Land – Ownership –
Declaration of title – Recovery
of possession - adverse
possession - Public lane or
thoroughfare - Cause of action
in public nuisance - Inherent
jurisdiction of the High Court -
Or 11 R 18 of the High Court
(Civil Procedure) Rules, 2004
(C.I.47) - Section 12 -
14 and 17 - Burden of
persuasion - Evidence
Act, 1975 (NRCD 323). Whether or
not the judgment of the Court of
Appeal is against the weight of
the evidence - whether or not
the view taken of the evidence
by the Court of Appeal is
correct – Whether or not the
disputed land lies at Okaishie
or it lies at Cowlane
HEADNOTES
The parties to this appeal are
litigating over ownership of a
rather small piece of land at
Okaishie in Central Accra which
they claim through their
respective
predecessors-in-title. The land
was acquired in the early
twentieth century when the city
of Accra was much smaller and
not laid out as we have it
today. The original acquisitions
of both predecessors-in-title
were covered by conveyances
which delineated their grants on
site plans. At the trial in the
High Court, the parties led oral
evidence and tendered their
respective documents and site
plans and a court appointed
surveyor prepared a composite
plan. The surveyor testified and
was cross-examined. At the
close of the trial, the High
Court gave judgment in favour of
the plaintiffs and granted the
reliefs they claimed save for
relief (e), a claim for damages
for trespass. Upon an appeal by
the defendants, the Court of
Appeal disagreed with the trial
judge’s findings on the
evidence, set aside its judgment
and found for the defendants.
Being aggrieved by the decision
of the Court of Appeal dated 15th
June, 2017, the plaintiffs
appealed from it to this court.
HELD
My opinion of the effect of the
admitted evidence in this case
is that, on a balance of
probabilities, the plaintiffs
proved a better claim to the
land in dispute as against the
defendants. Consequently, the
Court of Appeal erred when they
set aside the findings of the
High Court and decided in favour
of the defendants. Plaintiffs
are entitled to judgment on the
reliefs they claimed, save and
except their relief (c), which I
earlier on dismissed, and relief
(e) which the High Court did not
grant. The appeal therefore
succeeds in part and is allowed
in part.
DISSENTING OPINION:
The lawyer who entered
appearance to the action or suit
did so for and on behalf of all
the defendants but not only on
behalf of the 1st to
3rd defendants. The 2nd
defendant also testified for all
the seven defendants His
contention was that the 4th
to 7th defendants
were their tenants so the
defence put up covered all of
them. The 4th to 7th
defendants could not have
offered any defence different
from that of the owners of the
land. The Court of Appeal
therefore concluded rightly when
it held that plaintiffs did not
satisfy the burden of proof
imposed on them by the law since
on the balance of probabilities,
the defendants’ case was more
probable than that of the
plaintiffs. I will therefore
dismiss the appeal and uphold
the decision of the Court of
Appeal in reversing the trial
court’s judgment. Appeal
accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
Evidence Act, 1975 (NRCD 323)
Limitations Act, 1972 (NRCD 54),
CASES REFERRED TO IN JUDGMENT
Akufo-Addo v Catheline [1992] 1
GLR 377.
AG v PYA Quarries [1957] 2 QB
169
Kodilinye v Olu (1935) 2 WACA
336.
Odametey v Clocuh [1989-90] 1
GLR 14
NANA ASIAMAH ABOAGYE v
ABUSUAPANYIN KWAKU APAU ASIAM
[2019] 128 G.M.J. 254
Dolphine (No.3) v Speedline
Stevedooring Co. Ltd [1996-97]
SCGLR 514
Mmra v Donkor [1992-93] Part 4
GBR 1652
GIHOC v Hanna Asi [2005-2006]
SCGLR 458
DJIN v MUSAH BAAKO [2007-2008]
SCGLR 686
DAM v ADDO (1962) 1 GLR 200
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 8th
Edition, 2004
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
DISSENTING OPINION:
Y. APPAU
COUNSEL
AGNES OPAREBEA MANTE FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
C. K. KOKA FOR THE DEFENDANTS/
APPELLANTS/RESPONDENTS
MAJORITY OPINION WAS READ BY
PWAMANG,
JSC:-
The parties to this appeal are
litigating over ownership of a
rather small piece of land at
Okaishie in Central Accra which
they claim through their
respective
predecessors-in-title. The land
was acquired in the early
twentieth century when the city
of Accra was much smaller and
not laid out as we have it
today. The original acquisitions
of both predecessors-in-title
were covered by conveyances
which delineated their grants on
site plans. At the trial in the
High Court, the parties led oral
evidence and tendered their
respective documents and site
plans and a court appointed
surveyor prepared a composite
plan. The surveyor testified and
was cross-examined.
At the close of the trial, the
High Court gave judgment in
favour of the plaintiffs and
granted the reliefs they claimed
save for relief (e), a claim for
damages for trespass. Upon an
appeal by the defendants, the
Court of Appeal disagreed with
the trial judge’s findings on
the evidence, set aside its
judgment and found for the
defendants. Being aggrieved by
the decision of the Court of
Appeal dated 15th
June, 2017, the plaintiffs
appealed from it to this court.
In this judgment,
the
plaintiffs/respondents/appellants
shall be referred to as
plaintiffs and the
defendants/appellants/respondents
as defendants.
The only ground of appeal is
that the
judgment of the Court of Appeal
is against the weight of the
evidence. We are therefore
called upon to rehear the case,
review the evidence in the
record, and come to our own
conclusion as to
whether
the view taken of the evidence
by the Court of Appeal is
correct. See
Akufo-Addo v Catheline [1992] 1
GLR 377.
But, before proceeding to
examine the evidence, I wish to
clarify the matter about
public
lane or thoroughfare in the
area of the disputed land
pleaded by the plaintiffs in
paragraphs 15 and 16 of their
statement of claim and the
defendants in paragraph 7b of
their amended defence. The
plaintiffs averred that the
defendants have occupied and
built structures on a public
lane that, from the site plan in
the document of their
processor-in-title, was supposed
to lay south of their land.
Based on this averment, they
claimed in their relief (c) for
an order for defendants to
demolish the structures they
have on the said public lane.
However, even a casual reading
of the whole statement of claim
makes it obvious that that
matter was completely extraneous
to the substantive case of the
plaintiffs and their claim for
declaration of title to land
covered by their document of
title. If by their own pleadings
that public lane did not form
part of their land, on what
legal ground could they claim
relief in respect of it? The
plaintiffs have not described
the boundaries of the public
lane so in respect of which land
are the structures to be
demolished? A
cause of
action in public nuisance
cannot lie in law as plaintiffs
alone do not satisfy the number
of complainants required for a
nuisance to qualify as public.
See AG
v PYA Quarries [1957] 2 QB 169.
What is more, civil suits on
public nuisance are brought by
the Attorney-General and not
private persons. Clearly
therefore, plaintiffs had no
cause of action against the
defendants as far as the alleged
public lane was concerned and
those averments and the
plaintiffs’ relief (c) ought to
have been struck out, sua
sponte, in the early stages
of the case as frivolous,
vexatious and likely to
embarrass or delay the trial of
the action. This the trial court
could have done pursuant to the
inherent
jurisdiction of the High Court
or Or
11 R 18 of the High Court (Civil
Procedure) Rules, 2004 (C.I.47).
Consequently, I shall
dismiss plaintiffs’ relief (c)
in limine.
The defendants too who could
have applied to the court to
strike out those offending
pleadings did not do so but
rather also pleaded that the
land allegedly owned by the
plaintiffs at Okaishie is a
public thoroughfare. The claim
of the plaintiffs is for a
declaration of title and whether
the land is a thoroughfare or
not is of no legal significance
as in law ownership of land is a
question completely different
from its use.
