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JUDGMENT
TWUMASI, J.A:
This is an appeal from
the judgment of the High Court, Sekondi; delivered on 4
April 2001. I intend to make references to the parties
as they were at the trial court. The plaintiff by name
Yaa Kwasi sued Arhin Davis as 1st defendant jointly with
Nortey as 2nd defendant for a declaration of title to a
certain piece of land and other ancillary reliefs. The
1st defendant, asserting his right to the ownership of
the land had leased a portion of it to the 2nd defendant
for consideration. As soon as this transaction came to
the notice of the plaintiff, he spared no time to
institute the legal action against the two defendants
claiming that the land was his bona fide property and
the defendants had wrongfully trespassed upon it. The
plaintiff sued in the capacity of the Head of Basia
Aryah’s branch of the Ebiradze Family of Anagye, a
suburb of Sekondi and he described the land as a large
part and parcel of land situate at Anagye and bounded by
the lands of Ebiradze Family of Fijai, Nsona Family of
Anagye, then Norwen’s Ebiradze Family of Anagye (see
the indorsement on the Writ of Summons and paragraph 2
of the Statement of Claim). The plaintiff contented by
his pleadings that his family had been owners of the
land from time immemorial and had exercised various acts
of ownership including grants of portions of the land to
non-family members. The plaintiff, butterweed his case
by a plea of estoppel per rem judicatam by averring that
in an arbitration before the Omanhene of the Ahanta
Traditional Area he was adjudged owner of the land as
against the 1st defendant. The case of the 1st defendant
for the other part was that his grandfather by the name
L.T.C, Davis, a Sierra Leonean who was domiciled in
Ghana and lived in Sekondi purchased the disputed land
from the plaintiff’s ancestress called Arabah Ayah at an
auction sale and that the property had devolved upon him
by way of inheritance, that since the said purchase his
family had exercised acts of ownership over the land.
In his reply filed on the 2 October 1992, the plaintiff
denied the averments in the statement of defence and
joined issue on all est I forget, I should mention that
the 1st defendant denied that there was a proper
arbitration, although he admitted that the plaintiff
lodged a complaint before the Omanhene of the Ahanta
Traditional Area. But the main case put up by the 1st
defendant was that the plaintiff was caught by estoppel
per rem judicatam. The 1st defendant’s plea was that he
could rely for the success of his plea of estoppel upon
a judgment given in favour of his predecessors as
against the predecessor of the plaintiff in respect of
the disputed land. The case he averred to in paragraph 6
of his statement of Defence was a judgment of the
Supreme Court of the Gold Coast. Western Province,
Seconded held before His Worship H.C.W Grimshaw Esq., on
the 10th December 1912, in Re LTC Davis Appellant vrs.
Norweh-Respondent, Appeal from the decision of the
Native Tribunal of Dutch Sekondi. In particular the most
important case put up by the 1st defendant was that in
that lawsuit the said Baya Ayah, the ancestress of the
Plaintiff, gave evidence to the effect that she had sold
the land in dispute to a predecessor of the 1st
defendant.
The judgment pleaded by
the 1st defendant did not therefore purport to establish
only a cause of action estoppel, but also an issue
estoppel because the statement attributed to Baya Ayah,
if proved, constituted admissible hearsay, a statement
made against proprietary interest recognised and as an
exception to the hearsay rule under section 117 – 118 of
the Evidence Decree 1975 (NRCD 373). Such admissions
made by predecessors bind their descendants or those who
claim through them.
After pleadings had
closed and the trial had advanced to the stage where the
plaintiff had closed his case, Ebusuapanin Kwamina Badu
applied to the court to permit him join as a party. In a
motion paper filed on the 8 October 1993, the applicant
prayed that he be joined as co-plaintiff. He deposed to
an affidavit in support of the motion that he was the
Head of Family of the Ntankorful branch of the Royal
Abrashiem Ebiradze family, owners of all Ntankorful
land. He deposed further that it had come to his notice
that a land dispute which covered part of Ntankorful
lands had arisen before the Court and he felt compelled
to join the suit. In paragraph 4 of his affidavit he
deposed to the fact that he had never made any grant of
any Ntankorful land to either the plaintiff or the
defendants. The trial judge granted the application but
the applicant became the 3rd defendant rather than
co-plaintiff. By paragraph 3 of a Statement of Defence
filed on his behalf the 3rd defendant claimed that the
land referred to by the plaintiff in paragraph 2 of the
Statement of Claim belonged not to Basia Ayah’s family
by to the Abrashiem Ebiradze family of which he was the
head.
The 3rd defendant
averred the following in paragraph 4 of his Statement of
Defence.
“(4) The 3rd defendant
avers that there are other judgments which estopp the
defendants such as inter alia Ltd Davis vrs. Norweh”.
