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Land - Declaration of title -
Parcel of land - Traditional
evidence - Damages
for trespass and destruction of
food crops - Order for
cancellation of registered
document - Perpetual injunction
- Capacity to initiate the
action – Whether or not the
Court of Appeal erred on the
issue of capacity which has
created exceptional
circumstances meriting this
appeal - Section 34 of the
Courts Act, 1993, Act 459
HEADNOTES
It is the case of the original
plaintiff, Comfort Offeibea
Dodoo that she is the daughter
and surviving Executrix of the
late Mercy Naa Aponsah who died
Testate, leaving a Will, probate
of which was granted by the High
Court, and that she is the
beneficiary of the said Will
together with the Atu We, Adjebu
We, and the Ayikushie We
families by bequest from the
Will of the Late Mercy Naa
Aponsah also known as Mercy
Dodoo.
That
probate of the said Will was
granted on 5th May
1988 by the High Court, Accra In
1979, the land covered by the
Will was plotted at Koforidua
Lands Commission, in the Eastern
Region as No.1582/1979 by the
testatrix. The pleadings further
asseverate that before the
Registration, she informed all
her boundary owners that she was
going to demarcate her land so
they should be present during
the exercise. It was the case
of the Plaintiff that, the
Testator’s family had exercised
overt acts of occupation,
dominion, possession and
ownership on the land by
themselves and also allowing
settler farmers to settle for
long periods of time and also
alienating portions to others to
farm on portions of the land and
aliening portions to developers
without let or hindrance from
the Defendants and their
predecessors for long periods of
time. The Plaintiff further
contended that, her family had
been collecting yearly rent from
the tenant farmers in kind
through their caretakers, who
also lived on the farms on the
land. Sometime in 1999, the
plaintiff had information that
the Defendant’s family, which is
the Nii Tetteh Mensah Family of
Pobiman had applied for
registration of part of the
plaintiff’s land. She got her
solicitor to file a caveat by
the solicitor’s letter dated 5th
February, 1999. Nothing was
heard from the Lands Commission
until she heard in August 2000
that a portion of her family
land had been registered by the
Nii Tetteh Mensah Family as
NO.R225/97 at Accra and this she
said was fraudulent since the
land had already been plotted at
Koforidua Lands Commission,
the High Court declared the
Plaintiff to have title to the
piece or parcel of land in
claim, Dissatisfied with the
judgment of the High Court, the
defendants appealed to the Court
of Appeal who unanimously
dismissed the appeal. The
Defendants being dissatisfied
with the decision of the Court
of Appeal, have appealed to this
Court
HELD
we are of the
firm view that the Plaintiff and
her witnesses have demonstrably
established hard facts of overt
acts of ownership and possession
coupled with recent and
contemporaneous acts by their
predecessors consistent and in
tandem with accepted legal
principles. Based on the above
and from our analysis of the
concurrent findings of fact made
by the two lower courts, which
we have analysed supra, we have
no hesitation in confirming the
decision of the Court of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Courts Act,
1993, Act 459
CASES
REFERRED TO IN JUDGMENT
Djin vrs
Musah Baako (2007-2008) SCGLR
686
Thomas v
Thomas [1947] ALL E.R. 582
Powell v
Streatham Manor Home [1935] A.C.
243 at 250
Doku v Doku
[1992-93] GBR 367
Koglex Ltd.
(No.2) v Field) 2000 SCGLR, 175
Akufo-Addo v
Cathline [1992] 1 GLR 377
Achoro v
Akanfela [1996-97] SCGLR, 209,
holding 2
Obeng v
Assemblies of God Church, Ghana
[2010] SCGLR 300
Gregory v
Tandoh IV and Hanson [2010]
SCGLR 971
Jass Company
Ltd. v Appau [2009] SCGLR 265
Awuku Sao v
Ghana Supply Co. Limited [2009]
SCGLR 710
Fosua &
Adu-Poku v Dufie (Deceased) and
Adu Poku Mensah [2009] SCGLR
Mrs Vivan Aku
Brown Danquah v Samuel Languaye
Odartey Suit No. CA/J4/4/16 June
2016
Tuakwa v
Bosom [2001-2002] SCGLR, 61
Ago Sai v
Kpobi Tetteh Tsuru III [2010]
SCGLR 762,
Abbey v Antwi
[2010] SCGLR at 17
Kwan v
Nyieni [1959] GLR 67 C.A
In
re-Ashalley Botwe Lands,
[2003-2004] SCGLR 420
Manu v Nsiah
[2005-2006] SCGLR 25 at 30 per
Lartey JSC
Neequaye
(Dec’d), Adea Kotey v Kootse
Neequaye [2010] SCGLR 348 at
355.
Re-Bill
(Dec’d) Abeka v Tetterly Bill
and Anr [2007-2008] SCGLR 66
Fred Robert
Coleman v Joe Tripollen and 4
Others C. A. J4/41/18 28th
November, 2018
Adjeibi-Kojo
v Bonsie (1957) 3 WALR 257
Adwubeng v
Domfeh, [1996-97] SCGLR 660
Ebu v Ababio
(1956) 2 WALR 55
In re
Adjancote Acquisition, Klu v
Agyemang II [1982-83] GLR, 852
Commissioner
of Lands v Adagun (1937) 3
W.A.C.A 206
Kodilinye v
Odu (1953) 2 W.A.C.A 336
Abakum
Effiana Family v Mbibado Effiana
Family [1959] GLR 362.
Yaw v Atta
[1961] GLR 513
Beng v Poku
[1965] GLR 167
Adjei v
Acquah & Others [1991] 1 GLR 13
In Re Taahyen
and Asaago Stools; Kumanin II
(substituted by) Oppon v Anin
[1998-99] SCGLR 399
Osei Yaw and
Anr. v Domfeh [1965] GLR 418
Tsrifo v Dua
VIII [1959] I GLR 63
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
THOMAS HUDGES FOR THE
DEFENDANT/APPELLANT/APPELLANT.
EKOW DADSON FOR THE
PLAINTIFFS/RESPONDENT/RESPONDENT.
DOTSE, JSC:-
INTRODUCTION
This is an
appeal from the Judgment of the
Court of Appeal Coram Gyaesayor,
Aduama Osei, and Dzamefe J.J.A
dated 12th May, 2016.
Being dissatisfied with the
judgment, the
Defendants/Appellants/Appellants,
hereafter referred to as
Defendants have filed this
appeal to the final appellate
court through a notice of appeal
dated 22nd June,
2016.
RELIEFS
CLAIMED BY THE PLAINTIFF IN THE
HIGH COURT
The
Plaintiff/Respondent/Respondent,
hereafter referred to as the
Plaintiff by its amended writ of
summons claimed against the
Defendants the following
reliefs:
a)
Declaration of title to all that
piece or parcel of land situate
and being at Amasaman and
bounded on the North by the
properties of Kofi Adjiri, on
the South by the property of
Kpakpo-Oti, on the East by the
property of Otoo Kwao and on the
West by the property of Nii
Armah and covering an area of
229.67 acre more or less and
indicated on a site plan edged
Red and showing the
measurements.
b)
Damages for trespass and
destruction of food crops and
laying waste of farm lands
c)
An order to cancel the
registered document registered
as NO.R.225/97 later amended by
order of High Court dated
25/7/2013 to No.