Because these frivolous and
vexatious pleadings were not
expunged, copious unnecessary
evidence was led on them thereby
beclouding the trial judge in
his consideration of the real
claims of the parties before
him. Despite the fact that the
Court of Appeal in their
judgment rightly took the view
that the matter of a public lane
or thoroughfare was irrelevant
to a determination of the case,
the parties in their statements
of case filed in this final
appeal have persisted in
discussing the question of the
location of the public lane at
length. That is a pointless
discussion because, from the
evidence on record, the present
lay of the area is different
from the zoning that pertained
about one hundred years back
when the ancestors of the
parties acquired their
respective lands.
When the irrelevancies are shorn
off the pleadings and evidence,
the established facts in this
case are quite simple and are
that, in 1910 the defendants
predecessor, Alhaji Shaibu
Alawiye, acquired a piece of
land described in their
indenture, which was not
registered under the applicable
law at the time, as situate
lying and being at Kimboo
Boundary Road Ussher Town,
Accra. Then in 1924, the
plaintiffs predecessor, Amidu
Butcher, acquired land adjacent
to and lying to the south of the
defendants’ predecessor’s land
and was given a document which
he registered at the Deeds
Registry. Plaintiffs’ ancestor’s
document described the location
of his land as being near Selwyn
Market, Accra, bounded on the
North by Alhaji Shaibu Alawiye
property and on the South by a
public lane. This positioning of
the two acquisitions is
reflected in the site plan in
plaintiffs registered document.
In their pleadings and oral
testimonies, the plaintiffs
state that the property of their
ancestor covered by their
indenture is the vacant land
presently lying south of Alhaji
Shaibu Alawiye’s Memorial House
at Okaishie so the court ought,
among other reliefs, to declare
them owners and make an order of
recovery
of possession in their
favour.
The defendants on their part
contend that the vacant land
being referred to by plaintiffs
is part of the land their
ancestor acquired in 1910 for
which the document was executed
for him. Furthermore, defendants
challenge the location of the
land covered by plaintiffs’
document and state that it
refers to a different property
and not the land in dispute. In
the oral testimony of 2nd
defendant, who testified on
their behalf, he said the land
in plaintiffs’ document lies at
Cowlane, off Club Road whereas
the land in dispute is at
Okaishie on Knutsford Avenue.
According to him, as the
plaintiffs’ document talks of
“near Selwyn Market”, it is
referring to a property on
Selwyn Market Street and
therefore at Cowlane in present
day Accra and could not be
referring to Okaishie in present
day Accra.
As I observed at the outset, the
lay of Central Accra has been
changing since 1910 when the
defendants predecessors-in-title
acquired his land. For example,
in 1910, Shaibu Alawiye’s land
was described in his indenture
as lying at Kimboo Boundary
Road, Ussher Town whereas today
the location is called Okaishie.
Then in his evidence, the 2nd
defendant claimed that at the
time Alhaji Shaibu Alawiye
acquired the land in 1910 the
street it shared boundary with
was called Government Street but
by his testimony he said the
street is now called Knutsford
Avenue. Curiously however,
whereas the Government Street is
stated in their site plan, their
indenture describes the location
as Kimboo Boundary Road. It is
the description of plaintiffs’
land in their indenture that is
the same as stated on their site
plan, namely; near Selwyn
Market. Therefore, the claim by
defendants that “near Selwyn
Market” in plaintiffs’ indenture
means today Cowlane and not
Okaishie, in the absence of
geographic evidence, is pure
conjecture.
What however is not disputed is
the fact that the plaintiffs
ancestor, Amidu Butcher,
acquired a land that shares
boundary with property of Alhaji
Shaibu Alawiye. The only
question is
whether
Amidu Butcher’s land is the
disputed land at Okaishie or it
lies at Cowlane as contended
by defendants. This is evident
from this cross-examination of 2nd
defendant at page 174 of the
record;
“Q. You said in this court that
Shaibu Alawiye has property
number 818A/3 situated at
Cowlane and it shares boundary
with plaintiffs’ land at
Cowlane, that is number D839/3
Cowlane?
A. Yes
Q. I put it to you that what you
said is not correct. Shaibu
Alawiye does not have any
property sharing boundary with
plaintiffs at Cowlane
A. It is clear that the site
plan and indenture presented by
plaintiffs shows that Shaibu
Alawiye has property sharing
boundary with plaintiffs at
Cowlane.”
Next, it has been established by
the evidence of the court
appointed surveyor, and
confirmed by the testimony of 2nd
defendant, that the current true
physical location of the land in
dispute is adjacent and lies to
the south of Shaibu Alawiye’s
House at Okaishie. See the
composite plan and report of the
surveyor, “CW1” at page 326, and
his evidence at pages 83-88 of
the record. I have taken
particular note of the fact that
the defendants in
cross-examining the surveyor did
not challenge the accuracy of
his work. Additionally, the
authenticity and validity of the
plaintiffs’ indenture registered
in 1924 was not impeached at the
trial.
From the above outlines of the
respective cases of the parties,
the question to be answered is;
which of the two cases does the
evidence render more probable
as required by
Section 12 of the Evidence Act,
1975 (NRCD 323). In
deciding to give judgment for
the defendants, the Court of
Appeal held that the plaintiffs
who sued for declaration of
title to land were by law
required to prove their claim
only on the strength of their
case and could not rely on any
weaknesses in the defendants’
case. They cited as authority
the West Africa Court of Appeal
case of
Kodilinye v Olu (1935) 2 WACA
336. With due regard to
them, that is a wrong standard
of proof for actions for
declaration of title to land
posited by the Court of Appeal.
In the case of
Odametey v Clocuh [1989-90] 1
GLR 14, the
Supreme Court at page 28 of the
Report, through Taylor, JSC
rejected that authority in the
following words;
‘It seems to me, with the utmost
respect, that the mechanical
application of this so-called
principle in actions for
declaration of title (the
genesis of which is traceable to
the erudite judgment of Webber
C.J. in the West African Court
of appeal on 18 June 1935)
should be deprecated. In the
said case, Kodilinye v. Odu
(1935) 2 W.A.C.A. 336 at 337-338
involving a declaration of
title, the learned Chief Justice
said:
"The onus lies on the plaintiff
to satisfy the Court that he is
entitled on the evidence brought
by him to a declaration of
title. The plaintiff in this
case must rely on the strength
of his own case and not rely on
the weakness of the defendant's
case. If this onus is not
discharged the weakness of the
defendant's case will not help
him and the proper judgment is
for the defendant. Such a
judgment decrees no title to the
defendant, he not having sought
the declaration. So if the
whole evidence in the case be
conflicting and somewhat
confused, and there is little to
choose between the rival
traditional stories the
plaintiff fails in the decree he
seeks, and judgment must be
entered for the defendant."
If the dictum of Webber C.J.
above stated over half a century
ago supports the proposition
that a weakness in the
defendant's case in an action
for a declaration of title must
not be considered in evaluating
the strength of the plaintiff’s
case no matter the nature of the
plaintiff's case, then the
dictum is now no more true of
the legal position in modern
Ghana, at least since the coming
into force of the Evidence
Decree, 1975 (N.R.C.D. 323).
Amissah J.A. in his usually able
manner has, however, stated the
true ambit of the application of
the principle. In Ricketts v.
Addo [1975] 2 G.L.R. 158 at 166,
C.A. he explained:
"The burden of persuasion which
a plaintiff has to satisfy in
every civil case is no more than
proof on a balance of
probabilities. In a trial
involving title to land like any
other civil trial, therefore, if
the defendant's case is measured
against the plaintiff’s and the
plaintiff’s is found more
probable, a determination which
necessarily involves the
balancing of the strength and
weakness of the rival claims,
the plaintiff’s case has to be
accepted. In the assessment of
claims, the judge will have to
examine the weakness of the
defence just as he has to
examine the weakness of the
plaintiff’s claim. The
legitimacy of the exercise or of
the plaintiff's assistance to
the court in highlighting these
weaknesses cannot be
questioned."’
