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Evidence - Land -Probative value
of the evidence - Burden of
proof - The attitude of
the second appellate court to
findings of fact concurred in by
the intermediate appellate court
- Failure to lead any evidence
in support of the assertion -
Exercising overt acts
HEADNOTES
this appeal is within
a narrow compass and is related
to the probative value of the
evidence on which the judgment
of the two lower courts is
founded. As the intermediate
appellate court is in agreement
with the trial court on the
findings of fact, our task is to
determine if on all the evidence
contained in the record of
appeal before us, the decision
of the learned justices is
supported by the effect of the
evidence. Restating this, we are
to discern from the evidence
whether placing the case of the
plaintiff against that offered
by the defendant within the
context of the controversy
herein renders his version more
likely to be true;
HELD
We cannot have regard
to the judgment without the
record of proceedings on which
it is based; to do so will be a
departure from the settled
practice of the court in
ascertaining from a previous
case the reasons for the court’s
decision. Accordingly, the
learned justices of the Court of
Appeal came to the right
conclusion on the admitted
evidence when they agreed with
the trial court on the issues of
fact on which the action herein
turned. For the above reasons,
the decision of the learned
justices of the Court of Appeal,
which affirmed the findings of
the trial court was a proper
exercise of their discretion. In
view of the fact that the
decision on appeal to us is the
only view of the facts that the
lower courts could have reached
on the admissible evidence, it
cannot be said to suffer from
either perversion or
unreasonableness to warrant our
intervention. Consequently, the
onslaught on the decision the
subject matter of this appeal is
wholly without merit and is
accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, NRCD
323
CASES REFERRED TO IN JUDGMENT
Achoro v Akanfela
[1996-97] SCGLR 209
African Development
Co Ltd v CEPS
[2011] 2 SCGLR 955, 964
Effua Amissah v Effua
Krabbah in case number 1356/31/
SF No 4
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC: -
COUNSEL
J. E. K. ABEKAH FOR
THE
PLAINTIFF/RESPONDENT/RESPONDENT.
C. OWUSU-ANKOMAH FOR
THE
DEFENDANT/APPELLANT/APPELLANT
GBADEGBE, JSC:-
The question for our decision in
this appeal is within a narrow
compass and is related to the
probative value of the evidence
on which the judgment of the two
lower courts is founded. As the
intermediate appellate court is
in agreement with the trial
court on the findings of fact,
our task is to determine if on
all the evidence contained in
the record of appeal before us,
the decision of the learned
justices is supported by the
effect of the evidence.
Restating this, we are to
discern from the evidence
whether placing the case of the
plaintiff against that offered
by the defendant within the
context of the controversy
herein renders his version more
likely to be true; I think this
is the essence of the evidential
requirements contained in
sections 10-12 of the Evidence
Act, NRCD 323 regarding the
burden of proof. The attitude of
the second appellate court to
findings of fact concurred in by
the intermediate appellate court
has been laid down in the case
of Achoro v Akanfela
[1996-97] SCGLR 209 and applied
in a collection of cases, the
essence of which is that this
court may only depart from such
findings if they are proved to
be perverse or unreasonable. In
this regard, to succeed, the
appellant must demonstrate that
there was some error or blunder
in the manner that the lower
courts handled the resolution of
questions of fact such as to
have had the ends of justice not
well served.
Turning to the evidence placed
before the lower courts, there
is no conflict of opinion that
it was in its nature traditional
and as it was not based on
writings contained in documents
but related by way of oral
history, the narration of both
parties suffered from
inconsistencies but as has been
stated in several judgments
regarding the attitude of courts
to such evidence, we are not to
require proof by mathematical
precision and it suffices if
having regard to acts of
recency, a particular view of
the facts is more probable than
the other.
After patiently scrutinizing the
record of appeal before us and
attending to the written briefs
submitted to us by the parties,
we have come to the conclusion
that the view of the facts
accepted by the two lower courts
is sufficiently derived from the
admitted evidence and that
contrary to the considerable
submissions by the defendant
directed at overturning the
findings, the plaintiff’s case
had greater probative value than
that offered by the defendants
not only for the very clear
reasons provided in the judgment
with which we are concerned in
these proceedings but also for
reasons such as the failure of
the defendant to lead any
evidence in support of the
assertion contained in paragraph
10 of the statement of defence
by which it was averred that
members of his family had
exercised various overt acts of
ownership related to the
disputed land. Although in the
said pleading, reference was
made to the plaintiff’s family
as well, we think that on all
the evidence, the exercise by
the plaintiff’s family of
substantial rights sin relation
to the land as was found by the
tribunal of fact coupled with
the fact of the defendants
receiving tolls from them has
the tendency of compelling us to
the opinion that the allegation
of grants to other subjects of
the stool is untrue. Further,
by section 17 of the Evidence
Act, NRCD 323, the incidence of
the legal burden on those grants
was borne by the defendants, and
their failure to lead any such
evidence rendered their
assertion not likely to be true.