767/1999covering an approximate
area of 176.67 acres.
d)
Perpetual injunction to
restrain the Defendants their
assigns, representatives,
agents, servants, and anyone
claiming any right or interest
through them from alienating or
working on the land, winning
sand or in any way doing
anything on the land against the
interest of the plaintiff, the
subject matter of this suit
forever.
THE
TRAJECTORY OF THE STATE OF THE
PLEADINGS IN THE HIGH COURT
The plaintiff
on the 20th of
September, 2000 issued out a
writ which was accompanied by a
statement of claim.
On the 9th
of February, 2005 an amended
statement of claim was filed
with leave of the Court granted
on 28th January,
2005. The Defendants filed a
statement of defence on 6th
November, 2000. On the 15th
of February, 2005 the 1st
-5th Defendants filed
an amended statement of defence
and counterclaim with leave of
the court dated 10th
February, 2005. On the 8th
of March 2005, the Plaintiff
pursuant to leave of the court
filed an amended reply to the
amended statement of defence and
defence to counterclaim. A
second amended statement of
defence by the 1st -5th
defendants was filed on the 14th
of February, 2012 pursuant to
leave granted on the 14th
of February, 2012. The Plaintiff
filed an amended reply to the
amended statement of defence and
defence to the counterclaim on 8th
March, 2012 pursuant to leave
granted by the court on 1st
March, 2012.
THE CASE OF
THE PLAINTIFF
It is the
case of the original plaintiff,
Comfort Offeibea Dodoo that she
is the daughter and surviving
Executrix of the late Mercy Naa
Aponsah who died Testate,
leaving a Will, probate of which
was granted by the High Court,
and that she is the beneficiary
of the said Will together with
the Atu We, Adjebu We, and the
Ayikushie We families by bequest
from the Will of the Late Mercy
Naa Aponsah also known as Mercy
Dodoo.
That probate
of the said Will was granted on
5th May 1988 by the
High Court, Accra. In 1979,
the land covered by the Will was
plotted at Koforidua Lands
Commission, in the Eastern
Region as No.1582/1979 by the
testatrix. The pleadings
further asseverate that before
the Registration, she informed
all her boundary owners that she
was going to demarcate her land
so they should be present during
the exercise.
This piece of
evidence had been confirmed by
the evidence of Plaintiff
herself P.W.2 Anane Foli, PW3,
Agnes Ogborvi, PW4, Nii Amo
Djan, DW5, Selasi Kofi Segbo and
DW6, Amahia Mawutor, whose
family had been caretakers and
farmers on the land
respectively.
It was the
case of the Plaintiff that, the
Testator’s family had exercised
overt acts of occupation,
dominion, possession and
ownership on the land by
themselves and also allowing
settler farmers to settle for
long periods of time and also
alienating portions to others to
farm on portions of the land and
aliening portions to developers
without let or hindrance from
the Defendants and their
predecessors for long periods of
time.
The Plaintiff
further contended that, her
family had been collecting
yearly rent from the tenant
farmers in kind through their
caretakers, who also lived on
the farms on the land.
Sometime in
1999, the plaintiff had
information that the Defendant’s
family, which is the Nii Tetteh
Mensah Family of Pobiman had
applied for registration of part
of the plaintiff’s land. She got
her solicitor to file a caveat
by the solicitor’s letter dated
5th February, 1999.
Nothing was heard from the Lands
Commission until she heard in
August 2000 that a portion of
her family land had been
registered by the Nii Tetteh
Mensah Family as NO.R225/97 at
Accra and this she said was
fraudulent since the land had
already been plotted at
Koforidua Lands Commission.
The plaintiff claimed that crops
of the tenant farmers were then
destroyed by the Defendants for
sand winning and other
developments.
The Plaintiff
further contended that, in 2002,
she received a letter from the
Lands Commission Secretariat,
Koforidua which letter directed
her to present her title
documents together with receipts
evidencing payment for
registration and stamping in
1979 to the office of plotting
in Greater Accra Region. She
submitted the said documents to
the Greater Accra Office and was
issued with a Land Title
Certificate No. GA16410 in the
name of the original Plaintiff,
since at that time Mercy Naa
Aponsah was dead and it was the
original Plaintiff who was
issued with probate.
THE CASE OF
THE DEFENDANTS
It is the
case of the defendants that the
original 1st
Defendant is the head of Nii
Tetteh Mensah family of Pobiman,
with the 2nd and 3rd
Defendants being principal
members of his family and that
it is the 1st
Defendant who permitted the 4th
and 5th Defendants to
enter the land. The 1st,
2nd and 3rd
Defendants claim the land to be
for their family as the land was
acquired by settlement over
ninety (90) years ago precisely
in 1910 by their ancestor during
hunting and farming and they
have been in possession since
then without let or hindrance
from anyone.
They had also
granted portions to tenant
farmers who have villages, or
hamlets or farms on portions of
the land in dispute. The
Defendants pleaded that there
was a village called Tesano on
the land which name was given by
Zorve their tenant farmer.
The
Defendants therefore
counterclaimed as follows
against the Plaintiff, claiming
the following:
a.
An order setting aside the
plaintiff’s document registered
as Land Registry No. 1582/1979
with file No. ER257/79
b.
An order setting aside Land
Title Certificate No. GA 16410,
to the extent that they cover
Defendants Land comprised in
document with Land registry No.
797/1999.
TRIAL, AND
DECISION OF THE HIGH COURT
After the
issues had been set down for
trial, the case then proceeded
to trial with both parties
testifying and calling a total
of fifteen (15) witnesses.
Whilst the Plaintiff called
eight (8) witnesses, the
Defendants on the other hand,
called seven, (7).
At the end of
the trial, the High Court Accra,
presided over by S. H. Ocran J
on the 22nd day of
March, 2013 delivered judgment
in favour of the Plaintiff and
stated in part as follows:
“There is no
evidence before me that as at
the time that the Plaintiff
instituted this action, as the
surviving executrix and trustee
as disclosed by Exhibit ‘A’, her
power as an administratrix had
been revoked by a court of
competent jurisdiction. That
being the state of affairs, at
the time that she instituted the
action; she had the capacity to
initiate the action since the
other executor had then died.
It has been held in the case of
Djin vrs Musah Baako
(2007-2008) SCGLR 686 that
“The right of
an action to recover land of an
intestate accrues from the date
of the grant of Letters of
Administration”
In this case,
the Plaintiff was the only
surviving executrix at the time
she commenced the action and the
probate had not been set aside.
It is therefore my holding
that the plaintiff has capacity
to initiate this action in
protection of the devised
property.”
On the issue
of possession, the court held
that:-
“The
evidence
of the parties may be said to be
traditional and may be
difficult to tell who is giving
the true account except that,
that of the Defendants have been
contradicted by various
witnesses, whereas some of the
evidence of the Plaintiff have
been corroborated by some of the
witnesses of the Defendants.
