|
Land -
Declaration of title - Ownership
- Recovery of possession Whether
or not judgment is against the
weight of evidence. - Whether or
not there was no dispute
concerning the boundaries -
HEADNOTES
The plaintiff
commenced the action by writ
initially against the 1st
defendant/
appellant/
respondent (hereinafter simply
referred as 1st
respondent). The 2nd
and 3rd respondents
were later joined to the suit.
The crux of the plaintiff’s
claim was for a declaration of
title to lands described as
Oshiokpo lands covering an
approximate area of 777.696
acres as land belonging to the
Osuwem Family of Prampram which
family plaintiff represents. The
respondents denied the
plaintiffs claims and by their
amended statement of defence and
counterclaim sought a
declaration of title to the land
known as Nii Nartey Borboryo
family lands at Oshiokpo at
Dahwenya measuring approximately
1,561.932 acres or 632.114
hectares more or less. The
dispute at the trial high court
was litigated between the
plaintiff and the 2nd
and 3rd respondents
with the 1st
respondent as a nominal
defendant. Also at the trial,
the 1st respondent
institute did not give evidence
but merely relied on the 2nd
and 3rd respondents
being the grantors of the
disputed land to the institute.
The trial court at the close of
hearing entered judgment for the
plaintiff on his claims as afore
mentioned On appeal by the 2nd
and 3rd respondents,
the Court of Appeal reversed the
decision of the High Court which
it set aside and upheld the
counterclaim by the respondents
in its entirety. As a result,
judgment was entered for the 2nd
and 3rd respondents.
HELD
In
conclusion, the respondents led
sufficient evidence to clearly
identify their land which
accorded with their pleadings.
This is unlike the plaintiff who
failed to call significant and
material witnesses even after
leading evidence contrary to his
own pleadings In our view
therefore, the respondents have
on the whole succeeded in
leading sufficient evidence in
proof of their counterclaim on
the preponderance of
probabilities as rightly
determined by the appellate
court. In the event the appeal
fails and is dismissed. The
decision of the Court of Appeal
is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Survey
(Supervision and Approval of
Plans) Regulations, 1989
L.I.1444,
Illiterates
Protection Act, 1912 Cap 262
High Court
Civil Procedure Rules 2004 CI
47,
CASES
REFERRED TO IN JUDGMENT
Tuakwa v
Bosom (2001-2002) SCGLR 61
Quarcoopome v
Sanyo Electric Trading Co. Ltd
(2009) SCGLR 213
Oppong v
Anarfi (2011) SCGLR 556
Agyei Osae &
Ors vs Adjeifio & Ors
(2007-2008) SCGLR 499
Tetteh v
Hayford (2012) SCGLR 417
Kwabena v
Atuahene (1981) GLR 136
Anane v
Donkor (1965) GLR 188 at p 192
Ackah v
Pergah Transport Ltd (2010)
SCGLR 731
Dam vs Addo
(1962) 2 GLR 200, SC. .
Appiah v
Takyi (1982-83) GLR 1
Owusu v
Tabiri (1987-1988) 1 GLR 287.
Republic v High Court Judge
(Fast Track Division) Accra; Ex
parte National Lottery Authority
(Ghana Lotto Operators
Association & Others Interested
Parties [2009] SCGLR
390
In re Kodie
Stool; Adowaa v Osei (1998-1999)
SCGLR 23
Duodu vs
Adomako & Adomako (2012) 1 SCGLR
198
Barclays Bank
Ghana Ltd vs Sakari (1996-1997)
SCGLR 639
Appiah v
Takyi (1982-83) GLR 1,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
J.B. AKAMBA
COUNSEL
YAW OPOKU
ADJAYE WITH HIM TETTEH JOSIAH
FOR THE PLAINTIFF/ RESPONDENT/
APPELLANT.
ROCKSON
NELSON DAFEAMEKPOR FOR THE 2ND
AND 3RD DEFENDANTS
/APPELLANTS/ RESPONDENTS.
JUDGMNET
AKAMBA JSC;
On 14th
June 2012, the Court of Appeal
by a unanimous decision
overturned the judgment of the
High Court Accra which had
granted the reliefs sought by
the plaintiff/
respondent/appellant who shall
hereinafter be referred to
simply as the plaintiff.
Aggrieved by this outcome, the
plaintiff has filed the present
appeal to this court.
BRIEF FACTS
The plaintiff
commenced the action by writ
initially against the 1st
defendant/
appellant/
respondent (hereinafter simply
referred as 1st
respondent). The 2nd
and 3rd respondents
were later joined to the suit.
The crux of the plaintiff’s
claim was for a declaration of
title to lands described as
Oshiokpo lands covering an
approximate area of 777.696
acres as land belonging to the
Osuwem Family of Prampram which
family plaintiff represents. The
respondents denied the
plaintiffs claims and by their
amended statement of defence and
counterclaim sought a
declaration of title to the land
known as Nii Nartey Borboryo
family lands at Oshiokpo at
Dahwenya measuring approximately
1,561.932 acres or 632.114
hectares more or less.
