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Land - Ownership -
Evidence -
Capacity - Whether
defendants were actually in
physical possession of the
landbefore the plantiff -
Whether trial judge erred in
placing great reliance a
conveyance of the disputed
property - Whether conviction of
a party for obstruction did not
involve a determination of who
has a better right to the
disputed property - Whether
insignificant inconsistencies in
a presentation of a truthful
case would operate to deprive it
of the quality of proof -
Whether defendants have capacity
to mounted a counterclaim in the
action
HEADNOTES
While the plaintiff contended
that he obtained his grant in
the 1990s and perfected it with
a leasehold document from the
stool, the defendants who
claimed through their deceased
father, one Mohammed Suley
alleged that their father took
his grant on 15 January 1970 and
followed it with entry upon the
land and the erection of a
residential dwelling thereon.
According to the plaintiff, the
defendants encroached upon his
land resulting in him lodging a
complaint with the police that
led to the conviction of the 1st defendant
by a District Court, Kumasi for
the offence of obstruction
contrary to section 204 of Act
29/60. On the other hand of the
aisle, so to say, the 1st defendant
who was aged 30 at the time of
his testimony testified that his
father’s children were all born
on the land and that their
deceased father was on the land
before the plaintiff started
molding blocks on a nearby
property which they later tried
to utilize on the land but met
with resistance from the 1st defendant,
an act that led to his
prosecution and subsequent
conviction., evidence contained
in the record of appeal and had
regard to the written briefs
submitted by the parties shows
that the plaintiff’s grant was
subsequent to that of the
defendants deceased father and
that at the time of the
purported grant to the
plaintiff, the defendants were
actually in physical possession
of the land, the question raised
in the appeal herein by the
plaintiff concerning the
capacity of the defendants to
have mounted a counterclaim in
the action. It was contended
that in the absence of proof
that following the demise of
their father to whom the prior
grant was made,
HELD :- We have no doubt that in the
circumstances, it was proper for
their counterclaim to have been
allowed by the Court of Appeal
to avoid the same issue being
re-litigated in the future. For
these reasons, we dismiss the
appeal herein and affirm the
decision of the learned justices
of the Court of Appeal. The
result is that the plaintiff’s
action is dismissed and judgment
entered for the defendants on
their counterclaim.
STATUTES REFERRED TO IN JUDGMENT
Courts Act, Act 459
section 54
High Court (Civil
Procedure) Rules, 2004, CI 47
Order 1 rule 2
Intestate Succession Law,
PNDC Law 112 section 4(1) (a)
CASES REFERRED TO IN JUDGMENT
In Re Okine (Dec’d)
[2003-2004] 1 SCGLR 582 at 607
Amuzu v Oklika {1998-99]
SCGLR 142,
Henderson v Foxworth
Investments Ltd [2014] UKSC 41,
[2014] 1 WLR 26.
Okyere (Deceased) v
Appenteng & Adoma [2012] 1 SCGLR
65
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
GBADEGBE, JSC
COUNSEL.
MATTHEW APPIAH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
FREDERICK YEBOAH AGAAKWA
FOR THE DEFENDANTS/ APPELLANTS/
RESPONDENTS
The judgment of the Court was read by
Gbadegbe, JSC as follows:
This is an appeal from the judgment of
the Court of Appeal which
reversed the decision of the
trial Circuit Court in the
action herein. By that decision,
the Court of Appeal accepted the
case of the
Defendants/Appellant/Respondents
(Defendants) and rejected that
of the
Plaintiff/Respondent/Appellant
(Plaintiff). As the two lower
courts differ in their
resolution of the disputed
question of fact which turned on
the pleadings namely which of
the contending parties owns the
disputed land, our task in the
matter herein is to determine
after a careful consideration of
the evidence contained in the
record of appeal, which of the
two decisions truly reflects the
effect of the evidence. As there
is a conflict of opinion between
the trial court and the Court of
Appeal, we have to bear in mind
that as the trial court was the
tribunal of fact, we have to
scrutinize the judgment to
determine if the conclusion
reached on all the evidence was
open to the learned trial judge.
