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Land – Ownership –
Declaration of title - Act of
Possession – Grantor – Boundary
- Whether or not the defendant
proved that the disputed land is
within Otinshie village lands
HEADNOTES
My Lords, in this
appeal the parties are disputing
over the ownership of a piece of
land at East Legon, Accra, with
each party claiming through
disputing original owner
families both of which hail from
Teshie. The plaintiff claims the
land through Ashong Militse
Family of Odaiteitsewe whereas
the defendant derives his title
from the Osae Family of
Otinshie. The plaintiff in
addition makes a case based on
possession. The trial High Court
held that on the evidence, the
land in dispute falls within the
land of Osae Family and
therefore decided in favour of
the defendant. The Court of
Appeal upon review of the
evidence affirmed the judgment
of the High Court
HELD
The final ground urged by the
plaintiff is that he erected six
tall pillars on the land before
the defendant removed them and
entered the land and that
sparked this litigation. We do
not consider six pillars as
sufficient act of possession
that can ripen into ownership
against the defendant’s grantor
whose testimony is that the
disputed land has always been
within their side of the
boundary with the plaintiff’s
grantor.
In conclusion, we have not been
provided with sufficient grounds
that would persuade us to
disturb the concurrent findings
of the two lower courts. In the
result the appeal fails in its
entirety and is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Achoro v Akanfela [1996-97]
SCGLR 209,
Asibey v Gbomittah & Commander
Osei [2012] 2 SCGLR 800
Acquie v. Tijani [2012] SCGLR
1252
Gregory v Tandoh [2010] SCGLR
971
Djanie v Banga [1989-90] 1 GLR
510.
Agyei Osae & Ors v Adjeifio &
Ors [2007-2008] 1 SCGLR 499
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL
YAW OPOKU-ADJAYE FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
FRANK NARTEY FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
PWAMANG, JSC:-
My Lords, in this appeal the parties are disputing
over the ownership of a piece of
land at East Legon, Accra, with
each party claiming through
disputing original owner
families both of which hail from
Teshie. The plaintiff claims the
land through Ashong Militse
Family of Odaiteitsewe whereas
the defendant derives his title
from the Osae Family of
Otinshie. The plaintiff in
addition makes a case based on
possession. The trial High Court
held that on the evidence, the
land in dispute falls within the
land of Osae Family and
therefore decided in favour of
the defendant. The Court of
Appeal upon review of the
evidence affirmed the judgment
of the High Court.
We are therefore here dealing
with a case of concurrent
findings which on the
authorities we have to be slow
in reversing. See
Achoro
v Akanfela [1996-97] SCGLR 209,
ASIBEY V GBOMITTAH & COMMANDER
OSEI [2012] 2 SCGLR 800 and
ACQUIE V. TIJANI [2012] SCGLR
1252. However, the case
being pressed on us by the
plaintiff in this second and
final appeal is that the view of
the evidence taken by the High
Court and affirmed by the Court
of Appeal is not supported by
the record. He prays us to set
aside the concurrent findings
and has referred to us the case
of Koglex Ltd v Field (No.2)
[2000] SCGLR 175.
My Lord, in the case of
Gregory v Tandoh [2010] SCGLR
971, the Supreme Court
speaking through Dotse, JSC laid
down the grounds on which the
court would depart from
concurrent findings in the
following passage at page 986 of
Report;
“…….a second appellate court,
like this Supreme Court can and
is entitled to depart from
findings of fact made by the
trial court and concurred in by
the first appellate court under
the following circumstances:
1.
Where from the record the
findings of fact by the trial
court are clearly not supported
by evidence on record and the
reasons in support of the
findings are unsatisfactory.
2.
Where the findings of fact by
the trial court can be seen
from the record to be either
perverse or inconsistent with
the totality of evidence led by
the witnesses and the
surrounding circumstances
of the entire evidence on
record.
3.
Where the findings of fact made
by the trial court are
consistently inconsistent with
important documentary evidence
on record.
4.