Applying the standard of proof
on a balance of probabilities, I
observe from the evidence that,
it is an established fact that
the land in dispute being
claimed by the plaintiffs in
this action lies south of the
house of Alhaji Shaibu Alawiye
and this is in conformity with
the description in their
registered indenture and their
site plan used by the surveyor
for the survey and
superimposition. Therefore, the
documentary evidence gives
credibility to the case of the
plaintiffs that their ancestor’s
document refers to the disputed
land. It is however noted, that
though plaintiffs submitted two
site plans to the surveyor for
the superimposition, he did not
plot their 1924 site plan but
used only their second site plan
which was prepared in 2011,
shortly before the case was
filed. But in the case of the
defendants, when the site plan
they presented to the surveyor
as their land in the 1910
indenture of Shaibu Alawiye was
superimposed on the plan of the
disputed land as it presently
lies, their site plan fell off
the disputed land and lies to
the north of it. That position
of defendants site plan is
rather consistent with the case
of the plaintiffs that Shaibu
Alawiye’s property lies to the
north of Amidu Butcher’s land
acquired in 1924. In the
circumstances, I am of the
considered view that the failure
of the surveyor to plot the 1924
site plan of plaintiffs does not
weaken the plaintiffs’ case to
any significant degree since the
defendants site plan
corroborates their case.
Though on the ground the
defendants showed the surveyor
the boundaries of their land to
include the disputed land, their
site plan relates to a much
smaller land that does not
include the disputed land. The
explanation of the defendants
for the disparity between what
they showed on the ground and
what is contained in their site
plan is, that they had two site
plans of different sizes, a
larger one contained in the 1910
acquisition and a smaller one in
a lease that was granted to a
Lebanese developer after the
death of their patriarch. If
that were true, then why did
they hand the smaller site plan
to the surveyor and fail to
tender the 1910 one when they
claim it is larger?
In my understanding of the whole
evidence that was adduced, when
the strengths and weaknesses of
the respective cases of the
parties are assessed, the
documentary evidence leans more
in support of the case of the
plaintiffs than that of the
defendants, for the following
reasons; the plaintiffs
indenture is registered but the
defendants’ is not; the
description of their land
tallies with the site plan in it
whereas defendants’ site plan
bears a description different
from the document itself, and
finally and more importantly,
the true location of the land is
consistent with claim of
plaintiffs and the site plan of
defendants corresponds with the
location of the land as stated
in plaintiffs indenture. The
settled rule of the law of
evidence is, that where oral
evidence conflicts with and is
inconsistent with documentary
evidence that has not been
impeached on legal grounds or
through cross-examination, then
a court must prefer the
documentary evidence to the oral
testimony. See the case of
NANA
ASIAMAH ABOAGYE v ABUSUAPANYIN
KWAKU APAU ASIAM [2019] 128
G.M.J. 254. S.C.
The defendants testified that
the land in dispute was part of
the land their ancestor acquired
in 1910 but the documentary
evidence shows unequivocally
that it was not.
But the documentary evidence
does not resolve the claim by
defendants that Alhaji Shaibu
Alawiyie had another property at
Cowlane that shares boundary
with land of Amidu Butcher so it
is that land that is referred
to. That is because the surveyor
was not shown that land of the
defendants at Cowlane and they
did not tender a document
covering it. I therefore perused
the record for any evidence they
led to prove that claim. From
the record, the only evidence
proffered by defendants is the
bare assertion of 2nd
defendant when he testified that
Shaibu Alawiye has a house at
Cowlane that shares boundary
with Amidu Butcher’s land. In
any case, the 2nd
defendant in his testimony was
not specific as to the side of
their Cowlane property they
share boundary with Amidu
Butcher; whether north, south,
east or west. This is
significant because plaintiffs
1924 document was specific as to
the side their land shares
boundary with Shaibu Alawiye
which the documentary evidence
has corroborated. In the
cross-examination of 2nd
defendant quoted above, he was
directly challenged that Shaibu
Alawiye has no property at
Cowlane that shares boundary
with plaintiffs, but his only
answer was that it is the
plaintiffs’ indenture that says
so. That for me is shocking! 2nd
defendant’s basis for this
averment that is so material to
their case is the plaintiffs’
indenture?
Meanwhile, the defendants had in
cross-examining 2nd
plaintiff, who testified on
behalf of plaintiffs, suggested
to him that the boundary owners
of the land described in their
indenture are to be found at
Cowlane to which 2nd
plaintiff did not agree. Since
it is the defendants who allege
that plaintiffs’ document is in
respect of a land at Cowlane,
and they made it one of their
main defences to the action, it
was expected that they would
call evidence to prove that
Alhaji Shaibu Alawiyie has
property at Cowlane adjacent and
to the south of which Amidu
Butcher’s land lies. DW1 called
by defendants is supposed to be
a boundary owner of their
buildings at Okaishie and not at
Cowlane which their defence
talked of.
The settled position of the law
is that it is the party who
stands to lose on an issue if no
evidence is led on it that bears
the burden of proof as far as
that issue is concerned. This
principle is stated in
Sections 14 and 17 of
NRCD 323;
“14. Allocation of burden of
persuasion
Except as otherwise provided by
law, unless it is shifted a
party has the
burden of
persuasion as to each fact
the existence or non-existence
of which is essential to the
claim or defence that party is
asserting.
17. The burden of producing
evidence
Except as otherwise provided by
law, the burden of producing
evidence of a particular fact is
on the party against whom a
finding on that fact would be
required in the absence of
further evidence.”
In this case, if no evidence is
led on the alleged property of
Alhaji Shaibu Alawiye at
Cowlane that shares a southern
boundary with land of Amidu
Butcher, it is the defendants
who would lose on that issue so
they bear the burden of proof of
that fact. It was not for
plaintiffs to prove that their
ancestor’s 1924 acquisition was
not in respect of land at
Cowlane. That notwithstanding,
it was rather the plaintiffs who
led some evidence about a
Cowlane property as not
belonging to Amidu Butcher
whereas the defendants offered
no proof of their Cowlane
property. I am therefore of the
firm opinion that the defendants
have failed to prove the
allegation that the plaintiffs
document is in respect of an
acquisition of land at Cowlane.
From the evidence, it is common
cause between the parties that
the disputed land is not
developed but is being used by
traders, who plaintiffs
describes as squatters and
defendants claim they are their
tenants who pay monies to them
for using it for their
activities. But the Court of
Appeal in their judgment at page
444 of the record said as
follows;
“In the face of the fact that
the defendants have a house on
the disputed land: the Alhaji
Shaibu Alawayie House, with
title documents predating the
plaintiffs’ anscestor’s alleged
1924 purchase (the defendants’
is dated 1910), for a finding on
the identity of the area in
which the land in dispute, which
was contrary to the defendants’,
to be made, the learned trial
judge ought to have made same
not solely on the description
contained in the plaintiff’s
title document exhibit “A” and
the evidence of the plaintiff,
but on other corroborative
evidence, preferably from
official sources.” (emphasis
supplied).
