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JUDGMENT
LAMPTEY, JSC:
The brief facts of the case on
appeal are that the plaintiff
obtained a customary grant of
the land in dispute from the
Manche Ankrah family sometime in
1962. He went into possession
almost immediately. Sometime in
1980 the defendant entered that
land and started putting up a
wooden structure. The plaintiff
promptly pulled down and
destroyed the wooden structure.
A complaint of this fracas was
made to the Ghana Police. The
Ghana Police did not pursue the
complaint and did not
investigate it. In the opinion
of the Ghana Police, the real
issue in dispute is the
ownership of the plot of land
therefore advised the rival
parties to seek redress in a
civil court. None of the
parties acted on the advice of
the Ghana Police.
Sometime in 1981, the defendant
commenced building operations on
the plot of land. The plaintiff
again made a complaint of
trespass against the defendant.
In the meantime the plaintiff
sued the defendant in the High
Court Accra and claimed the
reliefs stated in the writ. The
defendant resisted the claim on
the ground that the plot of land
was originally allocated to his
mother on the occasion 30
members of Manche Ankrah family
were allocated plots of land,
including the plot in dispute,
by the Manche Ankrah family. He
pleaded that his mother had
remained in possession of the
plot since the said allocation.
In due course, one Nii Ayi
Ankrah applied to be joined as
co-defendant. He gave two main
reasons to support his
application. The first was that
the plot of land in dispute was
part of Manche Ankrah family
land. The other reason was that
the plot of land was customarily
granted to defendant's mother by
Manche Ankrah family.
In a summons for directions
filed by the lawyer for
plaintiff the real issue in
dispute was whether the plot of
land was granted to the
plaintiff or was allocated to
the mother of the defendant. I
must draw attention to the fact
that the plaintiff sought a
declaration of title and
recovery of possession of the
land in dispute the defendant
and co-defendant did not
counterclaim for a declaration
of title to the plot of land in
dispute.
The plaintiff gave evidence and
called four witnesses including
two members of Manche Ankrah
family. The defendant gave
evidence but did not call any
witness. The co-defendant did
not give evidence. The trial
judge gave judgment for
plaintiff and granted the
reliefs he sought. The defendant
was aggrieved by the judgment
and appealed to the Court of
Appeal. The appeal of the
defendant was dismissed in a
unanimous judgment of the Court
of Appeal. The defendant was
dissatisfied and aggrieved by
the judgment of the Court of
Appeal and appealed to this
Court.
Counsel for defendant argued
ground (ii) first. He submitted
that the Court of Appeal was
wrong in giving judgment for the
plaintiff when "he did not
establish that his alleged grant
of one of the 30 plots in 1962
by the same family preceded the
grant of 30 plots to the
displaced 30 members for their
resettlement at New Awudome." He
contended that on the evidence
on record the plot in dispute,
that is plot No.10, was
allocated to one Adotey Quarshi.
He argued, however, that "there
was no basis for what PW3
implied that simply because
Adotey Quarshi was No.10 on the
list of persons plot No.10
necessarily was allocated to
him, and that plot No.5 also
went to Lamley Lamptey because
she is No.5 on the list". He
conceded that Lamley Lamptey's
name appeared at No.5 but
argued that the entry "No.5 was
a slight error". Dealing with
the case of the plaintiff he
contended that on the evidence
on record he was not one of the
30 persons to whom the 30 plots
of land was allocated. He argued
that Exhibit E the Conveyance
executed in 1979 on which
plaintiff relied as evidence of
his title to the land, did not
in law pass any title to him
because his grantors did not
have legal capacity to convey
the plot to him. He stated that
plaintiff failed to establish
and prove that the Manche Ankrah
family made a customary grant of
the plot of land to him.
In reply counsel for the
plaintiff submitted that the
defendant failed to establish
and prove by evidence the
identity of the land he claimed,
the date and time of his grant
and the nature of his grant. He
argued that the documentary
evidence, in particular,
Exhibits C l and E related to
plot No.5 and not to plot No.10
which was allocated to one
Adotey Quarshi. He contended
that the documents put in
evidence by the defendant
through the surveyor appointed
by the court did not identify
the plot of land claimed by the
defendant.
