justice
concluded:
“I should have thought in view
of the difficulty in predicting
the result of land litigation in
this country, any lawyer of
average competence would advise
his client to stay his hand
until the resolution of the
issue of title or take the
consequences”.
This wise counsel was as good
then as it is today. The conduct
of the Defendant in the instant
is similar to the conduct of the
Appellant in the NTEM VRS.
AKWANDAH case cited above.
92. Against this background,
and for all the reasons I have
earlier advanced in this
judgment, I order the following
in terms of reliefs 3 and 4 of
the reliefs endorsed on the
writ.
(i). Let the Plaintiff be
entitled to recover possession
of the subject matter of this
suit as prayed.
(ii). I hereby grant an
order of perpetual injunction
restraining the Defendant, his
agents, assigns and workmen from
going on0 to the land and from
interfering with Plaintiff’s
possession of his land.
By Court: I shall
now hear counsel on costs.
Counsel for Plaintiff:
I ask for GH¢5,000.00 costs.
Counsel for Defendant:
I leave it to the court’s
discretion.
By Court: I award
costs of GH¢4,000.00 in favour
of the Plaintiff.
Mrs. Justina Tete –
Donkor with Francis Achibonga
(For Plaintiff)
Mr. Benjamin Quornooh
With Richard Bobison
(For Defendant)
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT.
|