In the first place, the
defendants do not have a house
on the land in dispute. The land
in dispute is undevelopped and
Alhaji Shaibu Alawiye Memorial
House is to the North of the
land as testified by the
surveyor and admitted by the
defendants. Therefore, with
great respect to the justices of
the Court of Appeal, they fell
in a grievous error in their
understanding of the undisputed
evidence. Secondly, the
reference to the earlier dating
of defendants’ title deed is
inconsequential on the facts of
this case since their document
does not cover the same land as
the plaintiffs’. But, the Court
of Appeal was right in saying,
that in order to make correct
findings of facts in the case,
there was a need for the oral
testimonies of the parties to be
corroborated by evidence from
official sources. Unfortunately,
unlike the trial judge, they did
not at all consider the evidence
of the government surveyor which
is from official source as they
requested for. If they had done
that, they would most likely
have arrived at the irresistible
conclusion, that the official
evidence corroborated the case
of the plaintiffs and was
inconsistent with the case of
the defendants.
In the written submissions of
the defendants in the Court of
Appeal they, for the first time,
sought to rely on the defences
of the
Limitations Act, 1972 (NRCD
54), acquiescence and
lashes. They made submissions on
these defences under the ground
of appeal that the judgment of
the High Court is against the
weight of the evidence. Then in
their statement of case filed in
this court they have repeated
those submissions. To begin
with, the law is well-settled,
and this has been acknowledged
by the defendants, that the
defences of acquiescence, lashes
and statute of limitation are to
be specifically pleaded. See
Dolphine (No.3) v Speedline
Stevedooring Co. Ltd [1996-97]
SCGLR 514. Then,
Order 11 Rule 8 of C.I.47
provides as follows;
“Matters to be specifically
pleaded
8. (1) A party shall in any
pleading subsequent to a
statement of claim plead
specifically any matter, for
example, performance, release,
any limitation provision, fraud
or any fact showing illegality
(a) which the party alleges
makes any claim or defence of
the opposite party not
maintainable; or
(b) which, if not specifically
pleaded, might take the opposite
party by surprise; or
(c) which raises issues of fact
not arising out of the preceding
pleading.
(2) Without prejudice to subrule
(1), a defendant to an action
for possession of immovable
property shall plead
specifically every ground of
defence on which the defendant
relies, and a plea that the
defendant is in possession of
the immovable property in person
or by a tenant shall not be
sufficient.” (emphasis supplied)
Though the defendants say in
their statement of case that
they “notified” the plaintiffs
of their reliance on these
defences, they do not indicate
the form that notification took
since they do not claim to have
pleaded them. As I have observed
above, the first mention of
these defences is in their
written submissions in the Court
of Appeal but the rule demands
that they must be pleaded. I
have read the amended defence of
the defendants over and over
again but I do not find an
averment on those defences. The
only averment on possession is
in paragraph 17 of the amended
defence, which is as follows;
“The defendants aver that 4th,
5th, 6th
and 7th defendants
are living (sic) as tenants of
the 1st defendant who
are the owners of the said land”
That averment does not state
that defendants are relying on
adverse possession over a stated
period for which reason the
plaintiffs’ claim is defeated on
grounds of estoppel by
acquiescence or lashes or the
statute of limitation. On the
contrary, the averment insists
that defendants are owners of
the land in dispute, which
ownership they set out to prove
but woefully failed. That
precisely is the point Or 11
R8(2) makes, that a legal
defence to an action for
possession of immoveable
property, such as we have in
this case, must be specifically
pleaded and it is not sufficient
for a defendant to only aver
that she is in possession either
by herself or through her
tenants as the defendants
pleaded in this case.
The purpose of the rule, as is
the case with most rules on
pleadings, is to uphold the
opposite party’s right to fair
and adequate hearing by knowing
in advance the case he is to
answer. For instance, the
defences based on adverse
possession are subject to
exceptions including disability,
acknowledgment, fraud, mistake
and the true owner of land being
aware that the person in
possession is asserting an
interest inconsistent with the
rights of he the true owner and
therefore in adverse possession.
See Sections 16, 17 and 22 of
NRCD 54 and the case of
Mmra v
Donkor [1992-93] Part 4 GBR 1652.
That is the more reason those
defences in particular ought to
be specifically pleaded to
afford the true owner of land
the opportunity to lead evidence
on any applicable exceptions for
the consideration of the court.
Therefore, not haven
specifically pleaded any legal
defence based on adverse
possession, the defendants
cannot be heard on those
grounds.
But even on the merits of a
defence of
adverse
possession in the
circumstances of this case, the
contention of plaintiffs is that
defendants predecessor used the
land to keep his horses with the
permission of their ancestor and
being owners of adjacent lands,
it can safely be assumed that
defendants predecessor, through
whom they claim, all the time
must have known that the
disputed land belonged to
plaintiffs predecessor. Is it
not intriguing that defendants
over the years have encroached
on adjoining lands outside their
site plan, including what
plaintiffs stated is a public
lane, but left the disputed land
fallow? In such circumstances, a
defence based on a claim of
adverse possession cannot be
made in good faith and would
hardly find favour with a court
of conscience. Again, it was not
proved that the plaintiffs were
aware that defendants were
asserting an interest in the
disputed land inconsistent with
their ownership until they wrote
to the traders to vacate the
land.
The defendants in their
statement of case submitted that
squatters can acquire title to
land after 12 years of
occupation. That is an erroneous
statement of the law. The legal
definition of a squatter in
Black’s Law Dictionary, 8th
Edition, 2004 is “A
person who settles on property
without any legal claim or
title.” The difference in
law between a squatter and a
trespasser is, that whereas a
trespasser enters onto a land
and claims an interest in it
that is inconsistent with the
rights of the true owner, a
squatter does not claim any
interest in the land he is in
occupation of. Therefore,
possession by a squatter is not
adverse to the title of the true
owner so a squatter cannot
succeed on a defence of
limitation. Section 10
(2)&(3) of NRCD 54 provide
that;
“ 2) A right of action to
recover land does not accrue
unless the land is in the
possession of a person in whose
favour the period of limitation
can run.
3) Where a right of action to
recover land has accrued, and
before the right of action is
barred, the land ceases to be in
adverse possession, the right of
action does not accrue until the
land is again taken into adverse
possession.”
Similarly, possession of land by
a licensee is not inconsistent
with the rights of the true
owner, so such possession is not
adverse and cannot ground a
defence of limitation. In the
case of
GIHOC v Hanna Asi [2005-2006]
SCGLR 458, this court
rejected a defence of limitation
put up by a licensee of a true
owner for the reason that his
possession was not adverse.
Additionally, the defendants
took issue with the overlap and
variations in the size of the
land plaintiffs claim as against
the size in their indenture
Exhibit “A” as shown by the
superimposition. The overlap was
described by the surveyor to be
of a “small dimension” and,
observing it on the composite
plan, it is insignificant and
does not detract from the
plaintiffs claim to the land as
it is currently comprised of and
known to the parties. As for the
differences in the measurements
of the land, defendants who have
admitted to building on all the
land surrounding the disputed
land cannot be heard to complain
about variations that are
attributable to their own
activities on land not covered
by their indenture. The
plaintiffs are entitled to and I
hereby declared them owners of
the whole land delineated on
their site plan at page 292 of
the record measuring 75.9 feet
to the north 29.3 feet to the
east 78.5 feet to the south and
29.2 feet to the west containing
0.05 Acre. I make an order that
the said plan be registered in
the names of the plaintiffs as
the judgment plan.
For the reasons explained above,
my
opinion of the effect of the
admitted evidence in this case
is that, on a balance of
probabilities, the plaintiffs
proved a better claim to the
land in dispute as against the
defendants. Consequently, the
Court of Appeal erred when they
set aside the findings of the
High Court and decided in favour
of the defendants. Plaintiffs
are entitled to judgment on the
reliefs they claimed, save and
except their relief (c), which I
earlier on dismissed, and relief
(e) which the High Court did not
grant. The appeal therefore
succeeds in part and is allowed
in part.