The complaint against the
judgment of the Court of Appeal
as formulated under ground (ii)
on the notice of appeal must be
carefully and critically
examined. The gravamen of the
complaint was expressed as
follows:
"........the Court of Appeal was
wrong in giving judgment in
favour of the plaintiff when he
did not establish that his
alleged grant of one of the 30
plots in 1962 by the same family
preceded the grant of the 30
plots to the displaced 30
members for their settlement at
New Awudome"
I have critically read and
examined the judgment of the
Court of Appeal. For the
avoidance of doubt and purpose
of clarity I reproduce the
passage from the judgment of
Afreh JA:-
...I have no doubt that the
respondent (plaintiff)
discharged the onus on him. His
evidence that he obtained the
land in 1962 from the then
undisputed Head of Manche Ankrah
Family, Nii Ardey Ankrah, was
fully supported by the evidence
of four witnesses including
three members of the Ankrah
family. In my opinion that grant
made by Nii Ardey Ankrah was a
valid customary grant."
There is no reference by the
learned judge to 30 plots and
the allocation thereof in the
passage. It was not the case of
the plaintiff that he was one of
the 30 persons each of whom was
allocated one of the 30 plots.
It was the defendant who claimed
the plot in dispute through his
late mother Lamley Lamptey. The
case of the defendant was that
his late mother was one of 30
persons to each of whom was
allocated one plot out of the 30
plots. The Court of Appeal duly
considered the case of the
defendant on record. In its
unanimous judgment the court
speaking through Afreh, JA
stated:
"It is significant that although
the appellant (defendant) said
his mother was one of 30 persons
who was allocated land at
Awudome on their resettlement,
he was unable to bring any one
to give evidence in support of
his claim that his mother was
allocated one of the 30
plots...."
It is clear from the passages
reproduced from the judgment of
the Court of Appeal that counsel
for defendant misconceived
findings of fact made by the
appellate court.
The Court of Appeal raised
serious issues to expose the
weaknesses in the case of the
defendant. The defendant did not
call any of the boundary owners
whose names he had supplied to
the surveyor appointed by the
court. When it is pointed out
that the two documents, Exhibit
C and Exhibit C l which
defendant handed over to the
surveyor for purposes of
identifying and plotting the
land he claimed showed two
different and separate plots,
the failure on the part of the
defendant to offer any credible
evidence of what he called "a
small error" was fatal, in the
sense that he failed clearly and
concisely to identify the plot
of land he claimed to be his
mother's. I do not intend to
burden this opinion with a list
of cases on this issue.
Again, in the survey
instructions filed by lawyers
for defendant, the names of
adjoining boundary owners were
stated as follows - (1) Aku
Ankrah on east; (2) Laryea
Mensah on the north and (3) Aku
Thompson on the south. The
defendant closed his case and
did not call any of them. He did
not offer any explanation for
his omission or failure to call
his boundary owners.
I note that counsel for
defendant impeached portions of
the evidence of PW3 and
concluded that his evidence in
substance destroyed the case of
the plaintiff. He did not go
further to state that the
evidence of PW3 corroborated
that of the defendant. It is
therefore necessary to examine
the evidence of PW3 at length.
The evidence of PW3 on the issue
of ownership of the plot of land
in dispute reads as follows:-
"The land was granted to the
plaintiff in 1962. The land was
granted to the plaintiff by the
late head of Manche Ankrah
family Robert Nii Ardey Ankrah
after plaintiff had presented a
bottle of schnapps or gin and
£50....."
PW3 was not an ordinary witness.
He testified as follows:
"I am a Ga. I belong to the
Manche Ankrah family. I am the
treasurer of the Manche Ankrah
family. I was acting secretary
for the family and I was at all
meetings of the family. My house
is just about 200 yards from the
land in dispute".
The evidence of PW3 was not
disputed nor discredited by
cross-examination. His evidence
corroborated the evidence of
plaintiff of the issue of
ownership of the land in
dispute.