However, considering recent acts
of ownership and taking into
consideration the Ewe settler
farmers on the land for over 60
years, on the authority of the
plaintiff’s family and the
inability of the Defendants to
challenge their occupation for
all these years, as I said, I do
not believe the Defendants
witnesses who claimed to have
collected “adode” for the
Defendants at a time they
themselves have not been
appointed caretakers, I hold
that the Plaintiff’s acts of
possession is more conversant
with an owner of the land than
the defendants claim which is
inconsistent with that of an
owner of land.
From the totality of the
evidence I enter judgment for
the plaintiffs as follows:
a.
The Plaintiff is declared title
to the piece or parcel of land
in claim
“a”
b.
The Plaintiff is awarded
GHc50,000.00 damages for
trespass to the said land
c.
The Lands Commission is ordered
to cancel document Registered as
No. R225/97.
d.
The Plaintiff is to recover
possession of the land
e.
The Defendants, their agents,
servants, privies, etc are
perpetually restrained from
entering the land in dispute,
and or to have anything to do
with the land described in claim
“a”
The
Defendants counterclaim is
dismissed. The Plaintiff is
awarded cost of GHc15, 000.00
Dissatisfied
with the judgment of the High
Court, the defendants appealed
to the Court of Appeal
through a
notice of appeal filed on the 17th
of June, 2013.
JUDGMENT OF
THE COURT OF APPEAL
On 12th
May, 2016,
the Court
of Appeal unanimously dismissed
the appeal filed by the
Defendants and held per Aduama
Osei J.A who spoke on behalf of
the Court as follows:
“What I have
not found in this appeal however
is a demonstration by the
Defendants that the findings,
conclusions and decisions of the
trial court did not have
reasonable support from the
record. This court will
therefore not disturb the trial
Court’s decision that the
Plaintiff is the owner of the
disputed property. It should
follow that the decision of the
trial Court dismissing the
Defendants’ counterclaim will
not be disturbed.
Now if the
Plaintiff is the owner of the
disputed land, then given that
the Defendants’ admit that their
entry of the land was in their
own right and without the
consent of the Plaintiff, the
trial Court’s decision awarding
the plaintiff damages for
trespass cannot be questioned.
Again the Plaintiff will in the
circumstances be entitled to the
restraining order made in her
favour against the Defendants in
respect of the disputed land.
This means
the appeal has failed in its
entirety and the same is
dismissed.
Cost of One Thousand Ghana cedis
(Ȼ1,000.00) against each of the
Appellants in favour of the
Respondent.” Emphasis supplied
APPEAL TO
SUPREME COURT AND GROUNDS OF
APPEAL
The
Defendants being dissatisfied
with the decision of the Court
of Appeal, have appealed to this
Court
on the
grounds below:
a.
The judgment is against the
weight of the evidence
b.
The Court of Appeal erred on the
issue of capacity which has
created exceptional
circumstances meriting this
appeal
c.
Further grounds to be canvassed
upon receipt of the Record of
Proceedings
CONCURRENT
FINDINGS OF FACT
In
considering this appeal, we have
decided to examine in some
detail, the general principle of
law which states that,
“Findings of
fact made by a trial court, and
concurred in by the first
appellate court, i.e. the Court
of Appeal, then the second
appellate court, such as the
Supreme Court must be slow in
coming to different conclusions
unless it was satisfied that
there were strong pieces of
evidence on record which made it
manifestly clear that the
findings of the trial court and
the first appellate court were
preserve.” Emphasis
See cases
such as
1.
Thomas v Thomas [1947] ALL E.R.
582
2.
Powell v Streatham Manor Home
[1935] A.C. 243 at 250
3.
Doku v Doku [1992-93] GBR 367
4.
Koglex Ltd. (No.2) v Field) 2000
SCGLR, 175
5.
Akufo-Addo v Cathline [1992] 1
GLR 377
6.
Achoro v Akanfela [1996-97]
SCGLR, 209, holding 2
7.
Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300
However, it
must also be clearly noted that,
as has been stated in the
general principle stated supra,
an appellate court,
especially a second appellate
court and a final court like
this court, has on stated
grounds verifiable from the
record of appeal departed from
the findings of fact concurred
in by the first appellate court.
In the locus
classicus decision of this court
in the case of
Gregory v Tandoh IV and Hanson
[2010] SCGLR 971,
the Supreme Court, coram,
Georgina Wood C.J, presiding,
Rose Owusu, Dotse, Gbadegbe and
Vida Akoto-Bamfo (JJSC)
speaking with unanimity through
Dotse JSC, laid down the said
principles as follows:-
“However, a
second appellate court, like the
Supreme Court, could and was
entitled to depart from findings
of fact made by the trial court
and concurred in by the first
appellate court under the
following circumstances. First,
where from the record of appeal,
the findings of fact by the
trial court were clearly not
supported by evidence on record
and the reasons in support of
the findings were
unsatisfactory; second where the
findings of fact by the trial
court could be seen from the
record of appeal to be either
perverse or inconsistent with
the totality of evidence led by
the witnesses and the
surrounding circumstances of the
entire evidence on record,
third, where the findings of
fact made by the trial court are
consistently inconsistent with
important documentary evidence
on record, and fourth, where the
first appellate court had
wrongly applied a principle of
law. In all such situations
the second appellate court must
feel free to interfere with the
said findings of fact, in order
to ensure that absolute justice
was done in the case.” Emphasis
See also
cases like
1.
Jass Company Ltd. v Appau [2009]
SCGLR 265
2.
Awuku Sao v Ghana Supply Co.
Limited [2009] SCGLR 710
3.
Fosua & Adu-Poku v Dufie
(Deceased) and Adu Poku Mensah
[2009] SCGLR 310 per Ansah JSC
and 313 per Dotse JSC
respectively.
See also the
recent application of the above
principle by our respected and
esteemed brother, Pwamang JSC
in the unreported decision of
this court in
Suit
No. CA/J4/4/16 dated 29th
June 2016 intitutled,
Mrs
Vivan Aku Brown Danquah v Samuel
Languaye Odartey.
In the
determination of the grounds of
appeal urged and argued before
us in this court, we would
therefor consider first whether
the invitation being made to us
by learned counsel for the
Defendants, Thomas Hughes in his
statement of case on behalf of
the Defendants to the effect
that, “if the findings and
conclusions of the court are
supported by the evidence on
record, the appellate court
would not disturb those findings
and conclusions. However, if
this court as a final appellate
court comes to the conclusion
that the findings are not
supported by the evidence on
record or that, the court below
based its judgment on a wrong
proposition of law, it will set
aside the findings and reverse
the judgment.” It was
after the above statement that
learned Counsel for the
defendants referred to the
unreported decision of this
Court in the Vivian Aku
Brown Danquah v Samuel Languaye
Odartey case referred to
supra.
We have thus
apprized ourselves with the
grounds of appeal argued before
us by learned counsel for the
Defendants and Plaintiffs
bearing in mind the application
for the principle on concurrent
findings of fact by two lower
courts.