(SGD)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC: -
I
agree with the conclusion and
reasoning of my brother Pwamang
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
GBADEGBE,JSC:-
I
agree with the conclusion and
reasoning of my brother Pwamang
JSC.
N.
S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the reasoning and
conclusion of my brother Pwamang
JSC:-
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
WAS READ BY APPAU, JSC:-
This is an appeal from the
judgment of the Court of Appeal
dated 15th June 2017.
The only ground of appeal
contained in the notice of
appeal filed on 12/09/2017 was
the omnibus ground that the
judgment of the Court of Appeal
was against the weight of
evidence. No additional ground
of appeal was filed as indicated
in the notice of appeal. The
appellants herein were the
plaintiffs in the trial High
Court whilst the respondents
were the defendants. In this
judgment, the parties shall
maintain their descriptions in
the trial High Court; i.e.
plaintiffs and defendants
respectively.
The facts of the case leading to
this appeal
The plaintiffs issued out a writ
of summons against the
defendants on 06/07/2012
claiming six reliefs. These
were:
a.
A declaration of title to the
land in dispute situate at
Okaishie the property of Amidu
Butcher (deceased), which he
purchased in 1924 from one
Mammah Gaya;
b.
Recovery of possession of the
land in dispute;
c.
An order directed at 1st
defendant to demolish the
building erected on the public
lane;
d.
Perpetual injunction;
e.
Damages for trespass; and
f.
An order evicting the squatters
from trading on the land in
dispute and or stopping them
from paying rent to 1st
defendant and his family.
The plaintiffs did not describe
the said disputed land in the
endorsement on their writ of
summons. It was in their
statement of claim, specifically
paragraphs 7 and 8, that they
described the alleged disputed
land as sharing boundary with
the land of defendants’ father
by name Alagi Shaibu Alawiye on
the North measuring 40ft 6 ins;
on the South by a public lane
measuring 40 ft 6 ins; on the
East by the property of one
Menkano measuring 43 ft 10 ins
and on the West by the property
of one Ajorke measuring 43 ft.
10 ins. The pleaded case of the
plaintiffs was that the disputed
land was purchased by their
grandfather/great grandfather by
name Amidu Butcher from one
Mammah Gaya in 1924. According
to them, the land was witnessed
by an indenture executed between
Mammah Gaya and their
grandfather/great grandfather
Amidu Butcher on 6th
June 1924 and registered as
instrument number 298 of 1924 at
the Deeds Registry. Their
grandfather/great grandfather
used the land as a depot for his
cola business until his death in
1929. After the death of their
grandfather/great grandfather in
1929, the cola business
continued whilst other
businesses sprang on the land.
Plaintiffs, however, did not
indicate those who continued the
cola business and other
businesses on the land after
their grandfather’s death as
they alleged. They went on
further to state that whilst the
cola and other businesses were
taking place on the land,
defendants father Shaibu Alawiye
began to keep his horses on the
land. They, however, did not
tell when the keeping of horses
on the land by Shaibu Alawiye
began. They contended further
that, though they knew the land
belonged to their
grandfather/great grandfather,
they did not challenge those
people who were doing business
on the land after the death of
their said grandfather/great
grandfather in 1929, including
defendants’ father whom they
said was keeping horses on the
land. Their only assertion to
ownership of the land was on 3rd
October 2011 when they caused
their lawyer to write to the 4th,
5th, 6th
and 7th defendants,
whom they described as squatters
on the land, to vacate the land
for them to develop same.
Surprisingly, they never
addressed any of the letters to
the 1st, 2nd
and 3rd defendants
who were the descendants of
Shaibu Alawiye and were actually
in possession of the disputed
land. They went on to state
that, instead of the 4th
to 7th defendants
responding to their letter dated
3rd October 2011, the
1st defendant rather,
who said he was the head of the
family of Alhaji Shaibu Alawiye,
was the one who responded to the
letters claiming that the
disputed land had been the
property of the Alawiyes from
time immemorial so the 4th
to 7th defendants,
who were their tenants should
not vacate same. The response
from the 1st
defendant gingered them to
commence this action on 6th
June 2012. Plaintiffs added that
when they decided to develop the
land, they conducted a search at
the Archives Department and the
search revealed that the
defendants had built structures
on the land marked as ‘public
lane’ on the site plan attached
to their indenture (Exhibit
‘A’). Plaintiffs, however, did
not tender the alleged search
report in evidence. They
contended further that
defendants had, since 1980, been
collecting rent from some of the
squatters on the land including
the 4th, 5th,
6th and 7th
defendants. They therefore
prayed that the defendants be
ordered to demolish the
buildings constructed on the
public lane and also be made to
refund to them all the rents
they had collected from the
squatters from 1980 up to date.
The defendants, who were seven
in number, entered appearance
through their lawyer on
12/07/2012. Their case was that
the 1st to 3rd
defendants are grandsons and
nephew of Alhaji Shaibu Alawiye
while the 4th to 7th
defendants are tenants of the 1st
defendant who is the current
head of the Alawiye family. They
categorically denied plaintiffs’
claim in their statement of
defence. The contention of the 1st,
2nd and 3rd
defendants was that the land the
plaintiffs are claiming was part
of the land their grandfather
Alhaji Shaibu Alawiye acquired
in 1910. They admitted that
though plaintiffs’
grandfather/great grandfather
acquired land from one Mammah
Gaya, which said land shares
boundary with one of their
properties, the said land is not
at Okaishie but rather near
Selwyn market at Cowlane.
According to them, plaintiffs’
predecessor Amidu Butcher was
not in any cola business but was
a butcher that is why he was
called Amidu Butcher. They
denied that plaintiffs were
entitled to their claim.
At the application for
directions stage, the defendants
requested the trial court to
make an order for the parties to
submit their documents for
superimposition on a composite
plan to determine whether the
parties were talking of
different lands as the
defendants contended or the same
subject matter. The trial court
obliged the request and made the
order. The order was that the
parties should submit their site
plans as pleaded to the Director
of Survey and Mapping Division
of the Lands Commission to be
superimposed. The trial judge
made a further order that the
grantors of the parties should
also submit their relevant
documents to the Survey and
Mapping Division when the
alleged grantors were not
parties in the suit. No order
was made by the trial court for
the surveyor to identify the
boundary owners of the parties
as indicated on their site plans
so the surveyor who testified as
C.W. 1 did not go that length.
During the trial, plaintiffs did
not call any evidence to support
their claim of title to the
disputed land. They relied
solely on Exhibit ‘A’. None of
the two witnesses they called
(i.e. P.W.1 and 2), gave
evidence relating to ownership
to the land. Though the
defendants did not put in any
counterclaim and therefore had
no onus to discharge, they
called three witnesses to
support their case. The trial
High court granted the
plaintiffs all the reliefs they
prayed for with the exception of
relief (e) on damages for
trespass. Not satisfied with the
judgment of the trial High
Court, the defendants appealed
against same to the Court of
Appeal.
Appeal to the Court of Appeal
The defendants relied on four
grounds of appeal. These were:
i.
The judgment is against the
weight of evidence;
ii.
The learned trial judge erred
when he found that there was no
public lane but concluded that
defendants had built on a public
lane;
iii.
The learned trial judge erred
when he made a finding that the
land described as public lane is
not part of the land acquired by
Amidu Butcher plaintiffs’
predecessor in title and yet
went on to find for the
plaintiffs; and
iv.
Having found that the public
lane does not lie within the
disputed area, the learned trial
judge’s conclusion that it does
not mean that one does not exist
is mere conjecture.
