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28 JUNE 1995
Evidence – Witness – Expert –
Witness professing expertise
must satisfy court of professed
expertise – Circumstances in
which testimony of unqualified
witness admissible – Evidence
Decree 1975 (NRCD 323) s 67(1).
At the hearing of an
interpleader suit in the High
Court a Chief Technologist of
the Lands Department testified
in response to an order of the
court directing the Chief Lands
Officer to conduct the
superimposition of a conveyance
on a plan. The court rejected
the testimony of the witness on
the ground that he was an
unqualified surveyor and
preferred a plan tendered by a
qualified surveyor called by the
plaintiff. On appeal to the
Court of Appeal the defendant
contended that the trial judge
wrongfully based his judgment
solely on the evidence of the
plaintiff’s surveyor.
Held,
a witness who professed
expertise in a field ought to
satisfy the court under section
67(1) of the Evidence Decree
1975 (NRCD 323) of such
expertise. A court witness
called as an expert must equally
be qualified. Had the Chief
Technologist effected the
superimposition as ordered, it
would not have mattered whether
he qualified as a surveyor.
However he went beyond the court
order, surveyed the land afresh
and condemned plaintiff’s plan
as inaccurate although he
neither claimed nor established
competence or experience as a
surveyor. The trial judge’s
preference for the testimony of
the plaintiff’s witness, a
qualified surveyor, was
justified.
APPEAL against the judgment of
the High Court to the Court of
Appeal.
E D Kom
for the appellant.
Nana Asibey
for the respondent.
FORSTER JA.
In consolidated suits nos LT
21/64 and LT 126/65, Abban J
gave judgment for the plaintiff,
Paul Narkoli Shardey, the
respondent in the present appeal
and dismissed the case of
Asafoatsenguah Adamtey. In both
suits the plaintiff claimed
declaration of title to a piece
of land at Akutunya, in Somanya,
recovery of possession and
perpetual injunction. The
present appeal arises from an
action which was a sequel to the
judgment in the consolidated
suits. The
plaintiff-claimant-appellant
(hereinafter called the
“appellant”) is the son of
Asafoatsengua Banahene, the
defendant and co-defendant
respectively in suits nos LT
21/64 and LT 126/65 in which
said suits Banahene was the
losing party. The appellant had
employed John Amartey, the
defendant in suit No LT 126/65,
to erect a building on a portion
of the land, which Abban J by
his judgment in the suit, found
to have been trespassed on by
Banahene.
When the judgment-creditor, Paul
Narkoli Shardey, the respondent
herein, in execution of the
judgment sought to take
possession of the house
constructed on the trespassed
land and owned by the appellant,
the appellant brought an
interpleader action in the High
Court Accra against the
respondent. He claimed title to
the said house No 230. The
respondent having disputed the
appellant’s claim, the court
ordered that pleadings be filed
by the parties. The issues for
trial as per the summons for
directions were:
(i) Whether the land on which
the house was erected was the
property of the
plaintiff-claimant or the
property of the
judgment-creditor-defendant,
Shardey.
(ii) Whether the
plaintiff-claimant was the
grantee of Banahene, the losing
party in the two consolidated
suits; and
(iii) Whether the
plaintiff-claimant was estopped
by the judgment in the
consolidated suits from denying
and disputing the title of the
judgment-creditor-defendant.
On 11 December 1987, Osei-Hwere
JA sitting as an additional High
Court judge entered judgment for
the respondent and dismissed the
appellant’s action. It is from
that decision that the appellant
has appealed to the Court of
Appeal. In his grounds of appeal
the appellant contends that:
(1) The judgment is against the
weight of evidence.
(2) That the trial judge erred
in holding that the building
fell within the land of the
respondent.
(3) The trial judge erred in
basing his judgment solely on
the evidence of the respondent’s
self-appointed surveyor.
The vital issue in this appeal
is whether the findings of the
trial judge that the house of
the appellant is on the land of
the respondent was supported by
the evidence before him. The
most material evidence in the
case was that of the witnesses
of the parties and the plans put
in evidence by the respective
parties.
As found by the trial judge,
exhibit 3 tendered by the
respondent correctly showed the
position of the appellant’s land
in relation to the boundary line
from the pillar GCGEP 20/30/3/3
to the palm tree. Having
reviewed the relative positions
of the two properties as shown
in exhibit 3 and exhibit C5, the
judge concluded:
“I am satisfied that the area of
encroachment of the claimant’s
house into the judgment
creditor’s land is as shown in
exhibit 3. According to the
evidence of DW2, which I accept
the total acreage of the
plaintiff’s building with fence
around is 0.12 acre and of this
0.11 acre lies in the
defendant’s land”.
