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JUDGMENT
ESSILFIE-BONDZIE, J.A
This is an appeal from
the judgment of the High Court dated 26th day of 2000
delivered in favour of the plaintiffs/Respondent. In
this “judgment the Plaintiffs/Respondents will be simply
called the Plaintiffs and the 1st defendant/Appellant
referred to as 1st Defendant.
In the amended
statement of claim dated 10th April, 1997 the plaintiffs
described themselves and the defendants in 1st and 2nd
paragraphs as follows:
“(1) The 1st, 2nd, 3rd,
4th and 5th plaintiffs are the principal elders of
Adjetey Agbosu family of Sraha while the 6th plaintiffs
the head and lawful representative of Okpalor Sowah Din
family of Teshie and Nmai Dzorn.
(2) 1st defendant is a
self-styled chief of Ashaley Botwe and represents the
said Ashaley Botwe Family under the Stool name of Nii
Ashaley Botwe II whilst the 2nd defendant is the Head of
Ashaley Botwe Stool Family.”
The brief genesis of
this case as can be gleaned from the record of
proceedings are that some time in 1976, the Ashaley
Botwe Family registered a Statutory Declaration relating
to the whole of Ashaley Botwe Family Lands. The said
Statutory Declaration which was dated 4th May 1976,
stamped and registered with the Lands Commission (3rd
defendant) as no AC4345/75 and 761/77 respectively.
It was the case of the
1st to 5th plaintiffs as well as the 6th plaintiff that
the 1st defendant and the 2nd defendant who are the
chief and head of the Ashaley Botwe family and others
had by means of the Statutory Declaration dated 4th May
1976 and registered as 761/1977 made a declaration
encompassing a vast area of Lands in which the lands of
the 1st to 5th plaintiff as well as the 6th plaintiff
were comprised. In other words the Statutory Declaration
registered by the 1st and 2nd defendant as 761/1977
encroached upon their Lands, that the Lands registered
by Ashaley Botwe Family included their lands.
The action herein was
provoked when the 1st to 5th plaintiffs sought to
register a Statutory Declaration sometime in 1992 in
respect of lands which they claimed to be theirs but
they were informed by the Land Commission after the
Statutory Declaration had been presented that the same
could not be processed in view of the protest of the 1st
defendant to the said registration. Consequently the 1st
to 5th plaintiff instituted the action. In the course of
the action the 6th plaintiff applied to be joined to the
action. He also claimed that the Statutory Declaration
registered by the 1st defendant encroached upon their
Lands.
The following reliefs
were therefore endorsed on their Amended Writ of
Summons.
(a) That statutory
Declaration of 4th May 1976 stamped as AC4345/76 made by
Numo Ashaley Nikoi, Nii Amasa Nikoi, Numo Tawiah
Franter, Nuumo Kotei Franter and Clement Kodjo of
Ashaley Botwe purporting to be the owners of all that
parcel of land therein described is binding only on the
Declarant and can not in law operate in law to affect
the interest of the plaintiffs in respect of their land
included therein.
(b) That the 1st, 2nd,
3rd, 4th and 5th plaintiffs are the owners in possession
of all that piece and parcel of land described in their
statement of claim and in the attached schedule marked
exhibit A.
(c) An order of
declaration of title in the 6th plaintiff family of ALL
THAT piece or parcel of land containing approximate area
of 1,7983.231 acres situate at Nmai Dzorn in Greater
Accra Region of the Republic of Ghana bounded on the
North West by Ashaley Botwe Lands measuring a total
distance of 11010 feat more or less on the North-East by
University of Ghana Farm and Animal husbandry measuring
a total distance of 14,550 feat more or less on the
South by Stre stream and pond measuring a total distance
of 14,500 feet more or less.
(d) In the ALTERNATIVE,
cancellation or expunging from the records of Lands
Commission Secretariat the Statutory Declaration of 4th
May 1976 stamped AC4345/76 by same secretary accepted
plotted and recorded in the Lands Commission Secretariat
records without giving the general public notice of the
said publication.
(e) Injunction
restraining the 1st Defendant themselves persons
deriving title from any one of them from interfering
with the Plaintiffs right of ownership and enjoyment of
their land.
(f) Trespass against
the defendant in unlawfully going onto the plaintiffs
land and allocating portions of the said land to persons
without the authority of the plaintiffs.
(g) Damages for
trespass on 6th plaintiffs portion of the land contained
in the said Statutory Declaration.
The 1st defendant lost
the suit. The 2nd defendant, the head of Ashaley Botwe
Family however died in the course of the action. Being
aggrieved and dissatisfied with the Decision of the High
Court dated 26th July, 2000 the 1st defendant has
appealed to this Court. He filed four (4) original
grounds of appeal and twelve (12) additional grounds of
appeal.
Counsel for the 1st
defendant commenced his argument with grounds (f) and
(g) which challenged the Capacity of the plaintiffs to
institute the action. Learned counsel submitted that the
1st, 2nd, 3rd, and 5th plaintiffs conducted their case
as Principal Elders of the Adjetey Agbosu Family without
giving reasons why their Head of Family did, not appear
in Court to give evidence and why he did not himself
institute the action. He contended that the law lays
down specific course of action which must be followed if
the Head of Family could not prosecute a suit himself.