The Court of Appeal, in a
judgment delivered on 15th
June 2017, reversed the trial
High Court and gave judgment in
favour of the defendants. It
dismissed plaintiffs’ claim in
its entirety. The Court of
Appeal determined the appeal on
the sole ground that the
judgment of the trial court was
against the weight of evidence
adduced at the trial. The first
appellate court was of the view
that the plaintiffs did not
discharge both the burden of
proof or persuasion and the
burden of producing evidence
imposed on them by sections 10
and 11 (1) and (4) of the
Evidence Act, 1975 [NRCD 373] so
it was wrong for the trial court
to have found in their favour
the reliefs sought in the
action. According to the Court
of Appeal, there was no evidence
on record to support the trial
court’s finding that the
defendants had built on a public
lane when the court itself had
found that there was no
indication that there was a
public lane as contended by the
defendants and the court
appointed surveyor (C.W. 1).
Again, it was wrong for the
trial court to have ordered the
defendants to demolish their
structures built on the alleged
public lane when the disputed
land which plaintiffs alleged
belonged to them did not include
the non-existent public lane.
The Court of Appeal, on the
basis of the above findings
among others, reversed the
decision of the trial High Court
and entered judgment for the
defendants who had been in
possession of the disputed land
for over a century.
Appeal to the Supreme Court
On the 12th of
September 2017, the plaintiffs
filed the instant appeal before
this Court, praying the Court to
set aside the judgment of the
Court of Appeal and to restore
the 15th June 2015
judgment of the High Court. The
plaintiffs prayed for this
relief on the sole ground that
the judgment of the Court of
Appeal was against the weight of
evidence on record. The settled
law as pronounced by this Court
in a host of authorities, which
are too notorious to be
recounted here, is that the
procedural principle that an
appeal is by way of rehearing,
particularly where the sole
ground of appeal is that the
judgment is against the weight
of evidence, applies to this
Court as a second and the last
appellate Court as it applies to
the first appellate court. Since
the only ground of Appeal
canvassed by the plaintiffs in
this appeal is that the judgment
of the Court of Appeal was
against the weight of evidence
on record, it is incumbent on
the Court to take a harder look
at the whole evidence on record
and come to its own conclusion
as to which of the two divergent
decisions of the two lower
courts is, or is not, supported
by the totality of the evidence
on record. We owe the parties an
unparalleled duty to
meticulously discharge this
function so as to ensure that
justice is not denied the party
who deserves it. However, as was
held by this Court in the case
of
DJIN v MUSAH BAAKO [2007-2008]
SCGLR 686, “where an
appellant complains that a
judgment is against the weight
of evidence, he is implying that
there were certain pieces of
evidence on the record which, if
applied in his favour, could
have changed the decision in his
favour, or certain pieces of
evidence have been wrongly
applied against him. The onus is
on such an appellant to clearly
and properly demonstrate to the
appellate court the lapses in
the judgment being appealed
against”. It is therefore
the duty of the plaintiffs to
satisfy this Court that the
judgment of the Court of Appeal
was against the weight of
evidence and therefore flawed.
In my candid view, plaintiffs
could not discharge this
function.
Plaintiffs’ submissions in brief
In their bid to discharge their
function of demonstrating the
flaws in the Court of Appeal’s
judgment, plaintiffs’ arguments
in brief were that the Court of
Appeal did not appreciate the
significance of the
‘overwhelming and unequivocal’
documentary as well as the oral
evidence, particularly of the
surveyor (C.W.1) which was in
favour of the plaintiffs.
According to plaintiffs, the
surveyor testified that the size
of the land shown on plaintiffs’
site plan was consistent with
the size of the land shown to
him by the plaintiffs on the
ground, whilst the land shown on
the defendants’ site plan was
smaller than what the defendants
showed him on the ground.
Plaintiffs submitted further
that the Court of Appeal ignored
the averment in the plaintiffs’
statement of claim at page 101
of the record that the
defendants sought permission
from the plaintiffs’ family and
kept their horses on the land in
dispute, which allegation was
not challenged by the
defendants. They again contended
that the Court of Appeal erred
when they held that the public
lane did not exist when the
surveyor had found otherwise.
According to plaintiffs, Shaibu
Alawiye’s land in the area had
been fully developed and
therefore had no more land in
the area so it was wrong for the
Court of Appeal to hold that the
defendants building was on the
disputed land. In a
supplementary statement of case
filed on 27/06/2019, plaintiffs
contended further that House No.
D839/3 was property acquired by
Amidu Butcher’s son Beleribe
Hamidu Butcher in or about 1935
long after his father’s death in
1929 and said this fact was
supported by Exhibits ‘F’ and
‘G’. It was therefore wrong for
the Court of Appeal to hold that
the plaintiffs land was at
Cowlane and was the one on which
Beleribe Hamidu Butcher built
house number D839/3.
Defendants’ submissions
The defendants discounted all
these arguments in their
statement of case filed on
19/02/2019 and I do not intend
to recall their arguments here,
which in my view, deflated all
the submissions made by the
plaintiffs. I will demonstrate
infra that these
submissions by the plaintiffs do
not find support from the
evidence on record and that the
Court of Appeal did not err in
any way in reversing the
decision of the trial High
Court.
Observations and analysis
I have to emphasize that
plaintiffs’ contention that
defendants did not challenge
their pleaded case that
defendants sought permission
from them to keep their horses
on the disputed land, is not
borne out by the evidence on
record. In fact, plaintiffs
never pleaded that defendants
grandfather Alhaji Shaibu
Alawiye sought permission from
their family to keep his horses
on the disputed land. Their only
pleading on the keeping of
horses is under paragraphs 10
and 11 of their amended
statement of claim at pages 138
and 139 of the RoA. These
paragraphs read:
“10. Plaintiffs say that their
grandfather/great grandfather
used the land as a depot for his
cola nut business as well as
host those who brought cola to
him for sale. This cola trade
continued on the land well after
the death of Amidu Butcher.
11. Sometime later while the
cola business continued, 1st
defendant’s father Alhaji Nuhu
Shaibu Alawiye began to keep his
horses on the land and other
business activities sprang up
side by side the cola business”.
Plaintiffs never said in their
pleading that the keeping of
horses by defendants’
grandfather whom they described
as defendants father, was with
the permission of their
grandfather or any other person.
Again, they never indicated when
this keeping of horses on the
land began. Defendants’ case all
along was that the disputed land
belonged to them and that it was
part of the land acquired by
their grandfather in 1910. This
grandfather of defendants
(Alhaji Shaibu Alawiye),
according to defendants, died in
1915; i.e. nine (9) years before
plaintiffs’ grandfather/great
grandfather purchased his land
from Mammah Gaya in 1924.
Plaintiffs did not dispute this
fact - {See
page 167 of the RoA during
cross-examination of 2nd
defendant by plaintiffs’ lawyer}.
I wish to recall this
cross-examination at page 167 of
the RoA:
“Q. Are you saying that Shaibu
Alawiye house was built by
Shaibu Alawiye (deceased)?
A. Yes;
Q. Do you refer to the entire
house with the inscription
Shaibu Alawiye Memorial House as
the house Shaibu Alawiye built?
A. Shaibu Alawiye died in
1915. He originally built
his own house there which was a
wooden structure and after his
death his children leased that
property to a Lebanese who
constructed the property which
is now situate on the Shaibu
Alawiye land. That Lebanese is
Abdalla Asafiri”}.
So if Shaibu Alawiye himself was
keeping horses on the land as
plaintiffs pleaded, then that
action predated the alleged
purchase of the disputed land by
Amidu Butcher in 1924. The 2nd
plaintiff who testified for
plaintiffs said he was born in
1967; over fifty (50) years
after Alhaji Shaibu Alawiye’s
death – {See page 103 of
the RoA}. It was when he
was testifying for and on behalf
of the plaintiffs that he
changed what they pleaded under
paragraph 11 of their amended
statement of claim and said
defendants’ predecessors sought
permission from his predecessors
to keep horses on the land which
evidence contradicted their
pleading. Plaintiffs did not
tell when this permission was
sought, who sought it and from
whom it was sought. So whilst in
their pleading plaintiffs said
it was Alhaji Shaibu Alawiye
himself who was keeping horses
on the land, their evidence was
that defendants’ predecessors
sought permission from their
predecessors to keep their
horses on the land. This was a
case of putting up a case
contrary to their pleading –
{See
DAM v ADDO (1962) 1 GLR 200}.