This very witness, PW3 testified
about the land allocated to the
mother of defendant. Lamley
Lamptey. He stated:
"I know the defendant has not
been given land near the area in
dispute. I know defendant's
mother was once offered a piece
of land, but she did not accept
it. I know plot No.5 was
allocated to Lamley Lamptey as
shown on Exhibit C l."
It is clear from the above that
the defendant was allocated plot
No.5 as shown on Exhibit C l
which document defendant handed
over to the court surveyor. As
pointed out elsewhere in this
opinion, defendant sought to
reject his own document on the
unexplained ground that Exhibit
C l contained a small error.
The evidence on record supports
the finding by the trial Judge
that the plaintiff successfully
discharged the burden he
assumed. The plaintiff did not
seek to prop up his case by any
weakness in the case of the
defendant.
In this action, the case of the
defendant consisted only in
repeating what he pleaded on
oath. He did not call any
evidence to corroborate his own
evidence. The witnesses from
Manche Ankrah family by their
testimony supported and
corroborated the evidence of the
plaintiff and not that of the
defendant.
Counsel for defendant dealt at
great length with Exhibit C and
Exhibit Cl. I need not deal with
the issues raised because
counsel misconceived the
contents of these two documents.
As pointed out earlier, the
plaintiff had nothing to do with
the preparation and or
production of these two
documents. The plaintiff did not
put these two documents in
evidence. These two documents
were documents which the
defendant used to describe and
identify the land he claimed.
The evidence of the court
surveyor who tendered Exhibit C
and Exhibit Cl left the trial
court in no doubt that Exhibit C
identified a plot quite distinct
from the plot of land on Exhibit
Cl. The trial judge made finding
on this issue. The finding was
supported by the evidence on
record. The Court of Appeal
affirmed the finding. Before us,
it has not been shown that the
finding cannot be supported by
the evidence.
Ground (iii) on the notice of
appeal reads:
(iii) The Court of Appeal erred
in accepting and relying on the
evidence of PW3 to the effect
that although the plaintiff's
(defendant's) mother was one of
the 30 persons allocated the 30
plots she disclaimed it although
the plaintiff nowhere confessed
in his pleadings that the
defendant's mother was one of
the 30 members who were
allocated these plots but she
rejected that plot given to her"
Arguing this ground, counsel for
defendant contended that the
plaintiff did not plead this
substantial and material fact.
He argued that the plaintiff
should have pleaded this fact
and given evidence on it. Since
the plaintiff did not do this
counsel for defendant submitted
that the Court of Appeal should
have ignored the evidence of PW3
on this issue and not used in
its judgment in particular, when
the Court of Appeal held that
the defendant should have
contradicted or denied the
evidence that his mother
rejected and disclaimed plot
No.5.
In reply, counsel for plaintiff
submitting that the law enjoined
the defendant to object to
inadmissible evidence at the
time it was tendered. He cited
S. 6(1) of the Evidence Decree,
1975 (NRCD 323) and also the
cases of Asomah vrs. Sevordzie
(1987-88) 1 GLR 67 and Atta vs.
Adu (1987-88) 1 GLR 233.
It is necessary to reproduce S
6(1) of NRCD 323 as follows:
"6(1) in every action and at
every stage thereof, any
objection to the admissibility
of the evidence by a party
affected thereby shall be made
at the time the evidence is
offered".
This rule was considered by the
Supreme Court in Asomah vs.
Sevordzie (1987-88) 1 GLR 67. At
holding (1) appears the
interpretation of the sub-rule.
"...(i) therefore if at the
trial evidence being given by a
party had no bearing on the
facts he had pleaded it was the
duty of opposing counsel to
object to that evidence and
exclude it. If that was not
done, and the evidence got on
the record, then a court could
not shut its eyes to it in
considering the case as a whole,
especially if it was against the
party that led it..."
The decision in the Asomah case
was given on 19th March 1987.