It is interesting to
observe that during the trial, the 3rd defendant or
co-defendant as his counsel called him traced his root
of title to Basia Araba Ayah just as the plaintiff did.
A saying goes like this: “When two elephants fight in a
grassland it is the grass which suffers”. True, but in
the area of land litigation the contrary is true in the
sense that when two members of a family fight over a
portion of their family land, any purchaser of such land
has nothing to suffer from, provided he can prove the
purchase to the satisfaction of the Court. Predictably
enough, the trial Judge entered judgment for the 1st and
2nd defendants and dismissed the claims of the plaintiff
and the 3rd defendant. The letter two now appeal to this
Court to overturn the judgment. The plaintiff filed
original and additional grounds of appeal but he argued
the following:
ADDITIONAL GROUND (C)
The judgment itself is
a nullity since the trial judge did not give opportunity
to the plaintiff to call evidence to rebut the 3rd
defendant who joined the the action after close of the
case of the plaintiff.
ADDITIONAL GROUND (D)
The Learned trial Judge
erred in relying on exhibits 1 and 2, the admission of
which is on appeal (interlocutory appeal).
ADDITIONAL GROUND (F)
The learned trial Judge
erred in accepting the case of the 1st defendant when
the alleged certificate of purchase was not tendered,
and the extent of the land and the position of the land
were not shown.
ADDITIONAL GROUND (H)
The learned trial Judge
erred in holding that the plaintiff is estopped per rem
judicatam by the case of LTC Davis vrs. Norweh (1912)
when the plaintiff was not a party to the suit.
ADDITIONAL GROUND (A)
The learned trial Judge
failed in discharging the legal duty on him of giving
reasoned judgment.
ADDITIONAL GROUND (B)
The learned trial Judge
failed to make findings of fact.
ADDITIONAL GROUND (E)
The 1st defendant had
no capacity to claim the land from his own root of
title.
The grounds of appeal
filed by the 3rd defendant may be incorporated into
those filed by the plaintiff. Additional grounds 1, 2
and 4 and original ground 1(v) all focused attention on
Exhibit 1and 2 that is the judgment relied upon by the
1st defendant in proving estoppel. Again original ground
1(iv) and additional ground (3) stated that the trial
was a nullity because the 3rd defendant was not given an
opportunity to cross-examine the plaintiff and his
witnesses.
I wish to start with
the issues relating to estoppel. The 1st defendant
testified that the land in dispute belonged to his
grandfather by the name L.T.C Davis, a Sierra Leonean
who domiciled in the then Gold Coast and was dead,
survived by his three children including the 1st
defendant’s father S.L.S Davis who survived the rest.
When the said S.L.S Davis died the 1st defendant
inherited him and took the properties of the grandfather
that had devolved upon him through succession by the
male line as appertained to the inheritance law applied
to children borne of Sierra Leoneans in “Ghana. There
was an issue about the authenticity of the judgment
which the 1st defendant pleaded as estoppel against the
plaintiff.
I have carefully
examined the controversial exhibits 1 and 2 representing
the judgment and the plan of the land in respect of
which the judgment was given and I came to the firm
conclusion that the judgment was in respect of the land
in dispute and it accordingly operated as estoppel per
rem judicatam. The learned trial judge summed up the
position accurately at page 81 of the record of appeal
as follows:—
"The judgment dated
1912 is a suit between L.T.C Davis vrs. Norweh. The 1st
defendant has pleaded in paragraph 6 & 9 of his
statement of defence. I am convinced that the judgment
is a certified true copy of the suit which was heard in
1912. Again the plan was certified by the man who
prepared it (i.e Essien). The date he certified it was
1927. My understanding is that the plan was previously
made way before 1912 or after 1912 and a copy of the
plan was made and certified by one Andrew Essien in
1927. In my sound judgment these two documents are
relevant to the suit before this court. Accordingly the
documents will be admitted, they are to be marked as
Exhibit 1 for judgment and Exhibit 2 for the plan”.
The evidence of the
surveyor Andrew Essien appears at page 223 of the record
of appeal and it puts all doubts about the identity of
the land at rest. I did not in any way see the
tenability of the argument that the exhibits 1 and 2
contravened the requirements of section 146 of the
Evidence Decree 1975 (NRCD 323). From the surveyor’s
evidence it is quite clear that Araba Ayah sold the land
to the 1st defendant’s predecessor and the land was the
one in dispute, situate at Kotokobun. From the evidence
of the 1st defendant regarding the search that led him
to discover exhibits 1 and 2 and the Statement made by
the learned Judge on the said exhibit (see pages 223 and
228 of the record of appeal), I am fully satisfied with
the authenticity of the exhibits. Counsel for the 1st
defendant referred this court to passages in Halsburys
Laws of England 3rd Edition Vol. 15 paragraph 636 at
page 354 on the law on ancient documents. The law is
correctly stated but I would advise that section 146 of
our Evidence Decree (supra) adequately deals with the
point and it should be read along with the commentary
thereon to catch the true tenor of the legislation on
ancient documents.