The appellant questions the
judge’s reliance on the evidence
of DW2, the respondent’s
witness. The appellant sought to
rely on the evidence of the
court’s witness, CW1. The two
witnesses were the most material
witnesses in the case. It was by
their evidence that the court
could decide whether the
appellant’s building fell either
wholly or partly into the land
adjudged in the consolidated
suit to be owned by the
respondent. The evidence of CW1
and DW2 was in the nature of
expert testimony, either party
relying on the probative value
of the testimony of their
respective witnesses.
Of the competency of CW1, John
Dey, on which his evidence must
stand or fail the trial judge
commented: “John Dey himself not
being a qualified surveyor was
not competent to conduct another
survey”. The judge therefore
discounted his evidence and
preferred the evidence of DW2
called by the respondent. I
entirely agree with the view of
the trial judge. An expert
called by a court as its witness
must be qualified in the special
discipline to which his evidence
is relevant.
A witness who professes any
expertise must satisfy the court
that he is an expert on the
subject to which his testimony
relates by reason of his special
skill, experience or training,
as provided in section 67(1) of
the Evidence Decree 1975 (NRCD
323). A court witness called as
an expert must be as equally
qualified.
Mr Dey, CW1 described himself as
a Chief Technologist of the
Lands Department. He appeared as
a witness in consequence of the
order of the court directed to
the Chief Lands Officer and
requiring him to instruct a
subordinate officer to
superimpose the site plan
attached to appellant’s
conveyance on another plan
(exhibit 2) which incidentally
was the plan used in the
consolidated suit. Had CW1
confined himself to the
superimposition of the plan as
ordered, and no more the
probabilities are that he might
not have fallen into error, for
his competence as an expert - a
surveyor - would not have
mattered in the case. CW1
however went beyond the scope of
the court’s directives and
purported to survey afresh the
land in dispute, and condemned
exhibit 2 as inaccurate and
being full of errors. CW1, on
his own showing did not claim
nor prove any competence by
reason of any special skills,
training or experience so as to
have qualified him as a surveyor
and, ipso facto, an expert in
that discipline.
The trial judge’s preference for
the evidence of DW2, Mr Francis
Owusu Amrado, was amply
justified by his qualification.
He was a qualified surveyor. He
had been in the employment of
the Survey Department since 1968
when he graduated from the
University of Science and
Technology, Kumasi. He had since
his graduation pursued
post-graduate studies in
photogrametry at the ECA Centre
in Nigeria. He was thus an
immensely qualified surveyor and
thereby most competent to give
evidence in a matter that called
for expert testimony in that
field. In his evidence, DW2 said
that exhibit C was unreliable
being “a compilation of a plan
from an unlicensed surveyor in
the Lands Department.”
Exhibit C was prepared and
tendered by CW1. DW2 had
surveyed the disputed land, and
prepared a plan which he
tendered in evidence as exhibit
3. On it he had demarcated the
boundary between the
respondent’s land and that of
Banahene, the losing party in
the consolidated suit and the
grantor of the appellant. In his
evidence he was emphatic that of
the 0.12 acre of the appellant’s
land 0.11 acre lay within the
respondent’s land.
The trial judge, having
evaluated the evidence before
him, accepted the version of DW2
as to the position of the
appellant’s land relative to
that of the respondent. He
preferred the evidence of DW2 to
that of CW1, whose competence as
a surveyor was, to say the
least, most suspect. His
evidence was therefore
negligible in weight. In my
considered opinion, the trial
judge was right in dismissing
the claim of the appellant.
For these reasons I would
dismiss the appeal and affirm
the judgment of the High Court.
SAPONG JA.
Paul Narkoli Shardey was given
judgment against Asafoatsengua
Adamtey Banahene by Abban J on
30 June 1971 in the consolidated
land transfer suit No 21/64 and
suit No L 126/65 reported in
[1972] 2 GLR 380. When Shardey
the judgment creditor sought to
execute the judgment Kwame
Debrah interpleaded. The
interpleader suit went before
Osei-Hwere JA, sitting as
Additional High Court Judge.