He cited KWAN vrs NYIENI AND ANOTHER (1959) G.L.R. 67CA
at pages 68 and 69 in support of his argument.
In reacting to the
above submission on capacity learned counsel for the
plaintiffs maintained that the five plaintiffs were
entitled to bring the action against the defendants in
the manner they did as the sole purpose was to preserve
the family property and alternatively they represented
their Family. In their Amended Statement of claim filed
on the 10th April, 1997 the plaintiffs pleaded in
paragraph 1 as follows:
“The 1st, 2nd, 3rd,
4th, and 5th plaintiffs are the principal elders of
Adjetey Agbosu Family of Sraha while the 6th plaintiff
the head and lawful representative of Okpalor Sowah Din
family of Teshie Nmai Dzorn.
In paragraph 2 of the
amended statement of defence in answer to the plaintiffs
amended Statement of claim the 1st defendant averred
that “The 1st defendant denies the facts contained in
paragraph 1 of the Amended Statement of Claim, and the
1st defendant will put the plaintiffs to strict proof of
their averments contained therein.” This paragraph thus
challenged the capacity of the plaintiffs to institute
the action.
The plaintiff sued in a
representative capacity. They sued in a representative
capacity, that is, as Principal elders of the Agbosu
Family of Sraha. They conducted their case as principal
elders of the Adjetey Agbosu Family while the 6th
plaintiff conducted his as the head and lawful
representative of Okpalor Sowah Din Family of Teshie and
Nmai Dzorn.
Now since the
plaintiffs capacity or locus standi was challenged and
authority to institute the action was also challenged by
the 1st defendant the burden of establishing authority
is upon the plaintiffs. In Chapman Vrs Ocloo and
Kporhanu (1957) 3.W.A.L.R. page 84 at Holding 2 the
Court held that
“Save in exceptional
circumstances the proper person to sue on behalf of a
family in respect of family interests is the head of
family. The burden of proof where authority is
challenged will thus be discharged by establishing
headship. Where the person challenged is not
the family head the burden will be discharged only where
the express authority of the family is established by
that person.” In KWAN Vrs NYIENI AND ANOTHER (1959)
G.C.R. 67CA pages 68 and 69 however the law laid down
specific course of action which must be followed if the
Head of Family could not prosecute a suit by himself.
There are a number of authorities regarding capacity to
institute action in Court. But a recent one which comes
readily to mind is the case of YORMENU Vrs AWUTE and
OTHERS (1987-88)/G.L.R.9 where in dismissing an appeal
the Court of Appeal unanimously held (holding1) that
“the law was settled that if the land was family
property then it was only the head of Family that could
sue or be sued. But if the family property was in
jeopardy of being lost any member of the family could
act to save it if the head of family refused to act.
Consequently if the plaintiffs’ allegation was that the
1st defendant was building on family land which would be
lost, unless he acted then he had capacity. He must
however first show that there was a substantive head who
had refused to act for no good cause or no head at all
or no head at all who could act.”
In this case what the
plaintiffs are claiming is a family property. They
claimed to be principal elders of the family yet none of
them mounted the witness box to give evidence to that
effect. They failed to adduce evidence that they were
principal elders of the Adjetey Agbosu Family of Sraha.
The 6th plaintiff who also claimed to be head and lawful
representative of Okpalor Sowah Din Family of Teshie,
never gave evidence himself and never adduced evidence
to establish his capacity. The plaintiffs did not
testify that there is a head of Family who for good
cause has refused to act and if they did not act the
property was in jeopardy of being lost to the Family.
The record of
proceedings discloses that at the close of case for both
parties. The learned counsel for the 1st defendant first
addressed the Court. This was followed by learned
counsel for the plaintiffs. It is on record that when
learned counsel for the 1st defendant in accordance with
the defendants pleadings argued the question of Capacity
of the plaintiffs to institute the action the learned
trial judge granted leave to the 1st, 2nd, 3rd, 4th,
5th, and 6th plaintiffs to amend paragraph 1 of the
Amended statement of claim. The said amendment of
paragraph 1 of the Amended Statement of claim effected
on the 13/7/2000 after the close of case and addresses,
for the first time named the 2nd plaintiff as the Head
of the Adjetey Agbosu family of SRAHA and the 1st, 3rd,
4th and 5th plaintiffs as principal elders of the said
Family.
The applicable Order
stipulates that leave to amend proceedings may be
granted “at any stage of the proceedings”. Nevertheless
it is very important to make the application for an
amendment as soon as the defect is detected. But if the
application is delayed unreasonably until evidence in
the case has been adduced and a point of law argued the
application ought to be refused. This is so especially
when the amendment will result in injustice to the other
party and the bona fides of the plaintiffs are in doubt.
Order 28 to the Civil Procedure Rules (High Court Rules
1954.)
It is my view that at
the time when the trial judge granted leave to the
plaintiffs to amend their capacity especially when a
legal challenge had been made and argued by counsel for
the defendants, it was a wrong exercise of his
discretion. It was a big blow and an injustice to the
defense. It is my judgment that the amendment effected
by the 1st to 6th plaintiffs never cured the defect and
lack of the plaintiffs capacity to institute the action.
It is evident from the record that even after the said
amendment had been granted the alleged Head of Family
was not called to give evidence and to be cross examined
to determined the authenticity of his claim. I hold from
the evidence adduced before the Court that the
plaintiffs failed to prove their capacity to sue in
accordance with law when their capacity was challenged.
I am fortified in this view because if the alleged Head
of Family was truly and in fact a Head of Family he
would have entered the witness box to establish the fact
of his headship.
It is worthy of note
that even though the 1st defendant challenged the
capacity of the plaintiffs to institute the action the
learned trial judge failed to make some pronouncement on
the question of Capacity without giving any reasons. I
will now proceed with ground (a) and (h) of the grounds
of appeal together.
Ground (a) states,
“that the judgment is against the weight of evidence
adduced at the trial”. And ground (h) states “that the
learned trial judge erred by allowing the plaintiffs to
lay claim to land (i.e DECLARATION OF TITLE) when the
plaintiffs did not call a qualified Surveyor to tender a
surveyor’s Plan showing the portion of land claimed by
them out off the larger land described in the 1st
defendants Surveyor’s Site Plan attached to his
Statutory Declaration lodged with the Land Commission
Secretariat; not withstanding protestation from the 1st
defendant who filed a motion On Notice on 2nd February,
1998 i.e even before commencement of the hearing of the
suit, praying that a Qualified Surveyor be appointed to
demarcate the land claimed (purportedly) by the
plaintiffs on the ground; but the learned trial judge
dismissed the application."
Learned counsel for the
1st defendant argued that since they were laying claim
to a specific land area within Ashaley Botwe lands it is
the duty of the 1st to 5th plaintiffs and the 6th
plaintiff to give oral evidence to tally with paragraphs
4 and 5 of their amended statement claim. Learned
counsel contended that the subject-matter being land, it
was the first duty of the 1st to 6th plaintiffs to give
oral evidence supported by the relevant Surveyor’s Site
Plan which would positively map out their land vis a vis
that of the 1st defendant.
A look at the
plaintiff’s amended statement of claim dated 10/4/97 and
amended statement of claim-dated 14.7.2000 reveals that
their paragraphs 4 and 5 are the same.
In paragraphs 4 and 5
of the plaintiffs amended statement of claim they
pleaded as follows:
“(4) The 1st, 2nd, 3rd,
4th and 5th plaintiffs are the owners in possession of
all that piece and parcel of land known and described as
Adjetey Agbosu Freeman Family land situate and partly
between South-East of the Motorway from Nkwantanony etc.
etc. as per the attached sheet marked “a” while the 6th
plaintiff family is the owner in possession of all that
piece and parcel of land known and described as NMAI
DZORN family lands and measuring 793.23 acres bounded on
the North-West by the Ashaley Botwe land measuring
11,000 feet more or less on the North-East by the
University of Ghana farms measuring a total distance of
14,550 feet more or less on the South by Trabi Stream
and pond measuring a total distance of 14,500 feet more
or less.
(5) The said families
originated from Teshie and became owners by original
settlement of a large and unbroken forestland consisting
of an area almost fully cultivated as particularly
described in paragraph 4 herein.
(The emphasis is mine).
The pertinent question
posed here is: did the plaintiffs succeed in
establishing the identity of the land satisfactorily
according to law so as to entitle them to a declaration
of title and the other relief (of injunction) they
sought. In ANANE Vrs DONKOR (1965) G.L.R. 188 at page
192 the then Supreme Court per Ollenu SC as he then was
stated the law as
“Where a Court grants
declaration of title to land or an order for injunction
in respect of land, the land 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 JUCIATA to
prevent the parties relitigating 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
subject-matter of the suit”.
(The emphasis is mine).
In a more recent case
of KWABENA Vrs ATUAHENE (1981) GLR CA page 136 it was
held (per Archer JA Apallo CJ and Anan JA) concurring
held that “the onus of proof required by law as regards
the identity of land would be discharged by meeting
these conditions.
(a) the plaintiff has
to establish positively the identity of land to which he
claimed title with the land subject-matter of the suit.
(b) The plaintiff also
had to establish all his boundaries.
(c) Where there was
proper orientated plan drawn to scale which made compass
bearing vague and uncertain, the Court would hold that
the plaintiff had not discharged the owners of proof of
his title.”
In this case both 1st
to 5th plaintiffs and the 6th plaintiff are claiming two
different or separate lands which are described in
paragraph 4 of the Amended Statement of claim. In
paragraphs 10 and 11 of the Amended Statement of claim
the plaintiffs alleged that their said lands are within
the lands which the family of Ashaley Botwe have
declared as their lands in the Statutory Declaration
dated 4/5/76 and registered as 761/1977. In his judgment
the learned trial judge stated that the Statutory
Declaration in question encompassed “a vast area of
land in which the lands of the 1st –5th plaintiffs as
well as the 6th plaintiff were comprised”. In his
judgment the learned judge also said inter alia: “Before
I proceed further, it is important in my view to say
that both the 1st – 5th plaintiffs and the 6th plaintiff
claim different and or separate portions of land against
the 1st defendant and that the only common question they
have against the 1st defendant is that relating to his
encroachment upon their separate and distinct land
holdings.
(The emphasis is mine)
It is significant to
note that none of the plaintiffs gave evidence in
support of their claim. The record of proceedings
reveals that all their witnesses called to identify or
describe the land in dispute gave conflicting
boundaries. Their descriptions of the boundaries
encompassing the respective lands they were claiming not
only conflicted with each other but also differed from
the boundaries contained in paragraph 4 of the Amended
Statement of claim. Besides the 4th plaintiff the only
plaintiff who gave evidence could not describe the
portion of their land, which the 1st defendant’s family
had included in their Statutory Declaration registered
as 761/1977. In a situation like this where the
plaintiffs were also asking for an order of perpetual
injunction the law expects them to attach site plans to
their claims to show if the plots of land they are
claiming really fall within the Ashaley Botwe Family
registered lands. They should have tendered a
“Surveyor’s plan” duly orientated detailing their land
in contradistinction from the land the Family of the 1st
defendant holds. In this case they could not even call
any boundary neighbor or boundary owner to testify for
them. It is evident from the record of proceedings that
on the 20/3/98 long before the hearing of the case
started a motion was filed on behalf of the 1st
defendant by his counsel praying the Court for an Order
to appoint an independent qualified licensed surveyor to
demarcate the respective boundaries off the plaintiffs
and the defendants lands on the ground. It was pointed
out to the Court that an independent surveyor was
essential since any site plan produced by the plaintiffs
would only be self-serving. This application in my view
was necessary to forestall the vagueness, which
characterized the testimony of the plaintiffs in their
attempt to prove their boundaries.
The motion as the
record shows was supported by an affidavit. The
plaintiffs however opposed the application and it was
dismisses. Thus the Court lost the benefit of a proper
survey of the area in dispute to be conducted by a
licensed surveyor and a plan properly orientated and
drawn to scale proposed.
It is observable that
in his judgment the trial judge demonstrated that he was
not certain and sure about the extent of land the
plaintiffs are claiming as included in the lands
declared in the 1st defendants Statutory Declaration…
that had been registered with the Lands Commission as
No. 761/1977 and stamped as AC 4345/76. the plaintiffs
failure to specifically identify their land within the
1st defendants statutory declaration which had site plan
describing the 1st defendants family land attached was
reflected in the judgment of the trial judge. In both
amended statements of claim filed by the plaintiffs the
6th plaintiff’s claimed as contained in paragraph 4 of
land measuring 793.23 acres. Even though no evidence was
led by 6th plaintiff to prove the said acreage the trial
judge in his judgment entered judgment for the 6th
plaintiff for a land acreage of 1,793.231 acres instead
of 793.23 acres claimed in the two amended statement of
claim filed by the plaintiffs.
Apparently it is to
forestall such uncertainties and discrepancies that it
was held in KWABENA Vrs ATUAHENE (cited above) that the
party to a claim for declaration of title should
establish positively the identity of the land which he
claimed title with the land subject matter of the suit.
I hold that the
plaintiffs failed to discharge the burden of proof of
the identity of the land claimed.
The next grounds which
I want to deal with are ground (k) and (I) of the
additional grounds of Appeal. I will deal with them
together.
Ground (k) states “The
learned trial judge erred by stating in his judgment
that the land claimed by the 6th plaintiff was
1,793.231, instead of 793.23 acres as contained in their
two (2) Amended Statement of claim both filed on 10th
April, 1997 and 14th July, 2000 respectively.
It was submitted by
learned counsel for the 1st defendant that the 1st
defendant filed his amended statement of defence on the
21/5/97 in which he specifically denied the averments in
the plaintiff’s statement of claim dated 10/4/97, which
was the pleading upon which the plaintiffs based their
oral evidence. As said, the plaintiffs did not lead any
evidence on the amended statement of claim dated 4th
July 2000 which amendment was made during addresses and
after close of case. Counsel maintained that to the
averments contained in the 1st defendant’s amended
statement of defence filed on the 21/5/97 plaintiffs did
not file a REPLY and therefore did not dispute or
challenge the averments contained in the said amended
statement of defence. 1st defendant for instance made
averments in paragraphs 5, 7, 10, 11, 19, and 20 against
which the plaintiffs should have reacted in order to
join issue with the 1st defendant. But the plaintiffs
did not reply. Counsel contended that the legal
consequence is that the plaintiffs had no answer to the
1st defendant’s averments, and that under the
circumstances the 1st defendant needed not to call
evidence to prove any of the assertions contained in the
Amended statement of defence. He cited FORI Vrs AYIREBI
and OTHERS (1966) G.L.R (Supreme Court) page 627 at page
630 holding (6) which states, “When a Party had made an
averment and that averments was not denied, no issue was
joined and no evidence need be led on that averments”.
In answer to the above
submission learned counsel for the plaintiffs reacted by
arguing that the so called pleadings contained in the
amended statement of defence which were not challenged
by way of reply were pieces of evidence which should not
have come into pleadings, and therefore there was no
need for a formal Reply. Secondly according to counsel
for the plaintiffs if the 1st defendant considered these
averments as pleadings, which should have been
challenged, why did he set them out as issues in the
absence of REPLY? Counsel considered the ground not good
enough and therefore should be dismissed.
To enable me to
appreciate the full effects of the submissions of
counsel for both parties, I will reproduce hereunder
verbatim some of the relevant averments contained in the
1st defendant’s amended statement of defence filed on
the 21/5/97. In paragraphs 5, 6, 7, 13, 19, of the
amended statement of defence the 1st defendant pleaded
“(5) In denial of paragraph 4 of the statement of claim
1st defendant avers that the parents of the plaintiffs
were the linguists to the Ashaley Botwe Family and they
could not have held separate allodial title to lands in
their own right within Ashaley Botwe lands and it is
uncustomary and contrary to tradition for an allodial
owner of land to hold the traditional office of linguist
in Ashaley Botwe.
“(7) In further denial
of paragraph 5 of the statement of claim, 1st defendant
says that plaintiffs parents were granted portion of
Ashaley Botwe lands to settle thereon and that the
parents of the plaintiffs met the ancestors of the 1st
defendant already in occupation of all present day
Ashaley Botwe lands as described in the Statutory
Declaration with Registration No.761/1977 AC 4345/76.
(13) In further denial
of paragraph 8 of the statement of claim 1st defendant
states that their ancestors were the original settlers
of all Ashaley Botwe lands and that their ancestors
subsequently settled the plaintiffs forebears at Sraha
and those of Nmai Dzorn and all others within Ashaley
Botwe lands and it is significant to mention that the
descendants of Adjetey Agbosu and Okpalor Sowah Din and
his children of Nmai Dzorn served Ashaley Botwe Chiefs
as linguist and their descendant also followed in
holding that traditional office.
(19) In further denial
of paragraph 13 off the statement of claim 1st
defendant’s Family were and are the owners of all the
lands (including “Sraha” lands and Nmai Dzorn lands)
described in the Statutory Declaration mentioned herein.
That sometime in May 1982 a Site inspection was
conducted by the Lands Commission Secretariat officers
in respect of Adjetey Obene’s application for
Registration of a Statutory Declaration, relating to
Sraha Lands, which conflicted with the 1st defendant’s
family said Statutory declaration No. AC 4345 and No.
761/1977. At the Site of Inspection, Numo Ashong Mensah,
Head of Adjetey Agbosu family, Alfred Adjeia Ablor,
Forster Adjeia Akpor, Adjetey Agbosu and Kwaofio Ablor
all the aforementioned names members of the Adjetey
Agbosu Family who are now claiming Freeman family lands
situate at Sraha, were present during the inspection and
were among the 50 people, including Numo Ashitei Adashie
son of the Numo Mensah Sraha and Stool father to Nii
Ashitwei Akonfra III Teshie Mantse who bore witness for
Nii Ashaley Botwe Family, as the accredited owners of
the portion of Ashaley Botwe lands known as Sraha –
where the Freeman family lands are situate. (the
emphases is mine)
(19a) The 1st defendant
says since their ancestors acquisition and settlement of
the land in dispute 1st defendant’s Family have
exercised overt acts of ownership in respect of Nmai
Dzorn lands by
(b) Nii Ashaley Botwe
settled Numo Mensah Adjeia and other at the time when
Nii Amon-Nkpa, was the chief of Ashaley Botwe.
(c) In 1941, he settled
Mr Acheampong, cattle owner, with his two cattle
drovers, Alhaji Yoro and when Acheampong left, Alhaji
Brahko and Alhaji Yoro came and performed custom to Nii
Afutu Kotei (then chief of Ashaley Botwe).
(d) In 1956 Nii Afutu
Kotei cause a school (Primary and Middle) to be built at
Nmai Dzorn.
(e) In 1985 the 1st
defendant (now the Chief of Ashaley Botwe) settled Dr
Allotey and General Arnold Quainoo at Nmai Dzorn Area.
No one raised a finger as at now until 25th March, 1997
when the 6th plaintiff applied and joined this suit”.
It is significant to
note that in spite of these serious averments and claims
by the 1st defendant as contained in their Amended
statement of defence quoted above the plaintiffs failed
to react by filing a REPLY or an answer challenging
these allegations. As was decided in FORI Vrs AYIREBI
and OTHERS (supra) “When a Party had made an averment
and that averment was not denied, no issue was joined no
evidence need be led on that averment.”
In his judgment the
trial judge stated the standard by which he was going to
determine the case. He said as follows in his (page 289)
judgment “I think that the essence of pleadings is to
enable the parties to a contest to put forward the
issues to be tried and in this particular case, the
effect of the pleadings as can discerned from the
requirements of the evidence Decree particularly the
sections quoted above, places on the 1st defendant in
terms of defence which he asserts, the obligation to
prove grants referred to in defence of 21/5/97 (see in
particular paragraph 5, 7 and 8). By their cumulative
effect the 1st defendant is required as a matter of
obligation to prove that indeed the plaintiffs ancestors
were granted the land on which they are by his
ancestors.”