DISMISSAL OF
FRIVOLOUS APPEALS
Ordinarily,
in our considered opinion, the
issues raised in this appeal
admit of no complexities
whatsoever, and could have been
dealt with summarily by reliance
on
section 34 of the Courts Act,
1993, Act 459 which provides
as follows:-
34. Dismissal
of frivolous appeals
(1)” The
Supreme Court may summarily
dismiss an appeal which is
frivolous or vexatious or does
not show a substantial ground of
appeal, without calling on a
person to attend the hearing.
(2) Without
prejudice to subsection (1), an
appeal against conviction in a
criminal case may be dismissed
summarily under that subsection
where the appellant had been
convicted on a plea of guilty.”
However,
since this court has not been
relying on the said provisions
of procedure in the Courts Act
to dispose of appeals that are
deemed to lack substance and
merit, we have reluctantly
decided to deal in extenso with
this appeal whilst
reiterating the need for the
Chief Justice, and also urging
our brethren in this court to
come out with a practice
direction to aid this court
pending an enactment that will
facilitate the summary disposal
of appeals that are deemed not
to be worthy of any serious
consideration.
GROUNDS OF
APPEAL
It is now
generally settled, that an
appeal constitutes a re-hearing.
What the re-hearing implies is
an evaluation of the evidence
and assessment of all
documentary evidence and case
law.
See
Tuakwa v Bosom [2001-2002]
SCGLR, 61 which has
been followed in a long line of
cases such as:-
1.
Ago
Sai v Kpobi Tetteh Tsuru III
[2010] SCGLR 762,
2.
Gregory v Tandoh IV and
Another, already referred to
supra specifically at page 996
3.
Abbey v Antwi [2010] SCGLR at
17, specifically at pages 34 and
35
4.
Djin v Musah Baako already
referred to supra, just to
mention a few.
GROUND B –
CAPACITY
In view of
the incisive effect and nature
of the issue of capacity that
has been raised, we deem it
expedient to consider that
first.
Relying on a
number of respected judicial
decisions, the Defendants argued
per their learned counsel Thomas
Hughes that, since “the
plaintiff, as an Executor of the
Will was only to vest the
property in the said families
and after that she could not
claim to be a Trustee of the
family having vested same in
the families. In the absence of
the consent of the families the
Plaintiff even if it is admitted
had any interest in the land, it
was limited to what she was
given and in this case
one-fourth (1/4th) of
the land which gave no size or
description of the land devised
in the Will. In the
circumstance’s the learned trial
judge erred in saying that since
the Plaintiff had tendered the
Will with probate attached and
Appellants have not disproved
that the other Executor was
dead, then the Plaintiff had
capacity to issue”
Emphasis
Based on the
above arguments, learned counsel
for the Defendants urged this
Court to set aside the previous
decisions of the trial High
Court and the Court of Appeal.
Some of the
authorities relied on by learned
counsel for the Defendants are
the following:-
1.
Kwan v Nyieni [1959] GLR 67 C.A
2.
In re-Ashalley Botwe Lands,
[2003-2004] SCGLR 420
3.
Manu v Nsiah [2005-2006] SCGLR
25 at 30 per Lartey JSC
4.
Neequaye (Dec’d), Adea Kotey v
Kootse Neequaye [2010] SCGLR 348
at 355.
From the
above cases, it is apparent that
capacity whenever it is raised
in a legal dispute in court must
be determined first, because it
is only after the court has
declared a party as having
capacity to mount the suit that
the court can proceed to
consider the case on its merits.
On this issue
of capacity, learned counsel for
the Plaintiff, Ekow Egyir
Dadson, argued that the capacity
of the plaintiff to institute
the action in the High Court had
been admirably dealt with by the
lower courts and he concluded
his submissions thus:-
“The true
position is this. The nature
of the Respondents capacity in
this suit is that, she sued as
an Executrix of a will. She also
sued as a beneficiary under that
will. The subject matter of the
suit is land that was devised
under a will. The only person
clothed with legal capacity to
sue in respect of property in a
Will is either the executor or
beneficiary. The Respondent sued
as a surviving Executrix and
also as a beneficiary under the
Will. The challenge, in
order to have any force should
have been to her status as an
Executrix or beneficiary and not
as head of family a position she
has never desired to either by
her pleadings or evidence. Part
of the “property” land was
devised to a family, the
Executor has the capacity to sue
and sued in respect of that
property”. Emphasis
Learned
counsel for the Plaintiff then
also referred the court to the
following respected judicial
decisions, Djin v Musah
Baako already referred
to supra and
Re-Bill (Dec’d) Abeka v Tetterly
Bill and Anr [2007-2008] SCGLR
66, Kwan v Nyieni
already referred to supra.
We have
verified the contending
positions of learned counsel
against the record of appeal and
the applicable law.
From the
appeal record, there is a
certificate of authentication
from the Public Records and
Archives Administrative
Department marked as No. 0901930
authenticating probate issued
from the Registry of High Court,
Accra, dated 5th day
of May 1988, indicating that,
the original Plaintiff herein,
Comfort Ofeibea Dodoo and Nii
Ashie Hammond a.k.a Nii Djase
were appointed as the Executor
and Executrix of the Will of
Mercy Naa Aponsah a.k.a Mrs.
Mercy Dodoo the Testatrix
therein.
There is also
proof that, the original
Plaintiff herein, was in
addition to her being appointed
an Executrix under the Will,
also a beneficiary as per
devises made therein in the
Will.
We have also
verified from the record of
appeal, and there is infact no
controversy about this, that as
at the time of the institution
of the instant action in the
High Court, only the original
Plaintiff, and one of the two
Executors was alive. That being
the case, she was the only
person legally clothed to have
instituted the action to protect
the properties, the subject
matter of the devises under the
will.
We have also
verified and confirmed the
devises of the disputed land in
paragraph 3 of the Will to the
original Plaintiff herein, and
the other beneficiaries therein
named.
But for the
vehemence and industry which
learned counsel for the
Defendants spent in belabouring
arguments on this issue of
capacity which we have concluded
is completely misguided and
without any basis and substance
whatsoever, we would have
summarily dismissed this
argument.
However, we
have as a prelude to our
invocation of the provisions in
section 34 of the Court Acts,
1993, Act 459, already referred
to supra, decided to be
detailed.
We have
already made the necessary
findings of fact consistent with
our position on concurrent
findings of fact by the trial
court and the first appellate
court.
We also note
that, our brethren in the Court
of Appeal adequately dealt with
this issue of capacity and
learned counsel for the
Defendant should have taken a
cue from that legal education.
Out of
abundance of caution, it is
considered prudent and
worthwhile at this stage to
reproduce the salient aspects of
the Court of Appeal rendition on
this subject matter as follows
in the unanimous judgment of the
court delivered by Aduama-Osei
(JA)
“I have
looked at the Will at page 283
to page 285 of volume 2 of the
Appeal Record and I find that
the plaintiff was indeed
appointed as an executrix under
it.” I also notice from the
Vesting Assent, which is at page
313, of Volume 2 of the Record,
that by it, the Plaintiff as
“the only surviving personal
representative and executrix of
the Will of the late Mrs. Mercy
Amponsah Dodoo” assented to the
vesting of the disputed land in
“Mrs Comfort Ofeibea Dodoo as
beneficiary and also to hold
same in trust for the Ato We
(Family) Adjebua We Family, and
Ayikushie family”.
To the best
of my understanding, by the
above-quoted words in the
Vesting Assent, the Plaintiff
has vested the disputed property
in herself as a beneficiary, and
has also made herself a trustee
for the Ato We, Adjebua We and
the Ayikushie We families in
respect of the said property.
I notice that
during the cross-examination of
the current Plaintiff, it was
suggested to her that Comfort
Ofeibea Dodoo had no right to
vest the properties in her name.
That may well be so. But then
it is up to the other
beneficiaries to challenge her
right to do so, if they feel
aggrieved. Looking at the
Vesting Assent as it stands now,
it proves a vested interest on
the part of the Plaintiff in
respect of the disputed
property. I am aware of the
contention by Counsel for the
Defendants that the vesting
assent is a nullity, and that
the Will itself is invalid. I do
not however consider that
contention a helpful
contribution in this discussion
on capacity. This is because
probate of the Will has not been
set aside.
If therefore
the vesting assent is a nullity,
it will only mean that the
properties devised under the
Will have not been distributed
yet, and with the death of Nii
Ashie Hammond, the Plaintiff
remains the only person clothed
with capacity to deal with any
of those properties.
In my view,
the record discloses such
interest on the part of the
Plaintiff in respect of the
subject matter of this suit as
to entitle her to a hearing. I
accordingly dismiss Ground 2 of
this appeal. Emphasis
However, we
in this court, whilst agreeing
in substance with our brethren
in the Court of Appeal, we wish
to clarify a few points for
purposes of emphasis.
1.
The Plaintiff who instituted the
action against the defendants
had capacity to do so under both
the principles stated in
Kwan v Nyieni (supra)
line of cases and Djin v
Musah Baako referred to
supra.
2.
The Will of the Deceased
Testatrix, probate of which had
been granted by the High Court
remains valid unless set aside
by a party who has the requisite
capacity.
3.
Similarly, all the devises made
under the Will, to the
beneficiaries therein named
remain valid and subsisting.
4.
If anything at all, it is the
Vesting Assent by the Plaintiff
herein as a Trustee that may be
called into question by the
recognized and valid persons
with capacity.
5.
The principle of nullity
introduced as a red herring by
the Defendants has not and will
not affect the validity of the
Will and the Devises made
thereunder.
Finally, and
quite importantly those persons
propounding the contention that
the Will and the Devises made
thereunder are null and void
should re-think their position.
It will not be enough to
instigate anybody or group of
persons and urge them by
inducements to style themselves
as representatives of the other
beneficiaries under the Will to
question the validity of the
Will and the Devises therein
made. It has become too common
for people with a communal
interest in landed properties to
connive with greedy land
litigants and seek to deprive
their own inheritance for a mere
pittance.
The interest
of such persons must be properly
evaluated in the broader
interest of the competing
interests and the timely nature
of their conduct.
Save for the
above comments and
clarifications, we also likewise
dismiss this ground of appeal on
capacity as unmeritorious.
GROUND A
We have
evaluated the principles of the
findings of fact made by the
learned trial Judge and
concurred in by the first
appellate court. We are of the
considered opinion that there is
really no basis to overturn the
judgments of the two lower
courts.
This is
consistent with our position on
concurrent findings of fact made
by the two lower courts which
are consistent with the evidence
on record and supported by
documentary and viva voce
evidence.
See
Obeng v Assemblies of God Ghana
(referred to supra) line of
cases already dealt with.
The Plaintiff
testified on her own behalf and
called eight (8) witnesses.
It is
important to stress that, whilst
Plaintiff testified on essential
matters and laid a strong basis
for the various overt acts of
ownership which she and her
predecessors have exercised in
respect of the land in dispute,
the Defendants even though also
testified and called seven (7)
witnesses, the combined effect
of their testimony did not
measure up to the standard set
by the Plaintiff and her
witnesses.
Mention must
be made of the fact that, even
though the Plaintiff did not
call any direct boundary
witness, her testimony and those
of her witnesses were more than
convincing. It was this which
led the learned trial Judge to
conclude that boundary witnesses
were called by the Plaintiff.
In her
evidence in chief, the Plaintiff
testified that, her predecessor
in title, Klorkor Klotey,
travelled to Atoman with her
husband and acquired the land in
dispute from Nana Ampah and
another and paid for same with
cowries which was the medium of
exchange (legal tender) in those
olden days.
THE LAND
OWNERSHIP LINEAGE OF THE PARTIES
The Plaintiff
founded her claims to the
disputed land on it’s purchase
by her great great ancestor
called Klorkor Klottey.
This event we
are told happened several
generations ago, about 200
years.
What is to be
noted is that, after purchase,
Klorkor Klottey permitted his
brother called Klottey a.k.a
Ato, to live on the land and
establish ownership rights.
Hence the creation of the Atoman
village. This Ato, according to
the evidence on record permitted
several Ewe Settler farmers to
settle, farm and perform several
overt acts of ownership on the
land whilst, attorning yearly
tenancy to the original owner of
the land, her representatives
and assigns throughout the
years.
With the
passage of time, the following
persons succeeded Klorkor
Klotey and her brother Ato in
the following descending order,
Mary Adjeley Adjei, then Mercy
Naa Aponsah a.k.a Mrs. Mercy
Dodoo, who is the Testator who
made a Will devising portions of
the disputed land to Comfort
Ofeibea Dodoo, the original
Plaintiff and then to the
present substituted Plaintiff,
Vivian Naa Kwamah Ankrah.
It must also
be re-emphasised that, the
various generations of settler
farmers mostly, Ewes and their
successors who have lived on the
land in dispute but attorned
tenancy to the Plaintiff and her
predecessors in title have all
testified in proof of the above
overt acts of ownership.
Using
conservative computations of
time, we are of the considered
view that the 200 years of the
purchase of the land by the
original owner, Klorkor Klotey
through the various predecessors
named supra is consistent with
the said 200 years of time.
1ST
DEFENDANTS ANCESTRY
According to
the 1st Defendants,
their land was founded by Nii
Tetteh Mensah during farming and
hunting expedition in 1910.
According to the evidence of the
substituted 1st
Defendant David Aweletey Obodai,
the land was founded by his
grandfather Nii Tetteh Mensah
who founded same during hunting
and farming in 1910. He stated
further that, the original 1st
Defendant, Nii Amartey Mensah
(now Deceased) and his mother
have the same father.
The
substituted 1st
Defendant stated during his
evidence in chief that the
original 1st
Defendant was a grandson of the
founder of the land, Nii Tetteh
Mensah.
On the
whole, the evidence of the 1st
Defendant lacks credibility on
the genealogy of his ancestry.
He claims he was born in 1953,
and that the original 1st
Defendant was born before the
original founder of the land
died.