Kwame Debrah the claimant was
the plaintiff and Shardey the
judgment creditor was the
defendant. Abban J found that
out of a large tract of land the
property of the Shardey family
for which title had been decreed
a portion was carved out for the
defendant; and that portion he
described as:
“all that piece or parcel of
land bounded on the south by the
two lines coloured red and green
respectively, commencing from
the Accra motor road towards the
west and up to the point where
there is a pillar marked GCGER
20/30. Then turning northwards
along the line hatched violet to
the palm trees, then to the
right and passing through the
property of Kyeiwakye to join
the boundary line coloured red
and still following this red
boundary to the Accra motor road
and along this road back to the
south to join once again, the
two boundary lines coloured red
and green respectively.”
The plaintiff testified before
Osei-Hwere JA: (1) that he had
put up a building on the land
being claimed by the
judgment-creditor; (2) that the
said land on which the building
was erected was his property;
(3) that the judgment creditor
was claiming a portion of that
land. He said he was the stepson
of Banahene and that Banahene
granted the land on which he
built. He did say Abban J in his
judgment found that the
plaintiff’s elders made a grant
of a portion of their land to
the elders of Asafoatse Banahene
(described in the judgment as a
co-defendant and further that
the area of trespass in both
suits (which was the same) was
located outside the portion of
the land granted to the elders
of the co-defendant. He also
found that the co-defendant and
his son Debrah (ie, the
appellant herein) trespassed on
to the land.
Osei-Hwere JA found for the
defendant. In doing so he called
for Abban’s judgment, as that
judgment formed the basis of the
interpleader suit before him but
none tendered it. Accordingly
Osei-Hwere dismissed the
claimant’s claim. It is against
this judgment that the appellant
is in this court seeking that
the said judgment be set aside
and judgment entered in his
favour.
Three grounds of appeal were
listed. Mr Kom for the appellant
chose to argue all the three
grounds together.
Ground 1. The judgment is
against the weight of evidence.
Ground 2. The trial judge erred
in holding that the greater part
of the building falls within the
land of the respondent.
Ground 3. The trial judge erred
in basing his judgment solely on
the evidence of the respondents’
self-appointed surveyor.
He submits that the issue is to
determine the appellants’ house
in relation to the execution
levied. The trial judge did say
the important determinants to
locate the proper position of
the claimant’s building were the
pillar and the palm tree named
in the judgment of Abban. And in
doing this he relied solely on
the evidence of DW2. For he
said: “I accept the evidence of
DW2.” And according to DW2 the
total acreage of the plaintiff’s
building with the fence around
it is 0.12 acre and of this 0.11
acre is in the defendant’s land.
The reasons the judge gave for
accepting DW2’s evidence I see
nothing wrong with. The fact
that a judge believes the
evidence of one against another
does not amount to any wrong.
The judge has to evaluate the
evidence before him and prefer
one to the other. And this was
what he did.
This interpleader suit was filed
in the registry of the High
Court Accra on 18 July 1984.
Judgment was delivered on 11
December 1987. Whilst this suit
was pending in the High Court
Banahene filed a suit at the
circuit court against Shardey
claiming declaration of title to
a piece or parcel of land
situate at Somanya, ¢5 million
damages for trespass and
perpetual injunction. The
defendant also counterclaimed
for the same reliefs but lost.
He appealed to the Court of
Appeal. Judgment was given
against him on 7 May 1993 in
Civil Appeal No 62/90. In its
judgment the Court of Appeal
referred to Abban’s judgment,
recited the portion carved for
the respondent’s elders and
finally dismissed the appeal.
Mr Kom refers to CA 62/90 to
contend that the disputed land
is the same and that the correct
position of the palm tree in
Abban’s judgment can be
determined by the judgment in CA
62/90. The appellant in the
instant appeal is the grantee of
Banahene. The very land in
dispute has already been
determined by Abban J to belong
to Shardey’s family. This
judgment has not been set aside
and it is binding. Why then did
Banahene sue for declaration of
title at the circuit court in
respect of the said land? I do
not know. There is a valid,
subsisting judgment. The land of
the Shardey family and that of
Banahene family were clearly
spelt out by the judgment of
Abban J from which there has
been no appeal.
Nana Asibey says that the
judgment of CA 62/90 has no
relevance to the interpleader
suit. The land in question is
different from the land in
CA62/90. I agree.
Mr Kom canvassed the point that
a surveyor from Survey
Department Koforidua should be
ordered by this court to find
from the judgment of CA 62/90
relating to the stump of the
palm tree to find out whether
the appellant’s building is in
the respondent’s land. I do not
think this is necessary. Abban’s
judgment took care of this. And
it did say emphatically that the
building operation of the land
outside the land carved for them
constituted trespass. This was a
finding of fact. There is no
appeal against it. In the result
I do dismiss the appeal.
LUTTERODT JA.
I agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner |
