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JUDGMENT
AMPIAH, J.S.C.:
This is an appeal from a
decision of the Court of Appeal
which affirmed the decision of
the High Court.
In his Writ of Summons, the
plaintiff/respondent
(hereinafter referred to as the
plaintiff) claimed against the
defendant/appellant (also
hereinafter referred to as the
defendant),
"(a) A declaration of title to
all that piece or parcel of land
known as and called MPREBUA
lying being and situate at
Breman Asikuma bounded by
TUROME, KYIDOMHENE's FAMILY
LAND, ASIKUMA BENIN and BREMAN
ASIKUMA OMANHENE's LAND which is
more particularly delineated by
the PLAN attached to the Writ of
Summons herein.
(b) Recovery of possession of
the said land.
(c) ¢5,000.00 (Five thousand
Cedis) damages for trespass for
wanton destruction of
plaintiff’s tenants’ farms and
the cultivation of new farms for
his exclusive enjoyment to the
detriment of the plaintiff.
(d) Perpetual injunction
restraining the defendant, his
agents, servants and/or workmen
from having anything to do with
the said land".
The defendant resisted the
plaintiff’s claim.
The parties gave evidence and
called witnesses in support of
their case. The trial court
gave judgment for the plaintiff.
The defendant appealed against
the decision of the Court of
Appeal which on 31st March, 1994
affirmed the decision of the
trial court and dismissed the
appeal. Concluding its judgment
the court said,
“(1) That the paramount or
allodial title is vested in the
plaintiff. The appeal therefore
fails, in so far as it relates
to paramount or allodial title.
(2) Usufructuary title in the
areas of disputed land
established to be occupied by
the defendant is decided in
favour of the defendant.
The appeal is allowed to this
extent but subject to the
defendant continuing to pay rent
as previously.
(3) The appeal in respect of
trespass and damages were not
argued before us and is
dismissed as abandoned.
(4) An order for injunction
granted by the High Court also
fails. The appeal against that
injunction succeeds and is
allowed.
We award costs of 100,000.00
Cedis to the
plaintiff/respondent. Both
Counsel agree on Mr. Benin, a
Cape Coast Licensed Surveyor to
carry out the order in the light
of the evidence and the plan
before the trial court. Each
side is to deposit 50,000.00
Cedis towards his preparation”.
On what basis did the Court of
Appeal make the final orders?
The trial judge had concluded
his judgement thus,
“… All told I do say that on the
balance of probabilities the
plaintiff should succeed on his
claim.
I therefore enter judgment for
the plaintiff”.
Apart from the claim for title,
the plaintiff asked also for
recovery of possession and
damages for trespass as well as
an order for injunction. Since
no damages were awarded against
the defendant, it was not clear
from the judgment whether any
trespass had been committed and
if so in what area? Which
portion of the area then was the
plaintiff entitled to recover?
Although the defendant did not
plead that his land was called
ABINA, subsequent evidence
showed that there was land by
that name even though this land
was included in the whole of the
plaintiff’s land. Evidence was
also led to show that the
defendant or his tenants had
occupied portions of the
defendant's ABINA LAND which as
stated before was included in
the MPREBUA LAND. Some of these
occupants had lived on the land
for some time. Were they paying
rents and if so how much?
From the evidence the trespass
complained of and which had
provoked this action was at a
small place which had originally
been occupied by one Egya Ata
and subsequently succeeded to by
Nsiah. The trial judge had not
made any findings of fact on
these occupations. He concluded
his judgment thus,
“…Fair enough, plaintiff led
traditional evidence likewise
defendant. There being none to
prefer I had to rely on recent
acts of possession and or
ownership. I have already said
that Exhibit 'A' a court
document speaks with the voice
of evidence. Exhibit ‘A’ says
permission to settle the case
was given on 12th March, 1980 to
report on 23rd March, 1980. And
on 25th March, 1980 settlement
was reported. The defendant
herein knew of Sakyi Appiah's
settlement. There is evidence
that he was present at the
settlement. He knows of Exhibit
'2'. He must have brought the
contents thereof to the notice
of the said Sakyi Appiah. If he
did not then whose fault.
At the end of the day Sakyi
Appiah gave judgment for the
plaintiff. Thus reliance on
Exhibit '2' by the defendant I
do say has no probative value
when one talks of recent acts of
possession and or ownership.
Exhibit '2' was made in 1961 and
Exhibit '4' made in 1980".
(emphasis supplied)
The judgment as could be seen,
left a lot of issues
undetermined. The trial judge
based his judgment on recent
acts of possession and/or
ownership. He relied on Exhibit
'A’, a settlement by one Sakyi
Appiah as estoppel. It was not
clear whether it was a
settlement or arbitration but
the Court of Appeal did not
accept Exhibit 'A' as creating
any estoppel of title in respect
of the land the subject-matter
of the present litigation.
There is no doubt however that
the evidence led by the
plaintiff to establish his title
to the land was preferable. The
plaintiff called his boundary
owners to testify. Both the
trial court and the Court of
Appeal accepted the evidence.
By whatever description or name
the defendant referred to his
land, it was clear that that
land was part of the whole land
of the plaintiff called MPREBUA.
The plaintiff was therefore
entitled to a declaration of
title.
The Court of Appeal vested the
plaintiff with the paramount or
allodial title in the land.
This, we believe flowed from the
fact that there was evidence of
long undisturbed occupation by
the defendant’s family or
tenants on the land. Since the
parties restricted their case to
the larger land in dispute, and
the trial judge had not made any
findings on who had occupied
which part of the land and for
how long, it became difficult to
identify the areas so occupied
exclusively with or without
permission from this plaintiff’s
family. This made the
declaration of a usufructuary
title in the defendant's
unsatisfactory. The order for a
fresh plan to identify these
areas was bound to create more
problems and start fresh
litigation. We feel therefore
that for a proper identification
of these areas, fresh evidence
is needed.
We would dismiss the appeal in
so far as it relates to title to
the land but order that the case
be sent back to the trial court
for fresh evidence to be taken
to identify the areas which
either by themselves or their
family members or tenants the
parties have occupied
undisturbed, and for how long.
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO, (MRS.)
JUSTICE OF THE SUPREME COURT
E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Ahenkorah for Appellants
Mr. Oduro for Respondents |