If on the evidence, the decision
reached by the learned trial
judge was supported by the
evidence, then the Court of
Appeal was not entitled to
reverse it even if they would
have reached a different
conclusion on the disputed
facts. The Court of Appeal can
only interfere when satisfied
after a consideration of all the
evidence that learned the trial
judge did not properly exercise
his discretion resulting in the
decision being perverse and or
unreasonable. It is important
that appellate judges
demonstrate a slowness in
interfering with decisions of
trial courts when such decisions
are supported by the evidence.
The attitude of appellate courts
is admirably expressed in the
judgment of Kludze JSC (as he
then was) in the case of In
Re Okine (Dec’d) [2003-2004]
1 SCGLR 582 at 607 when he
observed as follows:
“In the Court of Appeal, and before
us, it was argued that we must
not disturb the finding of fact
made by the trial judge unless
they are wholly unsupported by
the evidence. I accept that as a
sound proposition of law. There
is a long line of cases to the
effect that even if the
appellate court would have come
to a different conclusion, it
should not disturb the
conclusion reached by the trial
court. This is because the trial
court is presumed to have made
the correct findings…………………… In
other words, where the evidence
can reasonably support the
conclusions of the trial judge,
the appellate judges should not
order a reversal just because
their assessment and comparison,
or their view of the
probabilities, may be at
variance with those of the trial
judge. If the evidence can lead
to two or more plausible
conclusions, the conclusion of
the trial judge should prevail,
even though a different judge
might come to a different
conclusion.”
Thus in this case, although we are
faced with two conflicting
decisions on contested facts, we
should have this caution at the
back of our minds in order not
to substitute our own decision
for that of the trial court. If
from the consideration of all
the evidence tendered in the
matter, we find support in the
decision reached by the learned
trial judge then the reversal of
the decision by the Court of
Appeal is a wrong exercise of
the jurisdiction conferred on
them and in such a case we
should interfere to restore the
decision of the tribunal of
fact. But on the other hand, if
the trial court reached a
conclusion on the evidence
tendered before it that is
unsupported by the evidence,
then the learned justices of the
Court of Appeal were justified
in interfering with the decision
and in such a case, we should
uphold their decision in
preference to that of the trial
court.
Before proceeding to determine the
appeal, we would like to state
that certain crucial facts on
which the action turned were not
disputed including the fact that
both parties claim title to the
land through the Hia- Topre
stool of Ayigya. Also not in
dispute is the identity of the
disputed property. In the
circumstances, we are of the
opinion that proof by either
party of a prior grant of the
land suffices to deprive the
owner of title to the land as
the basic principle in such
cases is that after an owner has
granted a clearly determined
area of land in favor of a
party, he no longer has title to
that parcel of land save in
circumstances where the grant is
affected by vitiating
circumstances none of which was
raised by either party to these
proceedings.
While the plaintiff contended that he
obtained his grant in the 1990s
and perfected it with a
leasehold document from the
stool, the defendants who
claimed through their deceased
father, one Mohammed Suley
alleged that their father took
his grant on 15 January 1970 and
followed it with entry upon the
land and the erection of a
residential dwelling thereon.
According to the plaintiff, the
defendants encroached upon his
land resulting in him lodging a
complaint with the police that
led to the conviction of the 1st
defendant by a District Court,
Kumasi for the offence of
obstruction contrary to section
204 of Act 29/60. On the other
hand of the aisle, so to say,
the 1st defendant who
was aged 30 at the time of his
testimony testified that his
father’s children were all born
on the land and that their
deceased father was on the land
before the plaintiff started
molding blocks on a nearby
property which they later tried
to utilize on the land but met
with resistance from the 1st
defendant, an act that led to
his prosecution and subsequent
conviction.
Given the very narrow compass in which
the dispute revolved, namely the
ownership of the disputed
property, it was incumbent upon
the learned trial judge to have
thoroughly considered the
evidence for the purpose of
determining which of the
contestants had a prior grant
but surprisingly, he placed much
reliance on a conveyance
executed by the owners in favor
of the plaintiff and the
conviction of the 1st
defendant for obstruction of the
plaintiff. In our view, the
above approach lost sight of
evidence which was led by the
defendants to establish their
prior possession of the land
based on an allocation letter
and their subsequent entry upon
the land and in particular the
construction of a place of
residence thereon as well as the
payment of property rates which
were previous to those paid by
the plaintiff in respect of the
land. In our view, the clear
evidence of the defendants’
prior grant and the possession
which accompanied the grant to
their father cannot be
superseded by the mere fact that
the plaintiff who on the
evidence obtained his grant
subsequently obtained a
conveyance of the disputed
property from the owners and
succeeded in having the 1st
defendant prosecuted for
obstruction.
