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JUDGMENT
AMPIAH, J.S.C.:
This is an appeal from the
decision of the Court of Appeal.
In March, 1981 or thereabout,
the plaintiff instituted action
against the defendant-company
claiming
(a) Special damages of
¢50,000.00 for the extensive
digging of gravel on the
plaintiff's land . . .
(b) General Damages for trespass
committed by the Defendant on
the plaintiff's land
(c) Perpetual injunction
restraining the Defendant, his
agents, labourers, workmen and
assigns from entering upon the
said piece or parcel of land and
interfering in any way
whatsoever with the Plaintiff's
ownership, possession and
occupation of the said land".
The disputed land was described
as,
"ALL that piece or parcel of
land situate lying at Anyah in
the Ga District of the Greater
Accra Region of the Republic of
Ghana and bounded on the
North-West by Ablekuma village
on the South-East by Kwashieman
village on the North-East by
Sowutuom village and on the
South-East by Gbawe village".
This description was contained
in the Schedule to the
plaintiff's claim.
The Defendant's response to the
claim was that, ". . . the
portion of land they have been
digging gravel from does not
form any part of the area
delineated by the plan attached
to the Statement of Claim and
further state that the land they
presently occupy was granted to
them by Gbawe Kwatei Family of
Gbawe on 4th February, 1980
"(see par. 3 of Statement of
Defence).
As a result of this the pleading
co-defendant was joined in the
action. He claimed that,
". . . the Gbawe Kwatei Family
are the owners in possession of
a large tract of land made up of
all that piece or parcel of land
known as Gbawe Kwatei Family
situate lying and being at the
North-Western part of Accra and
bounded on the North-East by
Asere Stool Land, on the
south-East by Akukajay and Sempe
Stool lands and the Sakumo
Plains, on the South-West by the
Tetegbu Stream, Densu River and
James Town land and on the
North-West by Djanmang Hill,
aboabo Hill, Kubenan Hill and
Atuase Hill. . .".
On 9th January, 1989, the court
ordered that the land in dispute
be surveyed by a Licensed
surveyor, one Mr. Harry Reynolds
and a common plan drawn with the
respective site plans of the
parties superimposed on it. The
parties were ordered to file
their instructions to the
surveyor. A plan pursuant to the
order was made and tendered in
evidence by the Surveyor as
Exhibit CE1.
The original plaintiff died on
31st May, 1981 and was
substituted by the present
plaintiff on 19th February,
1982. On 18/1/90, one Nii
Chabukwei II, Chief of Anyaa
applied to be joined in the
action as Co-plaintiff since he
claimed, the land in dispute was
attached to the Anyaa Stool. On
3rd March, 1990 the court
granted the application and Nii
Chabukwei II was joined as a
co-plaintiff. The plaintiff
appealed to the Court of Appeal
on this grant of joinder and the
Court of Appeal in allowing the
appeal set aside the order of
'joinder'. The action therefore
continued in the High Court
between the plaintiff on one
side, and the defendant an the
co-defendant on the other.
The trial judge found against
the plaintiff and dismissed his
claim. He gave judgment for the
co-defendant on his
counterclaim. The plaintiff not
satisfied appealed to the Court
of Appeal which also dismissed
his appeal. The appeal now
before this court is by the
plaintiff against the judgment
of the Court of Appeal.
Apart from the original grounds
of appeal filed by the
appellant, he subsequently filed
two notices of additional
grounds which he intended, with
leave of court, to argue. Leave
was accordingly granted.
However, looking at the original
and additional grounds filed,
the additional grounds filed on
28.5.2001 covered all the other
grounds; it was upon these that
the appellant argued his case.
The gravemen of the appellant's
submission was that both
judgments of the trial court and
the Court of Appeal were against
the weight of evidence and that
some findings by both courts
were not supported by the
evidence.
From the pleadings, the
evidence, and Exhibit CEI, (the
plan ordered by the court), it
is obvious that the main issue
or matter of controversy between
the parties is the location of
the common boundary between
them; both having agreed that
they shared a common boundary.
The courts below were under no
illusion as to the burden of
proof cast on the parties. Since
both were claiming title to
land, they had the equal task of
identifying the land they each
claimed, with clarity; this they
discharge by showing clearly all
the boundaries of the land and
what overt acts of ownership
they have exercised on the land
over the years. In support of
their view, the courts referred
to the cases of Bissali v.
Gyampoh III (1964) GLR 381 and
Bedu v. Agbi (1972) 2 GLR 239
(CA), among others.
In making his case, the
plaintiff gave evidence himself
and called three other witnesses
namely PW1 Eric Coleman an
archivist; PW2 Samuel Mensah
Addo from the Lands Commission
and PW3 Agyenim Boateng also
from the Lands Commission. These
witnesses had been called to
tender certain documents
including a plan (Exhibit A),
ostensibly to help identify the
plaintiff's land. The next
witness for the plaintiff was
one Thelma Manye Ewusie (PW4)
from the National Achieves; she
represented the Chief Archivist.
She tendered in evidence "the
proceedings and judgment in the
matter of the Public Lands
Ordinance and in the matter of
Land Acquired situate at
MacCarthy Hill, Accra, Weija
Road, and required for a Leper
settlement, Nii Amassah, Nii Koi
Olai v. Nii Kofi Akirashie James
Town Mantse, Accra and ors. 1950
- 1951 Ref. No. WACA 16/1952";
this was accepted in evidence
and marked as Exhibit H.
The co-defendant gave evidence
on behalf of the defence. He
called in support of his case
one Godson Seth Owusu-Ansah,
(DW1), a Circuit Court Registrar
attached to the High Court
Registry who tendered on behalf
of the Chief Registrar, an
affidavit dated 1/8/22 (Exh. 7)
and a judgment in the case of
John R. Quartey v. Nii Boye
Quartey & Anor. Dated 23/9/49
(Exh. 8). He tendered in
addition, Exhibits 9, 10 and 11.
One Comfort Afful who next gave
evidence for the defence was
wrongly referred to as DW1. She
was a farmer and had worked on
the land which was given her by
the co-defendant's family, for
about 38 years. DW2, Ataa Kwame
Gamadii a farmer living at
Gbawe, had worked on the land
given him by the Gbawe Mantse
since 1963 without any
challenge; he mentioned other
farmers working in the area on
the land in dispute, which land
had also been given them by the
Gbawe Mantse. DW3, Okai Lartey,
a Licensed surveyor, tendered in
evidence Exhibit 1, a plan he
had prepared himself.
The trial judge evaluated the
evidence and observed,
". . . It is quite clear from
the above that the plaintiff has
put up confused and inconsistent
claim".
Before arriving at this
conclusion, the trial judge had
made certain findings of fact by
comparing the evidence given and
the pleadings. He found that the
appellant had given conflicting
description of the land he
claimed; he said the land the
plaintiff claimed by his
pleadings "is entirely different
from the land claimed in his
evidence on oath". This has
evoked the appellant's attack
that "the trial judge dismissed
the case of the plaintiff on the
sole ground that it was contrary
to the rule in Dam v. Addo
(!962) 2 GLR 200 SC. In this
appeal the appellant has raised
the same issue. According to
him, "the appeal judgment on
this and on the further ground
that the plaintiff/appellant had
failed to prove the western
boundaries of the land he
claimed" are not supported on
the evidence.
The Court of Appeal, [Lamptey,
J.A. (as he then was) reading
the judgment], had, by way of
re-hearing dealt with all the
evidence adduced at the trial
court, including the documents
and previous judgments. Its
analysis and evaluation were
exhaustive. The court also made
some findings in support of the
conclusion came to by the trial
judge.
As stated earlier in this
judgment, the trial court and
the Court of Appeal were quite
aware of the burden of proof
required of the parties since
they both claimed title to a
specific piece of land. They
were both satisfied that the
plaintiff had failed to identify
the land he claimed and that he
failed to adduce evidence of
acts of ownership over the area
he had claimed. On the other
hand, the co-defendant had, on
the preponderance of the
probabilities satisfied the
court of the identity of the
area he claimed and also offered
positive evidence of overt acts
of ownership exercised over the
land.
By consent of the parties, one
Harry Reynolds, CW1 was ordered
by the trial court to prepare a
composite plan of the land in
dispute. To assist him with data
for this exercise, the trial
judge ordered the parties to
file survey instructions. Harry
Reynolds, the surveyor, during
the trial tendered in evidence
Exhibit 'CE1' as the composite
plan. On this issue Lamptey, JA
(as he then was) remarked,
"Therefore in the language of
the Laryea Vs. Oforiwah case the
court had before it 'the
necessary dimensions of the area
of land being claimed by each of
the parties. In this case, the
plan also showed very clearly
and distinctly the area of the
alleged trespass committed by
the defendant company in "red
colour". Thus the evidence
contained on Exhibit 'CE1' set
the stage and defined the limits
of the contest between plaintiff
and co-defendant. . ."
Justice Lamptey then went on to
review the evidence of identity
and referred copiously from the
evidence of the plaintiff, in
particular, the plaintiff's
evidence given on 28.6.89 (page
62 of the record of proceedings)
The plaintiff said,
"The purpose of Exhibit F2 was
to substitute the plan of the
land. Our family found the need
to change the plan because an
error was detected on the part
of the surveyor on the plan he
made attached to Exhibit F1. The
surveyor to Exhibit F2 drew a
smaller plan of land and shifted
part of our land to Gbawe. The
surveyor did not use the plan of
Exhibit 'C' as the basis of the
plan attached to Exhibit F1".
The plaintiff did not explain
how the surveyor's mistake or
error was detected by his
family. It was also surprising
that the plaintiff who had
earlier described the area
covered by the defendant as 'no
man's land' suddenly came to
assert title to that area when
the co-defendant had already
claimed that the supposed 'no
man's land' was part of his land
a portion or which he had
lawfully granted to the
defendant company. When Nii
Chabukwei II applied to join in
the action as co-plaintiff, the
plaintiff vehemently opposed the
application to such an extent
that even though the High Court
granted the application, the
plaintiff had the order vacated
on appeal. Yet it has not been
disputed that Nii Chabukwei II
the incumbent chief of Anyaa, is
the owner by succession to all
the Anyaa lands of which the
plaintiff claims a portion. Nii
Chabukwei II was not even called
to give evidence of the
boundaries of the Anyaa lands.
The plaintiff, as the trial
judge observed, was a confused
man with regard to the
identification of the land he
claimed. "In the result", says
Justice Lamptey, it is plain and
clear that the plaintiff failed
to identify and demarcate his
western boundary with the land
of the co-defendant's family.
Lamptey, JA (as he then was)
went further to deal with the
various documents (including
plans and previous judgments)
and came to the conclusion that
they did not affect the issues
before the court. I find his
evaluation of these documents
faultless.
The co-defendant on the other
hand described his land with the
clarity it required and produced
evidence of acts of ownership by
persons who were on the land.
The trial judge considered and
determined the counter-claim
according to law. In my view, as
was that of the Court of Appeal,
the trial judge cannot be
faulted in the way he considered
the case of the co-defendant.
Thus, before us are two
concurrent findings of fact by
two courts of competent
jurisdiction: A trial court
which saw and heard evidence
from witnesses before it and an
appellate court which by way of
re-hearing reviewed and
evaluated the evidence at the
trial and came to a conclusion
of its own. In Koglex Ltd.
(No.2) v. Field (2000) SCGLR
175, the Supreme Court however
observed,
"The very fact that the first
appellate court had confirmed
the judgment of the trial court
does not relieve. The second
appellate court of its duty to
satisfy itself that the first
appellate court's judgment is,
like the trial court's, also
justified by the evidence on
record, for an appeal, at
whatever stage, is by way of
rehearing".
But it held inter alia,
"where the first appellate court
had confirmed the findings of
the trial court, the second
appellate court would not
interfere with the concurrent
findings unless it was
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, was apparent in the
way in which the lower court had
dealt with the facts. Achoro v.
Akoufela (1996-97) SCGLR 209
cited".
I have read both judgments of
the trial court and the Court of
Appeal and I am satisfied that
the findings and conclusions
came to, were supported by the
evidence on record and that no
miscarriage of justice has
resulted from the decisions. I
would accordingly dismiss the
appeal.
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO (MRS)
I agree.
BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I agree.
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
I agree
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Willie Bossman for Plaintiff
Appellant.
Mr. Aduama Osei for the
Defendants
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