Interestingly, Alhaji Shaibu
Alawiye died in 1915, long
before plaintiffs’
grandfather/great grandfather
Amidu Butcher allegedly acquired
the disputed land in 1924. He
could not therefore have sought
permission from either
plaintiffs’ grandfather or
anybody else to keep his horses
on the land since plaintiffs’
grandfather/great grandfather
acquired his alleged land long
after his death. The two
statements in plaintiffs’
pleading and in the evidence of
2nd plaintiff were
therefore not the same. They
were a contradiction so the
defendants had no business
denying what was a
contradiction.
Again, before the trial
commenced, the trial High court
made an order for the parties to
submit their site plans as
pleaded, to a surveyor (C.W. 1)
to superimpose them on a
composite plan. Surprisingly,
the plaintiffs swerved the trial
court by presenting a site plan
that did not form part of their
case. Though the plaintiffs made
a list of the documents they
intended to present to the
surveyor, which included the
indenture of their predecessor
dated 6th June 1924,
they did not add the site plan
attached to the said indenture,
which was prepared by one Kwaw
Sawyer and dated 9th
June 1924 - {See page 276
of the RoA).
Instead, plaintiffs submitted a
site plan made on 25th
November, 2010 by a surveyor
called E. K. Ziwu, which was
quite different from the site
plan attached to their Exhibit
‘A’ and presented that as the
site plan of the land Amidu
Butcher purchased from Mammah
Gaya in 1924 – {See page
45 of the RoA}. The site
plan that accompanied the
indenture executed between Mamma
Gaya and Amidu Butcher in 1924,
which appears at page 276 of the
RoA and which plaintiffs should
have submitted to the court
appointed surveyor, measured 40
ft. 6 ins by 43 ft 10 ins by 40
ft. 6 ins by 43ft 10 ins, whilst
the one prepared by E. K. Ziwu
on 25/11/2010, which was not
part of plaintiffs case,
measured 29 ft 2 ins by 75 ft 9
ins by 29 ft 3 ins by 78 ft 5
ins. That site plan did not
indicate any boundary owners. It
was this site plan, which did
not form part of plaintiffs’
case which the surveyor, C.W. 1
said tallied with the land
plaintiffs showed him when he
visited the land to draw his
composite plan. This anomaly
made mockery of the report and
testimony of the surveyor
(C.W.1). The defendants on the
other hand, submitted two
documents. The first was the
indenture made between Salifu
Jimba as vendor and defendants’
grandfather Shaibu Alawiye as
purchaser dated 29th
July 1910 measuring 175 ft 4 ins
by 122 ft. 4 ins by 10 ft 6 ins
by 113 ft 0 ins, which they
tendered in evidence as Exhibit
1. The second was the indenture
made in 1939 between the
children of the late Alhaji
Shaibu Alawiye by name Abdul
Aziz Alawiye, Memunatu Alawiye,
Muniratu Alawiye, Rianatu
Alawiye, Osenatu Alawiye,
Asanatu Alawiye, Isiaka Alawiye,
Nafisatu Alawiye and Awawu
Alawiye on the one part as
Lessors and a Lebanese by name
Abdulla Asafiri on the other
part as Lessee, measuring 110 ft
by 67 ft by 110 ft by 67 ft,
which was tendered in evidence
as Exhibit ‘L’. It was this
second indenture that led to the
construction of the Shaibu
Alawiye Memorial House which
defendants described as situate
at Knutsford Street, Okaishie.
According to defendants, this
property at Okaishie, Knutsford
Avenue, is different from their
property at Selwyn Market
Street, Cowlane, numbered
D818A/3, which they claimed
shares boundary with the land
Amidu Butcher purchased from
Mammah Gaya in 1924 – {See
page 166 of the RoA}.
It is interesting to note that
after defendants’ counsel had
cross-examined the 2nd
plaintiff on his evidence
in-chief in which defendants
suggested that the land that
Amidu Butcher purchased from
Mammah Gaya which is the basis
of their suit, is the very land
on which plaintiffs’ house
numbered D839/3 at Selwyn Market
Street stood, plaintiffs sought
leave of the trial court to
amend their statement of claim
to plead that, that house in
question belonged to Amidu
Butcher’s son by name Beleribe
Hamidu Butcher and that it stood
on a different land acquired by
Beleribe Hamidu Butcher himself.
Plaintiffs, however, did not
deny that this house in question
at Cowlane numbered D839/3
shares boundary with Alhaji
Shaibu Alawiye’s house numbered
D818A/3, which is completely
different from the Alhaju Shaibu
Alawiye Memorial house at
Knutsford Avenue. I wish to
recall that cross-examination
which appears at pages 104 to
107:
“Q. 1st plaintiff
lives in a house very close to
Selwyn Market Street.
A.
Yes.
Q. The House No. is D839/3
A. Yes.
Q.
This house is very close to a
house with the inscription
Peregrino house.
A.
That is so.
Q. The house where 1st
plaintiff lives shares boundary
with a place called Adjoke.
A. I do not know.
Q. Adjoke house is the same as
Peregrino house.
A. I do not know about that
{Emphasis mine}
Q. I suggest to you the
documents you tendered in which
your grandfather bought the land
from Mammah Gaya is preferable
to house no. D839/3, Selwyn
Market Street.
A. That is not true.
Q. I suggest to you that house
number D839/3 shares boundary
with Dr. Tagoe and Alawiye
property.
A. I do not know about that.
{Emphasis mine}
Q. That property also shares
boundary with Menkano.
A. That is not true.
Q. That place is very close to
S.D. Karam.
A. That is true.
Q. You grew up in Accra.
A. Yes
Q. The street, Selwyn Market
Street, from Kwame Nkrumah
Avenue ends at boundary road.
A. That is true.
Q. Derby Avenue from Kwame
Nkrumah Avenue also ends and
joins boundary road.
A. Yes.
Q. In between Selwyn Market
which was a name given by the
Colonial Government and Derby
Avenue, we have present day
Rawlings Park.
A. Yes.
Q. Knutsford Avenue, tracing it
from Kwame Nkrumah Avenue also
ends and joins Boundary road.
A. Yes.
Q. Exhibit ‘E’ with the
inscription Alhaji Shaibu
Alawiye Memorial House which you
tendered yesterday is at
Knutsford Avenue.
A. Yes.
{Emphasis mine}
Q. I put it to you that the
property you are claiming does
not come near anywhere near the
property of the defendants.
A. That is not correct.
Q. I put it to you that house
number D839/3, Selwyn Market
Street is different entirely
from the property in Knutsford
Avenue.
A. That is correct.
{Emphasis mine}
Q. You agree with me that
Knutsford Avenue and Selwyn
Market are in two different
places.
A. They are two different places
but they are near each other.
Q. How near.
A. About 50 metres.
{Emphasis mine}
Q. The house with the
inscription, Alhaji Shaibu
Alawiye Memorial House which
ends together with all the
properties that end and join the
Boundary Road are properties of
the Alawiyes.
A. That is not true.
Q. Plaintiffs do not have any
property interest in that land.
A. That is not true.
Q. Defendants do not owe you any
account.
A. That is not true.
Q. Whatever money they
collected, they collected same
as owners of the land.
A. That is not true.
Q. Menkano building is facing
Pagan Road.