Considering
the time of the alleged hunting
expedition in 1910 and bearing
in mind that the suit was
instituted in the year 2000, and
further taking into view the
circumstances of the land, being
so close to Accra and
juxtaposing it with the evidence
of the plaintiff and her
ancestry line with the various
overt acts of ownership
performed by them and on their
behalf, the 1st
Defendant’s evidence pales into
insignificance and lacks
credibility.
SPECIFIC
EVALUATION OF THE PLAINTIFF’S
EVIDENCE
She continued
her evidence to the effect that,
after the purchase, by her
ancestor Klorkor Klotey, she
permitted her bother Ato to take
care of the land and accordingly
exercised overt acts of
ownership. Specie of such
conduct lay in Ato establishing
the Atoman village and
permitting some Ewe settler
farmers to live and farm on the
land.
It is
interesting to observe that,
some of these Ewe settler
farmers still have their
descendants on the land in
dispute.
The Plaintiff
mentioned the following as some
of the settler villages
established by the farmers on
the disputed land as Ogborvi
Kope, Kwaku Achim Kope, Gbedema
Kope, Osuame-Kope, Ahiase-Kope
and others.
She added
that, the dispute is in respect
of the land occupied by all the
said villages. According to the
Plaintiff, the headmen of these
settler villages attorned
tenancy to her predecessors in
title and that was the nature of
the relationship between them to
date with their predecessors.
The Plaintiff
also explained the circumstances
under which the Survey Map in
respect of the land was prepared
with notice to all the boundary
owners who were present to
authenticate the boundaries.
The Plaintiff
testified that, during the
preparation of the survey plans
that was used by her
predecessors for the land
documents tendered into
evidence, notice was given to
all the boundary owners to come
forward and ascertain the fact
of the boundary with her
predecessor’s lands.
After stating
the boundaries of the land as
sharing boundary on the north
with Kofi and Agyiri, on the
South by Nii Kpakpo Oti, on the
West by Armah and on the East by
Otoo Kwao, the Plaintiff
continued that, all the boundary
owners mentioned supra, came for
the survey with their respective
caretakers, who walked around
the boundaries, ascertained same
by cutting their known boundary
lines.
The Plaintiff
concluded that, all the persons
present accepted the boundary
line that was drawn after which
the document was prepared and
presented to the Land Commission
at Koforidua because by that
time, Amasaman was in the
Eastern Region, whose capital
was Koforidua.
In proof of
the above evidence a letter on
page 309 of Volume 2, dated
31/10/2002 which originated from
the Lands Commission, Koforidua
to the Executive Secretary,
Lands Commission, Accra and it
reads as follows:-
“Re-Plotting
of Document in the Greater Accra
Region – Declaration No. ER.
257/79”
The attached
document which was originally
plotted in the records of the
Eastern Region Lands Commission
is re-submitted by the applicant
for plotting in the Greater
Accra Records since the site now
falls within the latter region.”
We have seen
another letter to the same
effect dated 15th May
2007 on page 310 of volume 2.
We have also
sighted three letters, all dated
20th October 1988
written by Charles Hayibor Esq,
acting for and on behalf of the
original Plaintiff wherein the
services of one Kpakpo who acted
as caretaker of the Plaintiff
had been withdrawn and another
caretaker, Aryee Muslim
appointed in his place.
Besides the
above pieces of evidence which
were not shaken during
cross-examination, the Plaintiff
called the following witnesses.
P.W1- Oppong
Yaw Mensah,
Registrar of the High Court,
Accra who was subpoenaed to
tender an Amended Statement of
Defence filed on 1/6/2010 in
suit No. L. 547/97, intitutled,
Nii Okine Dorwose Lokko,
substituted by Deitse Djanie v
Vivian Naa Kwawa Ankrah
P.W.2 - Anane
Foli- Farmer and Caretaker
This witness
testified that, his father Foli
Kavege, was a caretaker of the
original Plaintiff for well
over 40 years and that after his
father’s death, he took over as
caretaker on Atoman village.
He testified that whilst there
had been caretakers long before
his father, who was a caretaker
for 40 years, at the time of his
evidence he had been caretaker
for 30 years, making it 70 years
as between him and his father
alone.
This witness
also confirmed the clearing of
the boundary lines by the
respective land boundary owners
before the survey was prepared.
He also
confirmed the fact that all the
caretakers before him and he
himself attorned tenancy to the
plaintiff’s predecessors or to
the Plaintiff.
He also
confirmed the existence of all
the villages mentioned by the
Plaintiff.
PW3 – Agnes
Ogborvie Dede
This witness
at the time she testified was 90
years.
She said that, it was her
husband who acquired the land
from Plaintiff’s predecessor and
established the village and
named it after himself. She
indicated that she had been in
the village for almost 50 years.
From the evidence of P.W.3, the
impression is clear that the
Plaintiff and her predecessors
performed various overt acts of
ownership on the land without
let or hindrance from the
defendants whatsoever.
PW4 – Nii Amo
Djan
This witness
established himself as a
pensioner, aged 84 years at all
material times and the Chief of
Djanman and head of the Nii Djan
Family. His evidence is
significant in the sense that he
admitted that the land
boundaries mentioned by the
Plaintiff, and confirmed by PW2
Anane Foli as the caretaker of
Atoman village belongs to the
Plaintiff and her predecessors.
He also confirmed that he has
known the said PW2 since the
time he was enstooled as Chief
in 1973.
PW5 – Anthony
Yaw Dadali
Like PW2,
Anane Foli, PW5 was also born
and bred at Ogbovikope. Indeed,
he confirmed that it was PW2’s
father who gave his father
permission to farm, settle and
then founded Ogbovikope, as his
father was called Ogbovi Dadali.
Like the
other witnesses before him, he
and his father all performed
overt acts of ownership with the
leave and license of the
Plaintiff and her predecessors.
The father of this witness
cultivated palm plantation on
the land.
What is
significant about all these
witnesses who have settled on
the land of the Plaintiff is
that, the Defendants were not
able to disturb their evidence
during cross-examination.
PW6 – David
Doe, a Staff of the Lands
Commission, an Assistant Chief
Recording Officer
The
significance of the evidence of
this witness lies in the fact
that he confirmed the existence
of land document No. 1582/1979
in the name of the original
Plaintiff herein.
He further
explained that, land document
No. 1582/1979 in the name of
Comfort Ofeibea Dodoo was
earlier registered as No. ER
257/79.
PW7-Jacob
Annan
He was called
in his capacity as a Technical
Officer at the Lands Commission
at all material times in
Koforidua. This evidence is
significant for the reason that
it confirmed that before the
establishment of the Greater
Accra Region, plotting and
registration of title documents
of lands in Amasaman like the
land in dispute were done in the
Koforidua office up to and
including 1979.