(The emphasis is mine)
As it is indicated in
the record of proceedings the plaintiffs put forward
their claim in their “Amended Statement of Claim” filed
on the 10/4/97 which was again amended at the time
counsel were addressing Court on the 14/7/2000. The 1st
defendant filed his Amended Statement of Defence on the
21/5/97. An examination of the 1st defendants amended
statement of defence makes it clear that the 1st
defendant denied specifically the averments in the
plaintiffs Amended Statement of claim dated 10/4/97,
which was the pleading upon which the plaintiff based
their oral evidence. It is note worthy that in the
amendment of the 14/7/2000 the plaintiff’s amended only
paragraph 1 of the statement of claim of the 10/4/97.
As a aforesaid, to the
averments contained in the 1st defendant’s Defence the
plaintiffs could not REPLY. In order words the
plaintiffs did not file reply to challenge the averments
in the 1st defendant’s statement of defence. In these
circumstances, the learned trial judge was in error when
he stated that the 1st defendant was under obligation to
prove the averments in paragraphs 5, 7 and 8 to his
Amended Statement of Defence.
Furthermore, as the
defendant in the case, the 1st defendant had no
obligation to prove his defence. The established
principle in land law is that a plaintiff in an action
for a declaration of title assumed the heavy burden of
proof and the plaintiff must succeed by the strength of
his own case and not by the weakness of the defendant’s
see Oppong Kofi and another Vrs Fofie (1964) G.L.R. 174
SC and also Banga and Others Vrs Djanie and another
(1989-90) G.L.R. 6510.
In MALM Vrs LUTTERODT
(1963) Part 1 at page 1 SC. It was held in Holding (1)
that “the Defendant in an action for declaration of
title assumes a legal burden of proof only when he
counter-claims for a declaration of title in his favour.
That was not so in this case.”
In this case the 1st
defendant did not counter-claim. And since his defence
was not challenged the trial judge erred when he placed
on the 1st defendant an obligation to prove his defence.
As already stated
Ground (1) of the additional grounds of Appeal states
“The learned judge erred by stating in his judgment that
the land area claimed by the 6th plaintiff was 1,793.231
instead of 793.23 acres as contained in the two (2)
amended statement of claim filed on 10th April, 1997 and
14th July, 2000 respectively.
In giving judgment in
favour of the 6th plaintiff, the learned judge said as
follows:
“I also declare that
title to the land described in relief C to the
endorsement in favour of the family of the 6th
plaintiff. Further, since from the admitted evidence the
1st defendant has been unable to prove that the said
plaintiffs are on their lands, by virtue of grants from
them. I think that from the evidence it accords with
good reasons that the registration numbered variously as
4345/76 and 671/1977 and delineated in the plan attached
to exhibit K was in respect of land other than that
which belongs to the people of Ashaley Botwe.”
As endorse on the Writ
of Summons in relief C the 6th plaintiff claimed as
follows:
“An order of
declaration of title in the 6th plaintiff Family of ALL
THAT piece or parcel of land containing on approximate
area of 1,793.231 acres situate at Nmai Dzorn in Accra,
Greater Accra Region of the Republic of Ghana bounded on
the North on the NORTH WEST by Ashaley Botwe lands
measuring a total distance of 11010 feet more or less on
the NORTH-EAST by University of Ghana Farm and Animal
Husbandry measuring a total distance of 14,550 feet more
or less on the South by Trebi Stre Stream and pond
measuring a distance of 14,500 feet more or less.”
As already found in
this judgment even though the capacity of the 6th
plaintiff was challenged he never gave evidence on his
behalf and never led evidence to prove his capacity to
institute the action. Again the record of proceedings
discloses at page 186 that when the 6th plaintiff was
called by his counsel to enter the witness, he did not.
Instead PW4 entered the
witness box to give evidence on behalf of the 6th
plaintiff without disclosing a proper authority. In his
evidence PW4 described the land claimed by the 6th
plaintiff as follows:
On the NORTH by Ashaley
Botwe, on the WEST by the University Farm. On the SOUTH
by Adjiringano and Djornamor at a point where is a
Stream called Trebi. On the west by SRAHA”. It is patent
from the evidence of PW4 that he described a land which
is different from the land he is claiming in Relief
(quoted above). In Relief C whereas the University of
Ghana Farms was described as lying on NORTH-EAST of the
land in dispute, in his testimony on oath PW4 claimed
that the University of Ghana Farms was on the west side
of the land in dispute. That it is SRAHA, which lies on
the West. Also in Relief (c) the land claimed by the 6th
plaintiff was bound on the South by Trebi Stream and a
pond. PW4’s evidence was that on the South his land was
bounded by Adjiringano and Djornamor at where there is a
stream called Trebi. PW4’s never gave evidence about the
acreage of the land.
The 6th plaintiff
failed to establish positively the identity of the land
that he claimed. And as the learned trial judge found as
fact that the land the plaintiffs are claiming are
within the lands registered by the 1st defendant in the
Statutory Declaration as 672/1977, the plaintiffs ought
to have supported their claim as aforesaid by a relevant
Surveyor’s Site Plan which would positively map out vis
a vis that of the 1st defendant’s land.