We have carefully attended to the
evidence contained in the record
of appeal and had regard to the
written briefs submitted to us
by the parties before us and
have reached the conclusion that
the plaintiff’s grant was
subsequent to that of the
defendants deceased father and
that at the time of the
purported grant to the
plaintiff, the defendants were
actually in physical possession
of the land, and such possession
ought to have put the plaintiff
who went to inspect the land
that the grant that he was
seeking was encumbered. In the
light of this, we are led to the
view that the grant to the
plaintiff is tainted by the
prior grant to the defendants
and accordingly on the authority
of the decision of this court in
the case of Amuzu v Oklika
{1998-99] SCGLR 142, the said
subsequent grant is not
effectual but null and void as
at the time that the grant was
being made in his favor, the
owners had long divested
themselves of their interest in
the disputed property in favor
of the father of the
defendants. We pause to observe
that writing is not a sine qua
non to a customary grant and as
the parties to these proceedings
are by virtue of the choice of
law rules contained in section
54 of the Courts Act, Act 459
subject to customary law, the
learned trial judge erred in
placing great reliance on the
mere fact of the plaintiff had a
conveyance of the disputed
property; a conveyance only adds
to a customary grant but its
absence does not detract from a
prior grant made under customary
law. The grant to the plaintiff
was made in circumstances that
have the attribute of a
fraudulent act done by the
grantors and the plaintiff
collusively for the purpose of
overreaching the defendants
grant but that is something that
cannot be condoned by a court of
law; for which reason we agree
unhesitatingly with the Court of
Appeal that it cannot have the
sanction of law, and is
accordingly nullified.
Having carefully read the record of
appeal herein over and over
again, we have come to the same
view as was reached by the
learned justices of the Court of
Appeal on all the evidence, the
effect of which is the decision
of the trial judge is
unsupported by the evidence. In
our view, the learned trial
judge’s finding to the contrary
demonstrates a significant
misunderstanding of the effect
of the prior possession of the
land by the defendants on the
subsequent grant to the
plaintiff, which raised the
suspicion of a colorless grant
to the plaintiff and entitled
the Court of Appeal to interfere
to correct the obvious error.
See: Henderson v Foxworth
Investments Ltd [2014] UKSC
41, [2014] 1 WLR 26. AS we have
expressed our agreement with the
conclusions reached by them on
the evidence, we desire not to
detain the precious time of the
court by a repetitive
examination of the evidence. We
think that the views expressed
above are decisive of the core
issue for our decision that
turns of the rival claim before
us to the ownership of the
disputed property. Similarly, we
are of the opinion that the
conviction of the 1st
defendant for obstruction did
not involve a determination of
the question of who has a better
right to the disputed property
and as such cannot operate to
preclude the defendants from
establishing that as against the
plaintiff (who was the
complainant in the criminal
case), they have a better title.
The point of issue estoppel
which the plaintiff impliedly
sought to advance is wholly
inapplicable to the
circumstances of this case.
The plaintiff has also sought to
impeach the judgment of the
Court of Appeal on the ground of
inconsistencies in the evidence
led by the defendant. In our
opinion, the learned justices of
the court below adequately dealt
with the said ground of
complaint at page 492 of the
record of appeal. We wish to say
further that a careful anxious
examination of the rival cases
of the parties reveals that
whiles the plaintiff’s relied on
a grant that was as earlier on
expressed in this delivery made
in fraudulent circumstances
which they tried to conceal in
the presentation of their
pleading and evidence, the
defendants version was marked
with truth and that in the
circumstances the case of the
defendants preponderated over
that of the plaintiffs. We do
not think that mere
insignificant inconsistencies in
the presentation of a truthful
case would operate to deprive it
of the quality of proof that
would result in a court
preferring a case planked on
fraud.