Where the first appellate court
had wrongly applied the
principle of law in Achoro vrs
Akanfela (already referred to
supra) and other cases on the
principle, the second appellate
court must feel free to
interfere with the said findings
of fact, in order to ensure
that absolute justice is done in
the case.”
It is against the background of
these principles that we have
reviewed the evidence led in
this case and considered the
legal arguments of the parties.
The first ground of disagreement
the plaintiff has about the
judgment of the Court of Appeal
is their rejection of the
supposed judgment plan, Exhibit
“H” of the Ashong Militse Family
made pursuant to the decision of
the Court of Appeal in 4de The
family at the trial relied
heavily on that plan as
constituting the extent of land
it owns at Adjiringano. The
reason assigned by the trial
court and the Court of Appeal
for the rejection is that the
family did not counter claim for
declaration of title to such
land in Djanie v Banga and no
declaration of title was granted
by the court in the family’s
favour in that case. This
finding of the Court of Appeal
is supported by the record as it
is not in dispute that the court
in Djanie v Banga did not decree
title to any land in Odai Banga,
through whom the Ashong Militse
Family claims the land in
question. The fact that the
family had that extent of land
plotted in its name in the
records of the Lands Commission
whereas no title to the land was
decreed in its favour by the
court does not change the status
of such a plan. Consequently,
there is no ground for us to
reverse the current findings of
the High Court and Court of
Appeal on this issue. The effect
of that finding is that, since
the land in dispute does not
fall within that plan, relied
upon by the plaintiff, he failed
to prove the root of title of
his grantor.
The second ground of
disagreement by the plaintiff is
that, even if the land does not
fall within the plan of his
grantor, it equally falls
outside the land adjudged by the
Supreme Court in favour of the
Osae Family (defendant’s
grantor) in the case of
Agyei
Osae & Ors v Adjeifio & Ors
[2007-2008] 1 SCGLR 499 at p
508. This contention is based on
the observation that the Supreme
Court in the said case adjudged
the Osae Family owner of the
lands of “Otinshie village, i.e
their buildings, farm lands,
cemetery, etc” and rejected a
larger land the family claimed
in a survey map tendered in the
case. So, the question that
arises on this ground is whether
the defendant proved that the
disputed land is within Otinshie
village lands as explained in
the judgment of the Supreme
Court referred to above.
At the trial, it emerged in
evidence that at a point in time
the two families settled their
common boundary but the
representatives of either family
testified that the disputed land
falls on their side of the
settled boundary. The record
does not indicate that this
settled boundary was documented
and attested to by the two
families. The trial judge who
heard and observed the witnesses
came to the conclusion that the
land falls within lands of
Otinshie village, its buildings,
farm lands, cemetery and their
environs and therefore within
Osae Family land. There is
evidence on the record in
support of this finding and it
has been affirmed by the Court
of Appeal. The plaintiff now
submits that, based on the plans
that are in evidence, the land
falls outside a cadastral plan
the Osae Family made before the
Supreme Court judgment was given
in the family’s favour in 2007
so the family’s land should be
confined to that plan. The
defendant on his part contends
that the land is within that
plan. From the judgment of the
Supreme Court referred to above,
the Osae Family’s land was not
tied to that plan so we cannot
in a different case involving
different parties pretend to
amend that earlier judgment. In
the circumstances, we find no
grounds to set aside the
concurrent findings of the High
Court and the Court of Appeal on
this issue too so we affirm that
the land in dispute is within
Osae Family land at Otinshie.
The final ground urged by the plaintiff is that he
erected six tall pillars on the
land before the defendant
removed them and entered the
land and that sparked this
litigation. We do not consider
six pillars as sufficient act of
possession that can ripen into
ownership against the
defendant’s grantor whose
testimony is that the disputed
land has always been within
their side of the boundary with
the plaintiff’s grantor.
In conclusion, we have not been
provided with sufficient grounds
that would persuade us to
disturb the concurrent findings
of the two lower courts. In the
result the appeal fails in its
entirety and is accordingly
dismissed.
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
V. J. M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF. N. A.
KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
YAW OPOKU-ADJAYE FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
FRANK NARTEY FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
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