It is again settled Law
that where the plaintiff in his statement of claim drops
any cause mentioned or any relief claimed on the Writ,
he will be deemed to have elected to abandon it see
CARGIL Vrs BOWER (1876) Ch D 78 and NYARKO and ANOTHER
Vrs bank of Ghana (1973) 1 G.L.R 70 at page 72.
In this case it is
evident that in his Relief C quoted above, of the Writ
of Summons the 6th plaintiff claimed a land acreage of
1,763.231 acres but in the amended statement of claim
filed on the 10th April, 1977 and 14th July, 2000
respectively the 6th plaintiff’s claim was for 793.23
acres. And yet the trial judge gave the 6th plaintiff
judgment for Relief C with acreage of 1,763.231 acres
although that relief had been abandoned.
I hold that the trial
judge was in grave error in granting to the 6th
plaintiff, in his judgment, much more land area than he
claimed especially as the 6th plaintiff dropped his
claim of a land area of 1,793.231 for 793.23 acres in
the amended statements of claims.
In DAM Vrs ADDO (1962)
2 G.L.R. 200 SC the Supreme Court condemned a similar
conduct by holding that “A court must not substitute a
case contrary or inconsistent with that which the party
himself puts forward whether he be the plaintiff or the
defendant”. It is my view that the error made by the
trial judge stemmed from the inability of the plaintiffs
to specifically identify the land they were claiming.
It is important to note
that, in Relief (f) 9 of the plaintiff’s Writ of Summons
the plaintiffs claimed as follows:
“(f) Trespass against
the 1st defendant in unlawfully going unto the
plaintiffs land and allocating portions of the said land
to persons without the authority of the plaintiffs.
(9) Damages for
Trespass on the 6th plaintiffs portion of the land
contained in the said Statutory Declaration”.
It is deducible from
the above relief that the plaintiffs were repeating
their claim that the land in dispute is within the lands
declared by the 1st defendant’s family in the statutory
declaration stamped as AC 4345/76 and registered as
761/1977 with the Lands Commission. It is on record that
the Statutory Declaration was attached with a Site Plan
containing the description of the land in the said
declaration so that as plaintiffs, they should have led
evidence to establish the identity of these lands within
the Statutory Declaration of the 1st defendant’s family
land. They failed to lead any evidence to establish
positively the identity of the lands, the 1st defendant
had trespassed upon. In respect of the plaintiffs relief
(f) and (g) which talks about trespass the trial judge
made these findings at page 285 of the record of
proceedings. He said “I shall before passing to the
evaluation of the evidence in this matter pause to say
that from the plaintiffs’ amended pleadings of 4/7/2000
there is nothing disclose against the 1st defendant as
far as claim for damages for trespass contained in the
endorsement as (f) and (g) goes. Consequently, I desire
not to detain this Court’s time in respect of the
reliefs but proceed to have the said reliefs dismissed”.
In reaction to the
above decision of the trial judge Counsel for the
plaintiffs made the following submission in his written
submission. “The plaintiffs’ primary objective in their
respective claim was to have statutory declaration by
the 1st defendant unlawfully incorporating the whole of
land belonging to the plaintiff cancelled and further to
obtain declaration of title to the land claimed against
the 1st defendant family”.
Learned Counsel also
agreed that the plaintiffs did not call any witness to
prove Trespass endorsed on the Writ and the learned
trial judge was right to dismiss reliefs (f) (g) of the
plaintiffs claim.
Now the pertinent
questions to be asked are firstly if the 1st defendant
had not been liable to claim (f) and (g) of the
plaintiffs writ, then what lands are the plaintiffs
complaining about? Secondly, what parcel of land
belonging to the plaintiffs has the 1st defendant and
his family unlawfully incorporated in their Statutory
Declaration? It is my view that throughout the
proceedings the plaintiffs evinced an attitude of not
being sure or certain of the identity of the land being
claimed by them. They tried to shift the burden of proof
of title to the 1st defendant and in so doing attempted
to look for weaknesses in the case of the 1st defendant.
I think having come to the conclusion to dismiss reliefs
(f) and (g) of the plaintiffs claim the learned trial
judge should have declared that the plaintiffs failed to
discharge the burden of proof required of a plaintiff
who goes to Court for Declaration of title to land and
permanent injunction.
It is on record that in
his judgment the trial judge chose to deal with (d)
endorsed on the Writ of Summons as ALTERNATIVE to relief
(a).
Relief (d) reads “In
the alternative, cancellation or expunging from the
records of Land Commission Secretariat the Statutory
Declaration of 4th May, 1976 stamped as AC 4345/76 as
same was secretly accepted and plotted and recorded in
the Lands Commission Secretariat records without giving
the general public notice of the said publication”.
In paragraphs 10 and 11
of the plaintiffs Amended Statement of claim dated
10/4/97, which was the pleading upon which the
plaintiffs based their oral evidence, the plaintiffs
pleaded.
Paragraph (10) that
sometime in 1976, the 1st defendant caused Statutory
Declaration dated 4th May, 1976 stamped as AC 4345/76
made by Numo Ashaley Nikoi, Nii Amasa Nikoi, Nuumo kotei
Franter and Clement Kudjo to be processed by the
predecessor of the 3rd defendant for registration and
same registered.