There remains the question raised in
the appeal herein by the
plaintiff concerning the
capacity of the defendants to
have mounted a counterclaim in
the action. It was contended
that in the absence of proof
that following the demise of
their father to whom the prior
grant was made, they had
obtained letters of
administration from the court
and subsequently had the
disputed property vested in them
they were without capacity. In
making this submission, the
plaintiff placed great reliance
on the concurring judgment of
Brobbey JSC (as he then was) in
the case of Okyere (Deceased)
v Appenteng & Adoma [2012] 1
SCGLR 65. In particular,
reference is made to the
following statement by the
learned judge at page 76 in the
words that follow:
“The import of the judgment in this
case is this: when a person dies
testate or intestate, his estate
devolves on the executor or
personal representative
respectively until a vesting
assent been executed to the
beneficiaries or devisees and
until the grant to them of a
vesting assent, the
beneficiaries and devisees have
no title or locus standi over
any portion of the estate.”
Basing himself on the above
pronouncement, learned counsel
for the plaintiff has
strenuously contended that the
defendants had no capacity to
make a counterclaim in respect
of their deceased father’s
property and accordingly
notwithstanding the force of the
conclusions reached on the
evidence, the Court of Appeal
erred in decreeing title in
their favor. To begin with, we
note that in the case in which
the above pronouncements were
made, the property in dispute
was being claimed under a will
and therefore in expressing
views on matters that related to
intestacy the said views were in
their nature obiter. Further,
in the instant case, the
defendants who were peacefully
on their property were sued by
the plaintiff who sought to have
title declared in his favor
against them and as by the
nature of the controversy, title
was necessarily put in issue by
either party, it is important
that the question as to which
party owned the disputed
property be put to rest once and
for all in order that the matter
may not be relitigated in the
future. Accordingly, no
injustice was occasioned to the
parties by the determination of
the question of title to the
land by the Court of Appeal.
Indeed, we are enjoined as
judges to avoid multiplicity of
actions by the very clear words
of Order 1 rule 2 of the High
Court (Civil Procedure) Rules,
2004, CI 47 which are as
follows:
“These Rules shall be interpreted and
applied so as to achieve speedy
and effective justice, avoid
delays and unnecessary expense,
and ensure that as far as
possible, all matters in dispute
between the parties may be
completely, effectively and
finally determined and
multiplicity of proceedings
concerning any of such matters
avoided.”
The legislative wisdom contained in
the above provision which is the
overriding principle in civil
procedural rules in the High
Court cannot be overridden by
slavish adherence to mere
technicality; our primary
concern as judges being to do
substantive justice. Then
there is the provision of
non-compliance provided in Order
81 of CI 47 by which for such
defaults to invalidate
proceedings the Party who raises
such a point should not have
taken a fresh step in the matter
after knowledge of such an
irregularity - See: Order 81
rule 2 (2). The plaintiff who
has urged this point before us
took part in the proceedings
before the trial court without
raising a finger and we are
firmly of the opinion that it is
too late in the day for him to
do that which would have the
effect of escaping through the
back door after much time and
expense has been incurred in the
action herein. The matter having
been fought to this stage, the
parties are entitled to have the
issues determined finally
between them.
Proceeding further, we are of the view
that by virtue of the rules on
intestacy contained in section
4(1) (a) of the Intestate
Succession Law, PNDC Law 112 ,
following the death of the
father of the defendants and
their mother- the original 1st
defendant, the property devolved
upon the children and as such
they had an immediate legal
interest in the property that
they are competent to defend and
or sue in respect of and in any
such case either the children
acting together or any of them
acting on behalf of the others
may seek and or have an order
of declaration of title made in
their favor. In the instant
case, it is important to note
that the defendants when sued
did not specifically seek an
order for declaration of title
but by virtue of the issues that
turned on the pleadings, their
title was put in issue as there
was a claim for perpetual
injunction directed against
their continued occupation of
the disputed property. We have
no doubt that in the
circumstances, it was proper for
their counterclaim to have been
allowed by the Court of Appeal
to avoid the same issue being
re-litigated in the future.
For these reasons, we dismiss the
appeal herein and affirm the
decision of the learned justices
of the Court of Appeal. The
result is that the plaintiff’s
action is dismissed and judgment
entered for the defendants on
their counterclaim.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MATTHEW APPIAH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
FREDERICK YEBOAH AGAAKWA FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS.
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