The dispute
at the trial high court was
litigated between the plaintiff
and the 2nd and 3rd
respondents with the 1st
respondent as a nominal
defendant. Also at the trial,
the 1st respondent
institute did not give evidence
but merely relied on the 2nd
and 3rd respondents
being the grantors of the
disputed land to the institute.
The trial court at the close of
hearing entered judgment for the
plaintiff on his claims as afore
mentioned
On appeal by
the 2nd and 3rd
respondents, the Court of Appeal
reversed the decision of the
High Court which it set aside
and upheld the counterclaim by
the respondents in its entirety.
As a result, judgment was
entered for the 2nd
and 3rd respondents.
GROUNDS OF
APPEAL
In this
court, the plaintiff has filed
the following grounds of appeal
against the decision of the
court of appeal, namely:
(i)
The
learned justices of the Court of
Appeal erred in law by failing
to consider adequately or at all
the case of the
plaintiff/respondent/appellant.
(ii)
The
learned justices of the Court of
Appeal erred in law in holding
that the plaintiff had relied on
exhibit B and B1 as the root of
his family’s title to land.
(iii)
The
learned justices of the Court of
Appeal erred in law in holding
that exhibit A had no probative
value.
(iv)
The
learned justices of the Court of
Appeal erred in law in holding
that the trial judge did not
evaluate exhibits 4, 5, 6 and
11.
(v)
The
learned justices of the Court of
Appeal erred in law in holding
that the 2nd and 3rd
defendants had proved their
counterclaim.
(vi)
The
judgment is against the weight
of evidence.
ANALYSIS OF
GROUNDS
Grounds (i),
(ii), (iii) and (vi).
The
appellants have spelt out
specific instances or complaints
of dissatisfaction with findings
of fact and the law allegedly
made by the Court of Appeal in
the grounds (i) to (v) (supra).
They have also included a
general or omnibus ground (vi)
which in the circumstance
appears superfluous. This may
well be within the appellant’s
options in his desire to leave
no stone unturned to articulate
forcefully his displeasure about
the appellate court’s decision
which went against him. Be that
as it may, we would consider
grounds (i) to (iii) and (vi)
together since they bear on the
common accusation of failure to
evaluate the facts and law in
relation the plaintiff’s case
adequately.
In his
arguments in support of these
grounds the plaintiff urged that
the court of appeal did not deal
fairly and impartially in its
evaluation of the submissions
made on its behalf in support of
their claim. Plaintiff
emphasized that the judgment of
the court gives one the
impression that consideration
was given only to arguments
advanced by the respondents
herein whilst the arguments by
the plaintiff were totally
ignored. Such one sided judgment
could not have done justice to
the parties and ought to be set
aside, plaintiff urged.
Plaintiff gave as an example
that whereas it might be true
that his (plaintiff’s)
description of the boundaries of
the land in dispute did not
tally with his description of
the boundaries in either the
writ or statement of claim, yet
it appeared there was no dispute
concerning the boundaries to
warrant the position taken by
the appellate court.
This,
according to plaintiff was
because the only denial of the
boundaries given by the
plaintiff in paragraph 4 of his
statement of claim is that made
in paragraph 5 of the statement
of defence of the 1st
respondent who was only a
nominal defendant. The plaintiff
further argued that the two main
protagonists in the suit the 2nd
and 3rd respondents
did not mention paragraph 4 of
the statement of claim nor deny
it hence no issue was joined
between the parties on the issue
of boundaries. The argument
concluded that it was wrong
therefore for the appellate
court to arrive at the
determination that issue was
joined on the question of the
boundaries of the land and to
proceed to dismiss the
plaintiff’s claim on that basis.
This court
has stated in numerous cases
such as Tuakwa v Bosom
(2001-2002) SCGLR 61 @ 65;
Quarcoopome v Sanyo Electric
Trading Co. Ltd (2009) SCGLR 213
@ 229; Oppong v Anarfi (2011)
SCGLR 556 that an appeal is by
way of re-hearing, particularly
where the appellant alleges as
in the omnibus ground that the
decision of the trial court is
against the weight of evidence.
In such a case it is incumbent
on an appellate court such as
this, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision
so as to satisfy itself that, on
a preponderance of
probabilities, that the
conclusions of the trial judge
are reasonably or amply
supported by the evidence.
It would be
convenient to determine first
the plaintiff’s claim that no
issue was joined on the identity
of the boundaries of the
respective claims of the
parties. It is only upon being
satisfied that issues had been
joined that consideration can be
given as to whether the
plaintiff’s duty to lead
evidence in proof of the
identity of the land had been
satisfied.
Frankly
speaking the record does not
support the plaintiff’s denial
on the point. The plaintiff
pleaded in his amended statement
of claim filed pursuant to order
of 22/08/2007 (see page 53 to 56
of ROA) in its paragraph 9 (1)
as follows:
“9 (i).