A. That is not true.
Q. You picked those bearings of
what you are alleging belongs to
you and gave them to the
surveyor.
A. That is not true {Emphasis
mine}
Q. On the ground, the land
you are claiming is on Selwyn
Market.
A. That is not true”.
{Emphasis mine}
In fact, the defendants’ case
all along has been that, the
plot Amidu Butcher purchased
from Mammah Gaya in 1924 and
attached to Exhibit ‘A’ is at
Selwyn Market Street and that it
is the very plot Amidu Butcher’s
son Beleribe Hamidu Butcher has
built his house numbered D839/3
on. This testimony was supported
by D.W. 1 who said their house
forms boundary with the property
of the defendants at Knutsford
Street. Exhibit ‘A’ states
clearly that the land Amidu
Butcher purchased from Mamma
Gaya is at Selwyn Market as
contended by the Defendants but
not at Knutsford Avenue where
the disputed land is situated.
The boundary owners given on the
site plan in Exhibit ‘A’ are;
Shaibu Alawiye, Ajoke, Menkano
and a public lane. During
cross-examination of the 2nd
plaintiff, the defendants
suggested to him that Adjoke’s
property is the one on which
stood Peregrino House and the
answer 2nd plaintiff
gave was that he did not know
about that. This answer was not
a denial of defendants’
suggestion. Defendants again
suggested to 2nd
plaintiff that the plot again
shares boundary with Alawiye
property as stated on the site
plan and to this question also,
2nd plaintiff
answered that he did not know
about that. That answer too was
not a denial of that suggestion.
Defendants again suggested that
the said Amidu Butcher’s
property as stated on the site
plan which now houses Beleribe
Hamidu Butcher’s house numbered
D839/3 also shares boundary with
Menkano’s property as indicated
clearly on the site plan made in
1924 but 2nd
plaintiff answered in the
negative. Notwithstanding all
these suggestions, plaintiffs
did not find it necessary to
call any of the two boundary
owners; i.e. Adjoke and Menkano
or their descendants to support
their case and to refute the
suggestions made by the
defendants during
cross-examination. What the
plaintiffs did was to submit a
receipt of payment of property
rate in 1935; a receipt of
payment of water bill in 1947
and 1948 by Beleribe Hamidu
Butcher to suggest that that
building D839/3 was on a
different land acquired by
Beleribe Hamidu Butcher when
mere payment of water bill and
property rate does not confer
ownership or title in the
property to the person who made
the payments. If plaintiffs’
case was that Beleribe Hamidu
Butcher did not build on his
father’s plot acquired in 1924
after his father’s death in
1929, as alleged by the
defendants, then they should
have produced an indenture or a
document showing when Beleribe
acquired the said property in
question but they failed to do
so. Plaintiffs did not tender
any document to establish that
the land, on which Beleribe
Hamidu Butcher’s house stood,
was acquired by him, contrary to
defendants’ assertion that it
was the very land his father
purchased from Mammah Gaya in
1924. The trial court’s
conclusion therefore that the
plaintiffs did establish that it
was Beleribe Hamidu Butcher who
acquired the land on which stood
House no. D839/3 was not
supported by the evidence on
record as plaintiffs offered no
such proof. The onus was on the
plaintiffs who asserted that
claim to produce cogent evidence
in proof of that claim on the
preponderance of the
probabilities, in the wake of
the strong denial by the
defendants, but they failed to
do so.
Again, in their pleaded case,
plaintiffs never asserted that
defendants had built on a
portion of their alleged land.
They said defendants had built
on the public lane, which means
that their land as exhibited in
Exhibit ‘A’ remained intact. If
that is the case, then why has
the size of the land shown in
Exhibit ‘A’ changed from 40 ft,
6 ins x 43 ft, 10 ins x 40 ft, 6
ins x 43 ft, 10 ins to 29 ft, 2
ins x 75 ft, 9 ins x 29 ft, 3
ins x 78 ft, 5 ins? Again,
whilst the trial judge said
defendants had built on a public
lane, the surveyor said there
was no public lane in the area
when he visited the land. This
shows clearly that the area
shown in the site plan attached
to Exhibit ‘A’ is completely
different from the land at
Knutsford Avenue, which the
surveyor visited. This explains
why the plaintiffs prepared a
new site plan in 2010, different
from the one attached to Exhibit
‘A’ and gave that to the
surveyor as the plan of the land
acquired by Amidu Butcher in
1924.
The defendants’ case as clearly
indicated in the record (RoA)
was that it was not all the land
their predecessor Alhaji Shaibu
Alawiye purchased at Knutsford
Avenue that they leased to the
Lebanese to build the Shaibu
Alawiye Memorial house. Exhibit
‘1’ is the indenture covering
the original land Shaibu Alawiye
purchased in 1910 and Exhibit
‘L’ is the indenture covering
the land the children of Shaibu
Alawiye leased to the Lebanese
Abdulla Asafiri to construct the
Shaibu Alawiye Memorial House.
The court appointed surveyor’s
composite plan shows the smaller
land on which the Lebanese
constructed the Memorial House
and the larger land purchased by
Shaibu Alawiye in 1910, which
the defendants showed the
surveyor when they visited the
land. The one on which the
Lebanese built the Shaibu
Alawiye Memorial House measures
110 ft x 67 ft, whilst the
larger one measures 175 ft by
122 ft. There is no public lane
in that area as the surveyor
(C.W.1) rightly indicated in his
evidence. What is shown in the
composite plan as Amidu
Butcher’s land purchased from
Mamma Gaya is rather the new
site plan plaintiffs
surreptitiously made in 2010 and
submitted to the surveyor when
they knew clearly that they had
no land in that area. The
defendants have properties
spread on that land that is why
plaintiffs prayed the trial
court to order for the
demolition of the properties the
Alawiyes have on the land. If
indeed, plaintiffs knew the land
belonged to their grandfather
Amidu Butcher, then why didn’t
they stop the Alawiyes from
building on the land several
years ago? Again, why didn’t
they stop the Alawiyes from
collecting rent from the people
they called squatters on the
land in between the properties
of the Alawiyes when this came
to their knowledge as far back
as 1980 as they themselves have
alleged in their pleadings and
evidence? – {See page 102;
last but one paragraph of the
RoA}. Why wait till 2011
before writing to the alleged
squatters instead of the 1st
defendant who had all along, to
their knowledge, been collecting
rent from those doing business
on the land?
In fact, the surveyor (C.W. 1)
should have indicated the lands
or properties of Ajoke on the
West and Menkano on the East as
clearly indicated in Exhibit ‘A’
in his composite plan but he
could not do so because
plaintiffs did not submit that
site plan to him. Again, the
plaintiffs’ contention in their
statement of case that the 4th
to 7th defendants did
not contest the matter is
misplaced.
The
lawyer who entered appearance to
the action or suit did so for
and on behalf of all the
defendants but not only on
behalf of the 1st to
3rd defendants. The 2nd
defendant also testified for all
the seven defendants – {See
page 163 of the RoA}.
His contention was that the 4th
to 7th defendants
were their tenants so the
defence put up covered all of
them. The 4th to 7th
defendants could not have
offered any defence different
from that of the owners of the
land. The Court of Appeal
therefore concluded rightly when
it held that plaintiffs did not
satisfy the burden of proof
imposed on them by the law since
on the balance of probabilities,
the defendants’ case was more
probable than that of the
plaintiffs. I will therefore
dismiss the appeal and uphold
the decision of the Court of
Appeal in reversing the trial
court’s judgment. Appeal
accordingly dismissed.
(SGD)
Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AGNES OPAREBEA MANTE FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
C. K. KOKA FOR THE DEFENDANTS/
APPELLANTS/RESPONDENTS.
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