(11) That the land of
which the declaration of ownership was made consists of
lands other than the 1st defendants land in that it
unlawfully included the whole of the land particularly
described in paragraph 4 herein and belonging to the
plaintiffs without the consent and authority of the
plaintiffs.”
To these averments the
Land Commission (the 3rd defendant) in paragraphs 6, 8
and 9 of its statement of defence pleaded as follows:
“(6) In answer to
paragraph 10 of the statement of claim the 3rd defendant
says that there is plotted in its records, a Statutory
Declaration dated 4th may, 1976 stamped as No. AC4345/76
and made by Numo Cephas Ashaley Nikoi, Nii Amasa Nikoi,
Numo Tawiah Franta, Numo Kotey Franta and Clement Bortie
Kodjo.
(8) In answer to
paragraph 19 of the statement of claim, the 3rd
Defendant says that since the decision of the LANDS
COMMISSION to have Declarations published in the
Newspaper was taken in 1983 , its plotting in the
records in 1977 of the Declaration of 4th May, 1976
stamped as No. AC 4345 cannot be cancelled or expunged
from the records by reason of non-publication.
(9) In answer to
paragraph 20 of the statement of claim, the 3rd
Defendant says that it has an inherent duty to keep and
maintain accurate and reliable records and not
conflicting or muddled records.” It is noticeable that
to the averments contained in the LANDS COMMISSION (3rd
defendant) statement of defence the plaintiffs 1 to 5
and 6th plaintiffs did not file a REPLY to challenge
them. The plaintiffs should have reacted to join issue
with the 3rd defendant. By declining to react to the
LAND COMMISSION’S statement of defence the legal
consequence is that the plaintiffs had no answer. The
LAND COMMISSION therefore need not call evidence to
prove the assertions contained in its defence. The Law
was stated in FORI Vrs AYIREBI and Others (Supra) that
“when a Party had made an averment and averment was not
denied, no issue was joined and no evidence need be led
on that averment”.
It is interesting to
note that although the plaintiffs did not challenge or
dispute the averments made by the LAND COMMISSION (3rd
defendant) by failing to file a REPLY, in his judgment
the learned trial judge made the following findings and
ORDER.
“….. And examination of
the plan attached to the said declaration show that the
names of Sraha and Mayor lands were left out off the
plan although from the evidence it is not disputed that
these lands are included in the declaration.
Consequently, and noting also that the said publication
was done without giving notice to the whole world of the
intention to register such a declaration as I notice in
the practice of the Lands Commission by giving notice of
such intended registration in the Dailies, a fact which
I take judicial notice of. I direct that the entry in
the records of the Lands Commission and the Deeds
Registry relating to the said declaration be expunged,
it having been done to overreach the interest of the
true owners of Sraha and Mayor Lands”.
It will be recalled
that the evidence proffered by the plaintiffs was that
the land they were claiming was included in the lands
the 1st defendant’s family declared in the Statutory
Declaration and which had attached to it a plan,
delineating their lands. The plaintiffs also claimed
that the lands described in the plan – Exhibits K
attached to the statutory Declaration were lands other
than that which belong to the people of Ashaley Botwe.
Now since the plaintiffs failed to lead evidence to
prove the extent of their land included in the lands
declared in the plan attached to the Declaration, the
trial judge was in error in finding that the 1st
defendant’s lands declared included the plaintiffs’
lands. Again the record of proceedings clearly intimates
that the plaintiffs failed to react to the Defence filed
by the Lands Commission (the 3rd defendant). This by
implication admitted the averments therein contained
particularly paragraph 8 of the Defence. I hold that the
learned judge went wrong when he said in his judgment
that the 1st defendant published his Statutory
Declaration “without giving notice to the whole world of
the intention to register such declaration”, I hereby
set aside the Order that the entry in the records of the
Lands Commission and the Deeds Registry relating to the
said declaration be expunged, as the said Order is not
warranted by the evidence on record. Besides the
implication of the learned judges findings is that the
contents of the Statutory Declaration were false and if
that is the case the 1st defendant committed the
criminal offence of deceit of a public officer which is
under Section 251 of the Criminal Code 1960 (Act 29) and
in that case the plaintiffs should not in law have
prosecuted the civil case until the first defendant had
first been prosecuted for the criminal offence. Moreover
so long as the LANDS COMMISSION had taken a decision and
accepted the contents of the Statutory Declaration
submitted to it by the 1st defendant’s family as true
and the decision had not been set aside, the Court,
cannot question its validity.
In the light of the
matters canvassed above, the appeal is allowed and
judgment is given in favour of the 1st defendant.
A. ESSILFIE BONDZIE
JUSTICE OF APPEAL
FARKYE, J.A:
I agree.
S. T. FARKYE
JUSTICE OF APPEAL
ANSAH, J.A.:
I also agree.
J. ANSAH
JUSTICE OF APPEAL
COUNSEL
MR. I. R. QUANSAH FOR
THE 1ST – 5TH PLAINTIFFS/RESPONDENTS.
MR. E. V. ADJETEY FOR
THE 6TH PLAINTIFF/RESPONDENT
MR. ORLEANS-LINDSAY FOR
THE DEFENDANT/APPELLANT
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