The last
witness called by the Plaintiff
is PW8, Yaw Logo
This witness
is also a settler farmer who
lived with his father and others
on portions of the land in
dispute, e.g. Logokope,
Ogbovikope where he and his
parents farmed at the instance
of the original Plaintiff. He
also knew PW2, Anane Ofori and
confirmed in all material
particulars the establishment of
the settler villages on the
disputed land as well as the
attornment of tenancy to the
Plaintiff and her predecessors
in title. Of particular
importance is the evidence by
PW8 that he was one of the five
people who took part in the
clearing of the boundary lines
for the purpose of the Survey
that was undertaken.
In brief,
this is the evidence of PW8 on
the question “as to how many
of them participated in the
clearing”.
Answer: “We
were five, being Kpakpo, Yaw
Logo, Anane Ofori, Ofori Mensah,
Mensah and Kwaku Agbewordi. It
took us two months to clear the
boundary. We were instructed by
Comfort Ofeibea Dodoo to
demarcate. During the
demarcation of the boundary,
nobody confronted us.
Comfort Ofeibea Dodoo fed us
during the clearing of the
boundary. There are 4
cemeteries on the land. These
are at Atoman, Logokope,
Osuamekope and Ogbovikope. These
cemeteries were established on
the authority of Comfort Ofeibea
Dodoo.” Emphasis
Finally, the
witness denied that the 1st
Defendant owns the land in
dispute in very categorical
terms.
COMMENTS ON
OVERT ACTS OF OWNERSHIP OF THE
PLAINTIFF
In the
unreported decision of the
Supreme Court in
C. A.
J4/41/18 dated
28th
November, 2018 intitutled,
Fred Robert Coleman v Joe
Tripollen and 4 Others,
the court in expatiating on what
constitutes overt acts of
ownership, held as follows:-
“For example,
we all know that, ordinarily,
dead people are not buried
clandestinely in the night.
Besides, burial of a corpse on a
land connotes ownership and an
incident of overt acts of
possession and ownership. The
Plaintiff succeeded in showing
the tombstone of the grand
mothers who died in 1931 and the
Defendants cannot feign
ignorance of the above.”
Emphasis
By parity of
reasoning the Plaintiff has in
this case authorised the
establishment of about four
different cemeteries on
different parcels of the land in
dispute which are being occupied
by the agents and assigns of the
Plaintiff. This is definitely an
overt act of ownership.
DEFENDANTS
AND THEIR WITNESSES
On the
contrary, the 1st
Defendants evidence is nothing
to write home about. In essence,
the Defendant testified that his
predecessor was called Nii
Tetteh Mensah who was a hunter
and farmer, and he founded the
land during his hunting
expedition and settled on it in
1910. Having examined and
evaluated the entire testimony
of the 1st Defendant,
the boundary owners he named as
sharing boundary with and the
application of guiding
principles on ascertaining
traditional evidence, we are of
the considered view that the 1st
Defendant has not given such
credible evidence that can match
that of the Plaintiff and her
witnesses.
For example,
out of the seven (7) witnesses
called by the Defendants, two
(2) are technical and or expert
witnesses.
These are
D.W.4, Emmanuel Bampo licensed
Surveyor and D.W.7 David Doe,
who works with Lands Commission
in the Land Registration
Division.
DWI, Robert
Ralph Ebenezer Hugh Tagoe, a
retired Customs Officer and DW2,
David Annoh Quarshie, a retired
D.C.O.P
aged 81 years both of whom are
pensioners claim to be adjoining
land owners who share boundary
with the 1st
Defendants for barely 20 and 18
years respectively. In the case
of DW2, it is clear that his
land is not at Kpobiman, but at
Sapeiman and appears not to know
much about the disputed land.
From his
answers during
cross-examination, on pages 405
to 406 Volume 1 it is certain
that the witness is not truthful
and his evidence has been very
well discredited.
The remaining
two witnesses, D.W.5, Selasi
Kofi Segbao and D.W.6, Amahia
Mawutor are also settler
farmers.
D.W.5
testified that, he was born on
Ozuamekope and has lived there
all his life. He further stated
that this village is near
Sapeiman and is on a boundary
with villages which shares
boundary with the land in
dispute.
Indeed during
cross-examination, DW5 confirmed
that he has ever worked for PW8,
the headman or caretaker of the
Plaintiff in his village before.
He also
confirmed the status of PW2 and
PW3, Anane Foli and Agnes
Ogborvie respectively and
their tenancy relationship with
the Plaintiff.
DW6, Amahia
Mawutor
can be described as an
untruthful witness who appeared
to us not to know much about the
disputed land.
In as much as
this witness tried to deny the
obvious, he nonetheless had
to admit the status of Anane
Foli, PW2, PW3, madam Agnes
Ogborvi and Yaw Logo PW8 and
their relationship with the
Plaintiff vis-à-vis the disputed
land.
APPLICABLE
TEST TO DETERMINE CONFLICTING
TRADITIONAL EVIDENCE
One matter
which has attracted our
attention in this delivery is
the issue and significance of
traditional evidence. What must
be appreciated is that, both
parties relied basically on
traditional evidence. Secondly,
it must also be further
appreciated that this is what
they all used to procure the
fixing of their boundaries and
eventually their documents of
title.
However, in
assessing the various pieces of
traditional evidence, it is
worthwhile to take into
consideration the admonition by
Lord Denning in
Adjeibi-Kojo v Bonsie (1957) 3
WALR 257 at
260 PC, where the
distinguished legal luminary
opined as follows:-
“Once
traditional history is handed
down by word of mouth, it must
be recognszed that, in the
course of transmission from
generation to generation,
mistakes may occur without any
dishonest motives whatever.
Witnesses of the utmost veracity
may speak honestly but
erroneously as to what took
place a hundred or more years
ago.” Emphasis
In the
celebrated case of
Adwubeng v Domfeh, [1996-97]
SCGLR 660 at
671, Acquah JSC (as he
then was) posited as follows:-
“Accordingly,
a court cannot simply reject a
party’s traditional evidence on
such petty and trifling
matters.” Emphasis
Indeed the
Privy Council in the earlier
case of
Ebu v Ababio (1956) 2 WALR
55 at 57,
stated as follows:-
“Traditional
evidence has a part to play in
actions for declarations of
title but there are cases in
which a party can succeed even
if he fails to obtain a finding
in his favour on the traditional
evidence. “Emphasis
Having
evaluated the pieces of
traditional evidence given by
the parties in this case, we are
now faced with applying the
appropriate test that are to be
applied.
The Court of
Appeal per Edward Wiredu JA, (as
he then was) addressed these
concerns in the case of
In
re Adjancote Acquisition, Klu v
Agyemang II [1982-83] GLR, 852,
particularly at 857
where the court unanimously set
out the following as a guide.
1.
“Oral evidence of tradition is
admissible in the courts of West
Africa and may be relied upon to
discharge the onus of proof if
it is supported by the evidence
of living people of facts within
their own knowledge”. See
Commissioner of Lands v Adagun
(1937) 3 W.A.C.A 206.
2.
“Where it appears that the
evidence as to title is mainly
traditional in character on each
side and there is little to
choose between the rival
conflicting stories, the person
on whom the onus of proof rests
must fail in the decree he
seeks”. See
Kodilinye
v Odu (1953) 2 W.A.C.A 336 and
Abakum Effiana Family v Mbibado
Effiana Family [1959] GLR 362.