Declaration of title to all that
piece or parcel of land known as
the Oshiokpo lands bounded on
the North-East by the lessor’s
land measuring a total distance
of 2,047.2 feet, 1032.1 feet and
2,359 feet respectively more or
less on the North-West by the
Lessor’s land measuring a total
distance of 1878.7 feet, 3178.2
feet and 2,176 feet respectively
more or less on the South-East
by Lessors land measuring a
total distance of 1,936.7 feet,
1949.1 feet 1,767.7 feet and
4,727.8 feet respectively more
or less and on the South-West by
Lessor’s land measuring a total
distance of 4,690.0 feet and
1,481.8 respectively covering an
approximate area of 777.696
acres as land belonging to the
Osuwem family of Prampram.
(ii) Recovery
of possession of the entire
land.
(iii).
Damages for trespass ……..”
The 2nd
and 3rd respondents
in their amended statement
pursuant to order for leave of
court to amend dated 11/01/10
averred in their paragraph 22 as
captured from page 118 to 121 of
the record of appeal (ROA) that:
“ 22. The 2nd and 3rd
defendants aver therefore that
in view of the above averments
and historical facts they
maintain that the Oshiokpo lands
at Dawhenya the subject of this
suit is for their family the Nii
Nartey Borboryoe family and they
deny vehemently paragraphs 7, 8,
and 9 of the statement of claim
and contend that the Plaintiff
cannot and should not be
entitled to his relief.”
The averments
quoted above clearly belie the
obviously misleading and
unjustified assertions by the
plaintiff that no issue was
joined from the pleadings by the
2nd and 3rd
respondents on his claim for a
declaration of title to the
disputed land. The pleadings
quoted above clearly establish
that issue was joined between
the plaintiff and the 2nd
and 3rd respondents
on their respective claims.
Primarily, issue having thus
been joined, the plaintiff
assumed the obligation to
establish a requisite degree of
belief concerning his claim in
the mind of the tribunal of fact
or the court as provided by
section 10 (1) of NRCD 323. The
plaintiff’s situation in this
presentation is further
compounded by his own
ambivalence, evident in his
arguments in support of his
ground A in this appeal when he
stated at page 6 of his written
submission filed on 14/6/2013
that:
“One example
will suffice. It may be true
that the plaintiff described the
boundaries of the land in
dispute that did not tally with
his description of the
boundaries in either the writ or
the statement of claim. But
there appeared to be no dispute
concerning the boundaries of the
land in dispute.”
This tacit
admission by plaintiff’s counsel
of their failure to tally their
evidence at the trial to the
description of their boundaries
given in the writ or statement
of claim on the one part and his
assumption at the same time that
there was apparently no dispute
concerning the boundaries was
only meant as a ruse to excuse
him from his obligation to lead
credible and reliable evidence
in proof of his boundaries.
Unfortunately for the plaintiff,
his position is not borne by the
record which rather states the
contrary.
In an action
for declaration of title to
land, recovery of possession and
injunction, a plaintiff must
establish by positive evidence
the identity and limits of the
land he claims. (See Agyei Osae
& Ors vs Adjeifio & Ors
(2007-2008) SCGLR 499).
In any case
since the plaintiff is seeking a
declaration of title to land and
other reliefs, he will succeed
only if he is able to establish
the identity of the land in
question satisfactorily
according to law so as to
entitle him to the reliefs. The
onus of proof required by law as
regards the identity of land
would be discharged by meeting
the conditions clearly stated in
this court’s decision in
Tetteh v Hayford (2012) SCGLR
417 citing the case of
Kwabena v Atuahene (1981) GLR
136 thus: (i) the plaintiff
has to establish positively the
identity of the land to which he
claimed title subject matter of
the suit.
(ii)
Plaintiff also has to establish
all his boundaries
(iii) Where
there is no properly oriented
plan drawn to scale, which made
compass bearings vague and
uncertain, the court would hold
that the plaintiff had not
discharged the onus of proof of
his title.
The reasons
why the disputed land subject of
the claim must be clearly
identified are well stated by
Ollennu JSC (as he then was) in
Anane v Donkor (1965) GLR 188
at p 192 as follows: “Where
a court grants declaration of
title to land or makes an order
for injunction in respect of
land, the land the subject of
that declaration should be
clearly identified so that an
order for possession can be
executed without difficulty, and
also if the order for injunction
is violated, the person in
contempt can be punished. If the
boundaries of such land are not
clearly established, a judgment
or order of the court will be in
vain. Again, a judgment for
declaration of title to land
should operate as res judicata
to prevent the parties
re-litigating the same issues in
respect of the identical subject
matter, but it cannot so operate
unless the subject matter
thereof is clearly identified.
For these reasons a claim for
declaration of title or an order
for injunction must always fail
if the plaintiff fails to
establish positively the
identity of the land to which he
claims title with the land the
subject matter of the suit.”
In the
present suit, the plaintiff’s
description of the dimensions of
his family land totaling
approximately 777.69 acres
is a far cry from the land
totaling approximately
1,561.93 acres or 632.114
hectares claimed by the 2nd
and 3rd respondents.