Section 17 of the Evidence Act
provides:
“(1) Except as
otherwise provided by law, the
burden of producing evidence of
a particular fact is on the
party against whom a finding on
that fact would be required in
the absence of further proof..”
As the defendants have failed to
lead any evidence in proof of
the crucial plea in paragraph 4
of their statement of defence,
by the operation of the rules of
evidence, they must suffer the
consequences of the risk of
non-persuasion within sections
11 and 12 of the Evidence Act,
the effect of which is that the
existence of the facts on which
the plaintiff’s case is grounded
is more probable than that of
their adversaries.
In contradistinction to the
above, the defendants accepted
the fact that the plaintiffs
have been in possession of the
land and exercising overt acts
thereon including the erection
of buildings and cultivation of
cash and economic crops on the
land. Also of significance to
the case of the rival claimants
regarding who has a better right
to the immediate occupancy of
the land, the defendant admitted
that when they entered a portion
of the disputed land occupied by
members of the plaintiff’s
family and felled palm tress,
they paid for the value of their
unlawful acts. This piece of
evidence coming from the
defendants reinforces the
plaintiff’s right to the land;
the question that arises from
this is why should a person who
claims to be the owner of the
disputed land be compensating
the plaintiff? The answer is not
too difficult to find from our
customary land tenure system and
it is that in such
circumstances, the plaintiff
being a subject of the stool
holds the possessory right
whiles the defendant holds the
nominal allodial title to the
land. The holder of the
possessory right called the
usufruct cannot be interfered
with in his possession of the
land even by the holder of the
allodial title. In our view,
this conclusion is sufficient to
dispose of the task with which
we are faced in this appeal.
But that is not the end of the
matter; there is the issue of
the conduct of both parties by
which the defendant’s family
received tolls from the
plaintiff’s family related to
the latter’s possession of
portions of the disputed land.
From the evidence, the parties
regulated their rights to the
land as such for a considerable
period. Such conduct triggers a
presumption of law under section
26 of the Evidence Act in the
following words:
“Except as is provided by
law, including a rule of equity,
when a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest. “
See: African Development Co
Ltd v CEPS [2011] 2 SCGLR
955, 964
The effect of the said estoppel
which is mutual in character is
that both parties have for a
considerable period acknowledged
the interest of each other in
relation to the land. While the
defendant acknowledged the
plaintiff’s occupation of the
land, the plaintiff also
acknowledged the defendant’s
allodial title to the land. In
our opinion, this is in accord
with our customary land holding
concepts namely the allodial
title and the usufructuary right
to the land. In the
circumstances, by section 24 of
the Evidence Act, NRCD 323, we
are precluded from considering
any evidence to the contrary of
the presumed fact that arises
from their mutual acknowledgment
of their respective rights to
the disputed land. Therefore,
the invitation pressed on us by
the defendant in his written
briefs submitted to us, which
has the effect of inviting us to
consider a contrary view of the
facts in line with the previous
decision of the Privy Council in
the case of Effua Amissah v
Effua Krabbah in case number
1356/31/ SF No 4 is rejected.
That aside, we cannot have
regard to the judgment without
the record of proceedings on
which it is based; to do so will
be a departure from the settled
practice of the court in
ascertaining from a previous
case the reasons for the court’s
decision. Accordingly, the
learned justices of the Court of
Appeal came to the right
conclusion on the admitted
evidence when they agreed with
the trial court on the issues of
fact on which the action herein
turned.
For the above reasons, the
decision of the learned justices
of the Court of Appeal, which
affirmed the findings of the
trial court was a proper
exercise of their discretion. In
view of the fact that the
decision on appeal to us is the
only view of the facts that the
lower courts could have reached
on the admissible evidence, it
cannot be said to suffer from
either perversion or
unreasonableness to warrant our
intervention. Consequently, the
onslaught on the decision the
subject matter of this appeal is
wholly without merit and is
accordingly dismissed.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
J. E. K. ABEKAH FOR
THE
PLAINTIFF/RESPONDENT/RESPONDENT.
C. OWUSU-ANKOMAH FOR
THE
DEFENDANT/APPELLANT/APPELLANT
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