3.
“Where there is a conflict of
traditional history, the best
way to find out which side is
probably right is by
reference to recent acts in
relation to the land.” See
Yaw v
Atta [1961] GLR 513.
4.
“Where claims of parties to an
action are based upon
traditional history which
conflict with each other, the
best way of resolving the
conflict is by paying due regard
to the accepted facts in the
case which are not in dispute,
and the traditional evidence
supported by the accepted facts
is the most probable case.” See
Beng v
Poku [1965] GLR 167
5.
“Where the whole evidence in a
case is based on oral tradition
not within living memory, it is
unsafe to rely on the demeanour
of the witnesses to resolve
conflicts in the case, see
Adjeibi-Kojo v Bonsie
already referred to supra”.
Applying some
of the above principles, and
guidelines, the Supreme Court in
a unanimous decision in the case
of
Adjei v Acquah & Others [1991] 1
GLR 13,
particularly at page 19, held as
follows:-
“The law
was that although traditional
evidence had a part to play in
actions for declaration of
title, a favourable finding on
its evidence was not necessarily
essential to the case of the
party seeking the declaration.
What the authorities required
was that traditional evidence
had to be weighed along with
recent facts to see which of the
two rival stories appeared more
probable. Facts established by
matters and events within living
memory, especially evidence of
acts of exercise of ownership
and possession must take
precedence over mere traditional
evidence.” Emphasis
Quite
recently, the Supreme Court in
the case of
Achoro v Akanfela [1996-97]
SCGLR 209,
particularly at 213, Acquah JSC,
(as he then was) spoke with
unanimity as follows:-
“Now part
of the evidence led by both
parties is traditional, and
the best way of
evaluating traditional evidence
is to test the authenticity of
the rival versions against the
background of positive and
recent acts.” Emphasis
Finally, in
the case of
In Re
Taahyen and Asaago Stools;
Kumanin II (substituted by)
Oppon v Anin [1998-99] SCGLR 399,
the Supreme Court held in
holding one as follows:-
“in assessing
rival traditional evidence, the
court must not allow itself to
be carried away solely by the
impressive manner in which one
party narrated his version, and
how coherent that version is,
it must rather examine the
events and acts within living
memory established by the
evidence, paying attention to
undisputed acts of ownership and
possession on record; and
then see which version of the
traditional evidence, whether
coherent or incoherent, is
rendered more probable by the
established acts and events. The
party whose traditional evidence
such established acts and events
support or render more probable
must succeed unless there
exists, on the record of
proceedings, a very cogent
reason to the contrary.”
Emphasis
Based on all
the above discussions, we
re-state and re-emphasize the
essential guidelines for
assessing traditional evidence
by the court as follows:-
1.
The Court must be slow in being
carried away by the impressive
manner in which a party narrated
his or her version of the
traditional evidence and how
coherent or methodical that is.
2.
The Court must pay particular
attention to undisputed acts of
overt acts of ownership and
possession on record in addition
to an examination of the events
and acts therein within living
memory which have been
established by evidence.
3.
Consider which of these
narratives is more probable by
the established acts of
ownership.
4.
Finally, the party whose
traditional evidence coupled
with established overt acts of
ownership and possession are
rendered more probable must
succeed unless there exists on
the record other valid reasons
to the contrary.
In applying
these guidelines to the instant
appeal, one clearly discernible
principle which we have to apply
are satisfactory contemporary
and undisturbed overt acts of
ownership and or possession
exercised over the subject
matter.
In this
respect, the evidence by the
Plaintiff and her witnesses,
coupled with the several overt
acts performed by her and the
settler farmers on the land over
a long period of time are too
notorious to be glossed over by
this court.
We
accordingly disregard the recent
acts of trespass which lie in
the acts of plunder, pillage,
thuggery and banditry exercised
by the Defendants and their
agents when they invaded the
disputed land to lay it to waste
in sand winning and other acts
of trespass.
In our
considered opinion, the evidence
of recent events on matters
within living memory and
testified to by the Plaintiff
and supported by her witnesses
and also partly by the
Defendants witnesses DW5, Selasi
Kofi Segbao and DW6 Amahia
Mawutor clearly show that
certainly, more credible weight
has to be given to the
Plaintiff’s traditional evidence
than the Defendants, which are
full of inconsistencies,
contradictions, and weaknesses
which cannot be glossed over.
See case of
Osei Yaw and Anr. v Domfeh
[1965] GLR 418,
where the Supreme Court held
that:-
“Where the
evidence of one party on an
issue in a suit corroborated by
witnesses of his opponent,
whilst that of his opponent on
the same issue stands
uncorroborated even by his own
witnesses,
a court ought not to accept the
uncorroborated version in
preference to the corroborated
one, unless for some good reason
(which must appear on the face
of the judgment) the court finds
the corroborated version
incredible or impossible.
“Emphasis
See also
Tsrifo v Dua VIII [1959] I GLR
63, at 64 -65
approved by the Supreme Court in
the above case.
See also
Asante v Bogyabi & Others,
[1966] GLR 232 which
applied in principle, hook, line
and sinker the principle of law
decided in Yaw v Domfeh
referred to supra.
In the case
of Abbey and Others v
Antwi V, [2010] SCGLR 17,
this court in a unanimous
decision held in holding 2 as
follows:-
“In an action
for declaration of title to
land, the Plaintiff must
prove, on the preponderance of
probabilities, acquisition
either by purchase or
traditional evidence, or clear
and positive acts of
unchallenged and sustained
possession or substantial user
of the disputed land”.
Emphasis
Applying the
above principles,
we are of
the firm view that the Plaintiff
and her witnesses have
demonstrably established hard
facts of overt acts of ownership
and possession coupled with
recent and contemporaneous acts
by their predecessors consistent
and in tandem with accepted
legal principles. Based on the
above and from our analysis of
the concurrent findings of fact
made by the two lower courts,
which we have analysed supra, we
have no hesitation in confirming
the decision of the Court of
Appeal.
EPILOGUE
In coming to
our conclusion, we have taken
into consideration the entire
record of appeal, which includes
the pleadings, viva voce
evidence, documentary evidence
and all the submissions of
learned counsel. We have also
considered the lame attempt by
the Defendants to introduce the
evidence of fraud on the part of
the plaintiff. We however
dismiss all these claims by the
defendants as we consider them
not having been adequately
proven.
In the
premises, the appeal herein by
the Defendants against the
judgment of the Court of Appeal
dated 12th May 2016
in favour of the Plaintiff fails
and is dismissed in limine. The
said judgment is thus affirmed
in it’s entirety.
V. J. M.
DOTSE
(JUSTICE OF
THE SUPREME COURT)
J.
ANSAH
(JUSTICE OF
THE SUPREME COURT)
S. K.
MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
A.
M. A DORDZIE (MRS.)
(JUSTICE OF
THE SUPREME COURT)
N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
THOMAS HUDGES
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
EKOW DADSON
FOR THE
PLAINTIFFS/RESPONDENT/RESPONDENT
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