Equally different are the
boundary features of the
disputants. The plaintiff by his
pleadings claimed that all sides
of his family land were bounded
by the lessor’s land. The
plaintiff was therefore enjoined
by law to provide positive proof
of the identity of his land
which he claimed to be bounded
by the lessor’s land. It is
equally essential that the land
be clearly identified by the
plaintiff and/or his witnesses
including adjoining boundary
owners such as the lessor
mentioned in the pleadings. At
the trial, the plaintiff
testified in his evidence in
chief that the land claimed by
him shared its ‘Northern
boundary with the Tema –Aflao
road, to the East the boundary
feature is the Norpendor river
and Sanpendor; to the West the
Kpone Bebiako We; to the South
is the Polalo to the sea.’ (See
page 149 of the ROA). The
evidence of Nelson Martey a
witness who testified for the
plaintiff as PW1 gave the
eastern boundary to be rather
with the river Lalui and not
Norpendor as given by the
plaintiff himself. Of course
both Norpendor and Lalui are not
the same as the unknown lessor’s
land as pleaded. The testimonies
of Plaintiff and PW1 were
contrary to or in conflict with
their own pleadings. The PW1
gave the following boundaries at
page 188 of the ROA namely: “…
to the East, the land share
boundary with the river by name
Lalui, and at the Western side,
it shares boundary with Kpone
Bediako family. And at the
North, it shares boundary with
Ada Aflao road and at the
Southern end, it shares boundary
with the sea.” Thus as between
the boundary features of the
land claimed by the plaintiff
and that narrated by Nelson
Martey (PW1) there is an obvious
difference. There is further
difference bothering on
inadequacy in the boundary
features given by yet another
witness for the plaintiff named
Okyeame Okom PW2. He simply
described the boundaries of the
Oshiokpo land as follows: “ when
you cross our river called
Lalui, when you cross the
mountain of the Osu people, then
we share boundary with Kpone.”
Even though
the plaintiff in his pleadings
averred that his land was
surrounded by the Lessor’s land,
no evidence was led as to the
identity of the lessor in
question and no one answering to
the name of a lessor was called
to testify as an adjoining
boundary owner. Significantly
when the plaintiff testified in
court he deviated from giving
the identity of the lessor and
rather gave the names of rivers
such as Norpendor and other
families such as Kpone Bediako
family as his boundary feature
and owner respectively. If
indeed plaintiff shared boundary
with such families as Kpone
Bediako family, the failure to
plead such fact and to lead
evidence thereon adds to the
plaintiff’s woes. Even though
the courts stipulate that the
identity of a disputed land be
clearly established or with
certainty as a precondition for
the grant of title, this does
not mean mathematical certainty
or exactness. The stipulation
calls for a common sense
approach to providing proof
which demands that material
witnesses would not be left out.
In the instant case it is
obvious that the mention of the
Kpone Bediako family as an
adjoining boundary owner with
the plaintiff makes that family
a material witness for the
plaintiff such that the failure
to call any member of that
family to testify is fatal to
the discharge of the evidential
burden on the plaintiff. This is
because of the basic principle
of the law of evidence that a
party who bears the burden of
proof is to produce the required
evidence of the facts in issue
that have the quality of
credibility short of which his
claim may fail. This court
pointed out in Ackah v Pergah
Transport Ltd (2010) SCGLR 731
the various methods of producing
evidence which include the
testimonies of the party and
material witnesses, admissible
hearsay, documentary and things
(often described as real
evidence), without which the
party might not succeed to
establish the requisite degree
of credibility concerning a fact
in the mind of the tribunal or
court.
Three issues
arise from the evidence led by
the plaintiff in support of his
claim. First by testifying about
different boundary features and
owners other than those pleaded,
the plaintiff was seeking the
damnation and disapproval of
this court as clearly stated in
Dam vs Addo (1962) 2 GLR 200,
SC. .
Secondly and
equally significant is that such
shifting sands between the
plaintiff’s evidence and his
pleadings invites the
application of the rule that
where there is a departure from
pleadings at a trial by one
party whereas the other’s
evidence accorded with his
pleadings, the latter’s was as a
rule preferable, as exemplified
by the case of Appiah v Takyi
(1982-83) GLR 1. For obvious
reasons, I will conclude this
point when considering the
respondent’s evidence in support
of their counterclaim later.
The last
issue is that, having enumerated
his new boundaries to include
boundary owners he was bound to
fail should he decline to call
such owner/s who are material
witnesses to testify because the
onus was on him to prove his
boundaries on the preponderance
of probabilities as held in the
case of Owusu v Tabiri
(1987-1988) 1 GLR 287.
These serious
failings or short comings on the
part of the plaintiff can only
result in complete disbelief in
his cause and no wonder the
court of appeal doubted the
trial court’s conclusion to the
contrary on the issue. There is
therefore no merit in this
ground of appeal and it is
dismissed.
Ordinarily
with the failure of the
plaintiff to establish the
identity and ownership of the
land claimed, the grounds
impugning specific lapses become
superfluous. However, in order
that justice will be seem to be
done to all issues worthy of
consideration we will deal with
the remaining issues as
appropriate.
Ground (iii)
Exhibit A – The learned Justices
of the Court of Appeal erred in
law that exhibit A had no
probative value.