Under section 146 of
the Evidence Decree (supra) “the document must be free
on its face from suspicion, must be from proper custody,
and be at least twenty (20) years old. The guarantee is
based on the experience that a document not shown to be
a fraud in 20 years in likely to be genuine. It is also
based on convenience, for it might be difficult to find
witnesses who could testify to its execution”. It seems
to me clear that exhibits 1 & 2 satisfy all these
criteria. Their authenticity is given a further boost by
the testimony of the 3rd defendant as underscored by his
answer to a question in cross–examination appearing at
p.150 of the record of appeal:
“Q. Can you tell the
Court how the disputed land came to be in the
possession of L.T.C Davis ?
A. The disputed land
was auctioned after Araba Aryah had filed notice of
Sale. L.T.C Davis was auctioneer. The land was sold to
L.T.C Davis”.
That the disputed land
was sold to his grandfather L.T.C Davis by Araba Aryah
has been the clarion claim of the 1st defendant right
from the inception of the litigation. The 3rd defendant
could have strengthened the 1st defendant’s case further
if the learned trial Judge had permitted him to tender
the judgment in the case titled Parker vrs. Arabah Aryah
in which Araba Aryah obtained Judgment. Last but not the
least Exhibit 3D1 tendered by the defendant and
appearing at page 231 of the record of appeal confirms
that there was in fact such a Judgment by His Worship
H.C.W Grimshaw. This exhibit 3D1 represents the Judgment
of the Full Court in the suit between L.C.T Davis vrs.
Norweh dated 18th November 1914. The registrar C.E.
Brew certifies it as the Judgment of the Court. It is
true, as Counsel for the 1st defendant concedes, that
Arabah Aryah was not a party to the suit but the
plaintiff claims through her and so does the 3rd
defendant. It was also not in controversy (see PW1’s
evidence) that Madam Araba Aryah gave evidence in L.T.C.
Davis v. Norweh suit that she had sold part of the land
to L.T.C Davis. This as was rightly submitted by Counsel
for the 1st defendant, was a statement binding on all
her descendants or those claiming through her, being a
declaration against her proprietary interest.
The issue of estoppel
was therefore established against the 1st and 3rd
defendants. On the question of the 1st defendant’s
capacity, it is sufficient to refer to the case of Davis
v. Randull (1963) 1 GLR 382 holding (2) cited by Counsel
for the 1st defendant in his statement of case, a
judgment of the Supreme Court of the First Republic of
Ghana, that the children of a Sierra Leonean constituted
his family for the purposes of succession to his
property acquired in Ghana, the lex situs being the
applicable law to landed property as in the instant
case. Consequently the 1st defendant on the evidence was
clothed with capacity to litigate title to the disputed
land. It was contended by Counsel for the plaintiff that
failure to tender the certificate of purchase of the
land was fatal. I disagree. No miscarriage of justice
ever occurred thereby because in exhibit 1, Grimshaw
stated clearly that such certificate had been issued to
the purchaser following the auction sale of the disputed
land. The ready inference is that the certificate was
tendered before Grimshaw and that should settle all
lingering doubts about the veracity of the 1st
defendant’s story. Another suit which also established
estoppel was the suit between Opanin Ngyah Asafuah, an
elder of the plaintiff’s family and L.T.F Sagoe which
occurred during the life time of L.T.C Davis,
grandfather of the 1st defendant. (see Exhibit 3 and 3A
). All the matters that I have endeavoured to discuss
satisfy me that the learned trial judge was right in the
conclusions of law and fact that he made. Consequently I
hold that there is no merit whatsoever in the grounds of
appeal filed by both the plaintiff and the 3rd
defendant.
I wish however to say
something about the contention by the two appellants
that they were not given opportunity to state their
cases further after the joinder of the 3rd defendant.
The plaintiff and the 3rd defendant did not give this
court any indication of what further evidence they had
wanted to adduce which was so material to their case
that its inclusion might have affected the decision of
the trial Court or this Court and that a substantial
miscarriage of justice had been thereby occasioned. In
my view the real issue in the suit was adequately tried
and determined and I do not see on what ground the trial
could be said to be a nullity as contended by the
plaintiff and the 3rd defendant. Grounds (A) and (B)
were unmeritorious and they fail. In the result the
appeals are dismissed.
P. K. TWUMASI
JUSTICE OF APPEAL.
WOOD, JA:
I agree.
AKOTO-BAMFO, JA:
I also agree.
COUNSEL:
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