Some three months later, on 15
June 1987, the Supreme Court in
Atta and another v. Adu
(1987-88) 1GLR 233 held at
holding (1) that:
"(1) The Evidence Decree 1975
(NRCD 323) S.6(1) provided that
where evidence was not pleaded
but let in at the trial, the
court was obliged to consider
the matter so let in..."
The above interpretation of
S.6(1) of NRCD 323 is sound and
cannot be questioned. I find no
merit in this ground of appeal.
Counsel for defendant next
argued ground (one) on the
notice of appeal.
It reads:
"(1) The Court of Appeal erred
in law in rejecting the
proposition put forward on
behalf of the appellant to the
effect that where a plaintiff
seeks recovery of possession of
land from a defendant who is in
possession the plaintiff has the
burden of proving a better title
to the land and succeeding on
the strength of his own case and
not on the weakness of the
defendant's case."
In arguing this ground of
appeal, counsel for defendant
sought to rely on ss. 21, 24 and
48(1) of NRCD 323. He contended
that since the evidence on
record established that the
defendant was the party in
actual possession of the land in
dispute the plaintiff could only
succeed if the plaintiff proved
and established a better title
to the plot of land. He did not
refer to the pieces of evidence
which established and proved
that the defendant was the
person in actual possession.
This was pointed out in the
reply of counsel for plaintiff,
namely "that no basis exist for
this contention".
The law on the burden of
persuasion has received
respected judicial
interpretation. I need not
burden this opinion by compiling
a list of them. I find that
counsel for defendant, did not
refer to any evidence to prove
and establish that defendant was
in possession. In his
evidence-in-chief the defendant
testified as follows:
"At that time, that is when the
grant was made to my mother, the
grantor was Nii Ardey Ankrah who
was the chief or manche.........
The area was properly laid out
and my mother's plot was No.
10".
I must immediately point out
that the defendant did not tell
the court when the grant was
made by Nii Ardey Ankrah to his
mother. The statement of defence
did not indicate when the grant
was made to the mother of the
defendant. Unlike the defendant
the plaintiff pleaded at
paragraph 3 of the Statement
Claim that Nii Ardey Ankrah in
or about 1962 made a grant of
the land in dispute to him. The
plaintiff repeated this averment
on oath. The plaintiff provided
corroborative evidence of his
grant. The defendant as pointed
out already, failed and omitted
to produce evidence to
corroborate his bare and
ambiguous evidence that the land
was granted to his mother by the
very person, Nii Ardey Ankrah.
The Court of Appeal was right in
law in rejecting the
uncorroborated and imprecise
evidence of the defendant.
Clearly and plainly the sections
of NRCD 323 relied on as well as
the case law cited by counsel
for defence do not apply in the
instant case.
Counsel for defendant did not
argue the remaining grounds and
gave reasons for so doing. I
agree that the arguments and
submissions to be canvassed and
made had been taken care of. No
useful purpose would be served
in repeating them.
The Court of Appeal dismissed
the appeal because the findings
of fact made by the trial judge
were supported by the evidence
on record. Before us, counsel
for the defendant did not
succeed in demonstrating and
establishing that the evidence
on record do not support the
findings of fact. The Court of
Appeal concluded its judgment as
follows:
"The issues before the trial
court were issues of fact. He
adequately considered the
evidence before him.... There is
evidence to support his
conclusions. It is trite law
that an appellate court should
not reverse findings of fact
made by a trial judge unless
there are good reasons for doing
that".
I am in entire agreement with
the above statement of law. The
findings of fact are supported
by the evidence on record. I
find that grounds (iv), (v) (vi)
and (vii) raised issues and
matters that have been
sufficiently and adequately
dealt with in this opinion. No
useful purpose would be served
if I repeated myself. In the
result, I would dismiss the
appeal.
GEORGE LAMPTEY,
JUSTICE OF THE SUPREME COURT
AMPIAH, JSC:
I agree.
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, JSC:
I agree
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
ADJABENG, JSC:
I agree
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
ADZOE, JSC:
I also agree.
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. JAMES AHENKORAH FOR THE
APPELLANTS
MR. CHARLES HAYIBOR FOR
RESPONDENTS |