The plaintiff
tendered exhibit A a site plan
which bears the same
endorsements as in the writ of
summons in apparent proof of his
claim to the land, i.e. his root
of title. Exhibit A is however
not dated. It is also not signed
by the Director of Survey or his
representative. This is contrary
to section 3 (1) of L.I.1444,
the Survey (Supervision and
Approval of Plans) Regulations,
1989 which makes it
mandatory for plans of any
parcel of land attached to any
instrument for the registration
of such instruments to be
approved by the Director of
Survey or any official surveyor
authorized in that behalf.
This stark
infringement of the statutory
requirement renders the exhibit
A of no probative value as
rightly determined by the Court
of Appeal. Notwithstanding that
the exhibit A was accepted in
evidence without any objection,
it could not constitute evidence
for the purpose for which it was
tendered since it infringed the
Instrument. This is so because
our courts have a duty to ensure
compliance with statutes
including subsidiary
legislations like the LI 1444 in
this case. (See Ex Parte
National Lottery Authority
(2009) SCGLR 390 at 402).
Ground (ii) -
Exhibit B and B1 –
the Court of
Appeal erred in law in holding
that the plaintiff had relied on
exhibit B and B1 as the root of
his family’s title to land.
These two
exhibits equally present their
own evidential challenges for
the plaintiff who placed premium
on them. They are photocopies of
original documents from Prampram
Traditional Council which
according to the plaintiff were
found in Numo Nuettey Tetteh
Kojo’s box or his possession
after the original got burnt. A
document or a writing needed as
evidence must be relevant to the
issue in trial. Such document
cannot be relevant unless it is
genuine or authentic. Section
136 of NRCD 323 provides the
necessary guide or test for
authenticity or genuineness. It
provides that “where the
relevancy of evidence depends on
its authenticity or identity, so
that authentication or
identification is required as a
condition precedent to
admission, that requirement is
satisfied by evidence or other
showing sufficient to support a
finding that the matter in
question is what its proponent
claims.” Acceptable or
permissive means of
authentication includes
authentication by testimony of a
witness with knowledge;
authentication by admission;
authentication by non expert
opinion on writing or
authentication by comparison by
court or witness. The plaintiff
testified to his belief that two
fire outbreaks at the Prampram
Traditional Council in the late
70’s could probably have
affected the originals of the
two exhibits. Doubts having been
cast on the credibility of the
two exhibits during cross
examination, the plaintiff was
obliged to lead further evidence
to satisfy a tribunal as to
their authenticity as required.
No witness
was called from the Prampram
Traditional Council the alleged
authors of the original
documents to testify on the
veracity of the said exhibits
particularly when issue was
raised about apparent recent pen
signature marks on the
documents.
They would
also have dispelled all doubts
about the two fires which
allegedly engulfed their
premises. Since one of the means
of authentication accorded
recognition under NRCD 323 is
authentication by comparison by
the court I have examined
exhibit B and observed the fresh
signature appended against the
name of Nene Osrabeng II who is
listed as No 6 of the witnesses
from different clans. Another
apparent insertion is a fresh X
mark also in blue ink against
the name of Numo A Fordi - Lower
Town. There is a further fresh
ink X mark against No 3 Numo
Dokutse under the title
Ablewankor. Lastly there is no
evidence of any thumbprints of
the persons listed on both
exhibits B and B1 against which
the X marks were made. Finally
and equally grievious is the
total absence of a jurat, which
is a legal requirement, since
most of the participants listed
on the documents were obviously
illiterate. This offends the
mandatory provisions of section
4 of the Illiterates Protection
Ordinance, Cap 262. This is so
because the matters required to
be complied with must be evident
on the face of the document or
letter. The conditions to be
fulfilled under section 4 of Cap
262 by persons writing letters
and other documents for
illiterates, whether
gratuitously or for reward are:
(i) that the writer should
clearly and correctly read over
and explain the letter or
document or cause same to be
read over and explained to the
illiterate person. (ii) Cause
the illiterate person to write
his signature or make his mark
at the foot of the letter or
other document or to touch the
pen with which the mark is made
at the foot of the letter or
other document. (iii) Clearly
write his full name and address
on the letter or other document
as writer there of; and (iv)
state on the letter of document
the nature and amount of the
reward, if any charged. On the
face of these two exhibits i.e.
B and B1, there is nothing to
show compliance with the Cap
262. This court in the case of
In re Kodie Stool; Adowaa v
Osei (1998-1999) SCGLR 23 in
holding 2 stated that
without strict fulfillment of
the section, any document
allegedly executed by an
illiterate person, had no
probative value and was to all
intents and purposes invalid.
In any case
the present case does not
qualify for an exception to the
strict requirements of the law
as stated in Duodu vs Adomako
& Adomako (2012) 1 SCGLR 198 at
201.
Therefore, in
the light of any evidence that
would demonstrate that the two
exhibits were indeed genuine and
that would also assuage the
lingering doubts about them as
well as the failure to comply
with the Illiterates Protection
Act, 1912 Cap 262, no premium
could be attached to exhibits B
and B1 as same are invalid. We
have no hesitation in affirming
the findings and conclusions of
the appellate court on this
ground for the reasons given
above as same are consistent
with the evidence adduced. This
ground of appeal fails and is
dismissed.
Ground (iv) -
The learned justices of the
Court of Appeal erred in law in
holding that the trial judge did
not evaluate exhibits 4, 5, 6
and 11
The arguments
on this ground are primarily
about the apparent failure to
give due considerations to
exhibits 4, 5, 6 and 11 that
were put in evidence. As stated
in Barclays Bank Ghana Ltd vs
Sakari (1996-1997) SCGLR 639
“where the findings were based
on undisputed facts and
documents, as in the instant
case, the appellate court was in
decidedly the same position as
the lower courts and could
examine those facts and
materials to see whether the
lower courts’ findings were
justified in terms of the legal
decisions and principles.” The
exhibits 4, 5, 6 and 11 would
thus be examined in the context
of the ground of appeal.
Exhibits 4,
5, 6 were tendered by the 3rd
respondent in support of the
counterclaim filed by the
respondents. Madam Bernice Oye
Bempong is the Regional
Registrar of the Prampram
Traditional Council who
testified as DW 2. She tendered
exhibits 11 to 13 being
correspondences from the
council. I will consider the
exhibits in some detail. The
exhibits 4 and 5 are excerpts
from the Archives attesting to
the fact that Kwaku Nartey, son
of Nii Nartey Borboryo was
enstooled as Nokotoma of
Oshiokpo. Exhibits 4, 5 and 10
are all extracts obtained from
official sources, to wit, the
Public Records and Archives
Administration Department. These
records are properly admitted
under section 148 of NRCD 323
being authenticated public
reports and records. The
plaintiff did not object to the
tendering of these documents in
accord with section 6 of NRCD
323.
The trial
judge however in apparent resort
to order 58 rule 5 of CI 47, the
High Court Civil Procedure Rules
2004 decided to exclude them, a
measure which seems arbitrary
and perhaps a measure of
discipline.
Quite
significantly, order 58 rule 5
is inapplicable to exclude
exhibits 4, 5, and 10. The said
order applies to “a plan,
photograph or model”. The
archival excerpts under
consideration are not “a plan,
photograph or model”. Trial
judges must appreciate that the
general governing principles as
recognized by the rules of court
in adopting disclosures as a
measure is to encourage
realistic assessment of the
case, shorten the length of the
hearing if the matter went to
trial and to enable explanatory
evidence from other witnesses to
be called without delaying the
proceedings. Put in another way,
they are intended to eliminate
surprise and to avoid
unnecessary trials. They are not
intended to exclude crucial
material regularly obtained.
Besides, having deployed
exhibits 4, 5 and 6 in evidence
in apparent response to or in
rebuttal of the plaintiffs
evidence and falling within the
operative rules, a court of
justice is obliged to give due
consideration to the exhibits
for whatever they are worth. The
trial judge thus misdirected
himself in rejecting exhibits 4,
5 and 6 and thereby depriving
the respondents the benefits of
due consideration thereof. The
court of appeal was thus right
in its holding that the trial
judge failed to evaluate the
said documents as to their
probative value due to their
unjustified exclusion.
Exhibit 6
is a conveyance entered between
the 2nd and 3rd
respondents and the Nii Nartey
Family of Boeboyoe Oshiokpo made
on 30th July 2001.
There being nothing irregular
about this exhibit on the face
of it the court was obliged to
consider same for what it was
worth.
Exhibit 11
is a letter originating from the
registrar, Prampram Traditional
Council dated 16th
November 1990 inviting the
Secretary of the leaders Meeting
of the Methodist Church Prampram
for a deliberation on the
acquisition of a piece of land.
It is signed by Nene Afutu
Nartey II, Acting President of
the Prampram Traditional
Council. Exhibit 12 is a
correspondence dated 14th May
1991 from Nene Tettey Osraban
III to the Registrar of the
Prampram Traditional Council
complaining about the latter’s
delay in defraying debts owed to
the chief. Exhibit 13 is also a
letter dated 2nd
November 1966 written at the
direction of Nene Annorkwei,
Paramount Chief of Prampram to
the Administrator of the State
Farms Dahwenya. The exhibits 12
and 13 were tendered to show
that the signatures of the then
secretary of Prampram
Traditional Council and those of
Nene Osraben and Nene Afutu
Nartey were different from those
on Exhibit B and B1. Exhibit 11
was tendered to show that the
signature of Nene Afutu Nartey
II is different from the
signature of Nene Afutu Nartey,
Mankralo of Prampram on exhibit
B1. In the absence of further
evidence showing that the
references in both documents are
to the same person, the
respondents had failed in their
endeavour to contradict or
disprove the document. Since
authentication by comparison by
a court is one of the
permissible means of
authentication under section 141
of NRCD 323 and having carefully
examined the exhibits under
consideration make the following
analysis. Exhibit B1 is dated
15/04/74 whilst exhibit 11 was
made on 16th November
1990 some sixteen years later.
The titles of the chief/s are
different. One is Nene Afutu
Nartey, Mankralo of Prampram and
the other is Nene Afutu Nartey
II, Acting President. Could it
be the same Mankralo who had
become Nene Afutu Nartey II,
Acting President in 1990? The
fact that one is simply Nene
Afutu Nartey without more whilst
the other is Nene Afutu Nartey
II raises questions. This is
because the term or title of a
succession whether first or
second usually obtains after the
demise of a previous title
holder of the same name. As long
as there are gaps and/or doubts
in the exhibits about the
identities of the persons named,
a court of justice may be
hesitant to rely on those
documents as they stand to state
categorically that the
signatures are different, since
it is uncertain whether it is
the same persons in issue. A
similar argument goes for the
signature of Nene Osrabeng. On
exhibit B, there is the name of
a Nene Osrabeng II whose fresh
signature captured in blue ink
has been discussed supra. The
exhibit 12 on the other hand was
signed by Nene Tettey Osraban
III. Whereas the ‘Nene’ who
signed exhibit B was second in
his succession the ‘Nene’ who
signed exhibit 12 was the third
in succession. Even then the
spellings of the two names are
different. Yet exhibit 12 is
intended to show that the
signature on exhibit B is a
forgery because the signatures
on the two documents were
different. The trial judge was
therefore right in placing no
value on exhibit 12 because it
had failed to establish any
forgery as claimed.
In
conclusion, exhibits 11, 12 and
13 showed no nexus to the issue
of forgery in respect to the
signatures of certain persons
named in exhibit B, hence have
thus no probative value. The
other remaining exhibits namely
exhibits 4, 5 and 6 ought to
have been properly evaluated by
the trial judge which he failed
to do. Thus as far as exhibits
4, 5 and 6 were concerned the
trial court was obliged to give
consideration to them in his
evaluations. The Court of Appeal
was therefore right in its
determination that the trial
judge was wrong in failing to
consider exhibits 4, 5 and 6.
(v)
The
learned justices of the Court of
Appeal erred in law in holding
that the 2nd and 3rd
defendants had proved their
counterclaim.
The
plaintiff’s attacks on the court
of appeal for concluding that
the 2nd and 3rd respondents had
proved their counterclaim was
premised on the contention that
the reasons advanced by the
appellate court for preferring
the evidence of the respondents
are not cogent enough and are
based on wrong interpretation of
the evidence and the law. In a
nutshell no good reasons were
given for rejecting the findings
of fact made by the trial court.
Plaintiff argued that the court
of appeal’s reliance on exhibits
2, 2A, 2C, 4, 5, 11, 12, and 13
merely because they had passed
the admissibility test was
incorrect since the exhibits had
to be further evaluated as to
their probative significance.
The argument of counsel is
misconceived because apart from
exhibits 11, 12 and 13 which did
not pass the test of relevancy
the others contributed to make
the existence of the
respondents’ claim more probable
as would emerge in the
discussion below.
It is
important to preface this
discussion with a consideration
of section 51 of NRCD 323 which
states in section 51 (3) that
“No evidence is admissible
except relevant evidence.” As to
what constitutes relevant
evidence the same is answered by
section 51 (1) thus: “…
’relevant evidence’ means
evidence, including evidence
relevant to the credibility of a
witness or hearsay declarant,
which makes the existence of any
fact that is of consequence to
the determination of the action
more or less probable than it
would be without the evidence”.
Throwing
further light on the section the
Commentary to the Evidence
Decree states in part that “The
Decree clarifies the law on this
subject by defining relevance
and limiting its meaning to the
existence of a logical
connection, based on human
understanding and experience,
between evidence offered and the
fact to be proved. Matters of
remoteness, redundancy,
prejudice, confusion, surprise,
waste of time and other matters
of policy are dealt with
separately, not as matters of
relevancy, but as matters which
at times indicate that evidence,
even though relevant, ought to
be excluded……….It is enough that
the evidence has some effect on
the probability of the existence
of the fact to be proved. To be
relevant the evidence need not
be sufficient to support a
finding of fact. As Prof.
McCormick has said, ‘A brick is
not a wall. To be relevant the
evidence need only constitute a
part not the whole of what is
needed.”
Exhibits 2,
2A, 2C, 4, 5, 11, 12 and 13
would be considered as to
whether the plaintiff’s
criticism has any basis. In the
light of the conclusions in
respect to exhibits 11, 12, and
13 to the effect that they had
failed to establish the
necessary nexus for which they
were offered no consideration
can be given to them. We will
limit consideration to the
remaining exhibits so long as
the plaintiff’s challenge goes.
Exhibits 2,
2A to 2D were tendered by Daniel
Nartey, 3rd
respondent (See page 225 of ROA)
being pictures taken to show
dilapidated structures or ruins,
water reservoir and stone quarry
left behind by their great
grandfather. The 3rd
respondent was cross examined on
the exhibits 2, 2A to 2D without
contradictions on the import of
the pictures. There was a
suggestion for the court to move
to the locus for which the
witness expressed his
willingness and readiness to
point out all the items
photographed to the court on the
ground. The locus visit was not
pursued beyond the suggestion.
Let me state that locus
inspection is an exceptional
undertaking and not the norm in
the trial process. Locus
inspection becomes necessary
where there is a material issue
which could not be resolved
except by visual inspection.
The primary
purpose of the visit to the
locus is to clear doubts which
arise during the hearing and not
to find evidence in support or
to destroy the case of one party
or the other. It is therefore
not granted for any flimsy
reason but to help resolve a
conflict which visual inspection
would help unravel. Such
instance may arise when the
identity of the land or any
physical feature of it is in
dispute and which a visit to the
land would resolve, would be a
proper exercise of the court’s
discretion. In the instant
appeal and given the
circumstances under
consideration, no locus
inspection was necessary. We
will deal with the concluding
part on exhibits 2, 2A to 2D
together with the testimony of
the 3rd respondent
here below.
The Exhibit
4, as indicated earlier in this
presentation is an official
extract from the National
Archives tendered to show that
the great grandfather of the
respondents J.B Nartey (alias
Nartey Borboryoe of Klay tribe)
was a regent. Exhibit 5 is also
an extract from the National
Archives evidencing that the
great grandfather of the
respondents was a Nukutoman, the
equivalent of Mantse. Without
any doubt, a defendant who files
a counterclaim assumes the same
burden as a plaintiff in the
substantive action if he/she is
to succeed. This is because a
counterclaim is a distinct and
separate action on its own which
must also be proved according to
the same standard of proof
prescribed by sections 11 and 14
of NRCD 323 the Evidence Act
(1975). The respondents evidence
in proof of their counterclaim
were based on family history
falling under the exception to
the hearsay rules captured in
sections 128 and 129 both of the
NRCD 323 of 1975. The
respondents led evidence to show
that their claim to the much
bigger land than that claimed by
the plaintiff was by settlement
through their great grandfather
the late Nii Nartey Borboyoe who
first settled on the Oshiokpo
lands at Dawhenya in 1872. The
respondents also tendered
documentary historical evidence
from the National Archives
(exhibits 4 and 5) to show that
their great grand father was a
Nokotoma of Oshiokpo.
The 3rd
respondent who testified for the
respondents led oral evidence on
their great grand father’s
settlement upon the land. At
page 224 to 225 of the Record of
Appeal (ROA) he stated as
follows:
“I earlier on
indicated that the people of
Prampram acquired land through
farming, rearing of cattle and
settlement. And our great
grandfather, he settled at
Oshiokpo, and he named it
Oshiokpo. And the meaning of
Oshiokpo is that, “you left your
doves behind.” Because he was
rearing doves, but when he was
coming, he left them behind. And
the rest of the old village or
township is still there. And the
poultry farms or the cattle
ranches which they used in the
past are still in existence. And
the water reservoir for which
they used to feed the animals
are also in existence. The mango
trees and other things are also
still there. That indicates that
the village is for us.”
In support of
the testimony above, the 3rd
respondent tendered exhibits 2,
2A to 2D being pictures of the
activities described in the oral
testimony. Quite apart from
placing reliance on exhibits 2,
2A to 2D the 3rd
respondent’s testified
concerning the ruins and
remnants on the land quoted
supra which testimony was not
discredited under cross
examination. Assuming therefore
that the aforesaid exhibits (2
to 2D series) failed the test of
admissibility the court still
had before it the oral testimony
of the 3rd respondent
and other witnesses to evaluate.
The 3rd respondent
also testified as to their
recent acts of possession
independent of the existence of
the old trees and ruins on the
land. These include the grant of
portions of the land to African
Institute of Journalism the 1st
respondents, First Star Academy
and Manaterris Limited which
grants are evidenced by exhibits
3, 3A and 3B. Significantly
also the 3rd
respondent testified to their
boundaries in line with their
pleadings as claimed by the
respondents. To the north they
share boundaries with Aden and
Darpoh family at a village
called Ososhi, where there is a
stream called Santodor. At the
West, they still share boundary
with Aden and Darpoh family at
the location of Edmundo Farms.
At the Southern end they still
share boundaries with Aden and
Darpoh family while to the East
their boundary is a lagoon
called Laluea. The respondents
called DW3 Nene Kweku Dampoh,
the Chief of Dawhenya and a
boundary owner who corroborated
sharing boundary with
respondents.
In
conclusion, the respondents led
sufficient evidence to clearly
identify their land which
accorded with their pleadings.
This is unlike the plaintiff who
failed to call significant and
material witnesses even after
leading evidence contrary to his
own pleadings. This, on the
principle relied upon in
Appiah v Takyi (1982-83) GLR 1,
which we affirm, makes us
prefer the respondent’s evidence
in proof of their claim because
it was in line with their
pleadings.
In our view
therefore, the respondents have
on the whole succeeded in
leading sufficient evidence in
proof of their counterclaim on
the preponderance of
probabilities as rightly
determined by the appellate
court. In the event the appeal
fails and is dismissed. The
decision of the Court of Appeal
is affirmed.
(SGD) J.B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD)
G. T. WOOD (MRS)
CHIEF
JUSTICE
(SGD) J.
ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE
SUPREME COURT
COUNSEL
YAW OPOKU
ADJAYE WITH HIM TETTEH JOSIAH
FOR THE PLAINTIFF/ RESPONDENT/
APPELLANT.
ROCKSON
NELSON DAFEAMEKPOR FOR THE 2ND
AND 3RD DEFENDANTS
/APPELLANTS/ RESPONDENTS.
|
