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J U D G M E N T
LARTEY, J.S.C.:
By his writ of summons the
plaintiff appellant (hereinafter
referred to as the Plaintiff)
sued the first and second
defendants/respondents
(hereinafter also simply
referred to as the defendants)
claiming:
“(a) Declaration of title
to a large part and parcel of
land situate at Anagye and
bounded by the lands of Ebiradze
family of Fijae, Nsona family of
Anagye then Noweh’s Ebiradze
family of Anagye.
(b) An order quashing and
(sic) purported Lease that had
been made to lease part of the
land without the consent and
concurrence of the Plaintiff’s
family.
(c ) Damages for trespass
(d) An order of perpetual
injunction restraining the
defendants, their agents,
servants etc. from having any
dealing with the land”.
The plaintiff who
described himself as the head of
Basia Aya’s Ebiradze Family of
Anagye pleaded that his family
had for a long time been
recognized as owners of a large
piece and parcel of land situate
at Anagye which shares boundary
with the lands of Ebiradge
family of Fijai, Nsona family of
Anagye and Nowah’s Ebiradge
family of Anagye, and as owners
in possession various persons
have been granted farming rights
over parts of the land. It was
when the plaintiff’s family
turned the site into a layout
for residential purposes that
the first defendant resisted the
action and made a grant of a
portion to the second
defendant. The plaintiff
further averred that his family
lodged a complaint with
Ahantahen at Busua who went into
the matter by way of an
arbitration after which the
first defendant was found
liable.
In his amended
statement of defence the
defendant’s admitted that the
plaintiff lodged a complaint
with Ahantahen at Busua but
denied that there was any proper
arbitration because the
proceedings were not an
arbitration and cannot ground an
estoppel. On the contrary the
purpose of the complaint was to
attempt an amicable settlement
of the differences between the
parties. The defendants averred
that the ownership of the land
had been determined in a
judgment delivered on 10
December, 1912 by His Worship
H.C.W. Grimshaw. In that case
the plaintiff’s ancestor called
Araba Aryeh testified and
confirmed the sale of the land
by auction. That being the case
the plaintiff is estopped from
laying claim to the disputed
land. The defendants again
relied on another case in which
one L.T.F. Sagoe successfully
sued one Ngya Assafuah a
predecessor of the plaintiff in
the District Court, Sekondi in
1970. The defendants further
averred that the first
defendant’s father also
exercised rights of ownership
over the land, and after his
death the land devolved on the
first defendant who had been
making grants to several persons
including the second defendant.
It was part of the case for the
defendants that the first
defendant started farming on the
land in 1964 and that he made
farms in which he grew coconuts,
oil palm, citrus, mango and
pear.
The co-defendant,
variously also described as
third defendant, on 8th
October, 1993 filed a motion for
joinder as co-plaintiff in this
suit. That was almost sixteen
months from the date of issuance
of the writ of summons. The
plaintiff on 11th
October, 1993 promptly filed his
affidavit in which he indicated
his intention to oppose the
co-defendant’s application for
joinder. Taking a cue from the
prospect of facing opposition by
the plaintiff, the co-defendant,
on 10th November,
1993, filed a similar
application for joinder, this
time as third defendant in this
action. I concede that the
grant or otherwise of an
application of this nature was
entirely at the discretion of
the trial High Court judge,
whose reason in granting the
application was “in order that
justice be done to all
parties”. Speaking for myself I
would have thought that refusing
the application would have been
a better option, especially
coming at a time when the
plaintiff had already closed his
case. And as can be gleaned
from the affidavit in support of
the application, the main issue
raised therein was the ownership
of the whole Ntankoful land,
including the land in dispute.
In my view that issue was
between the co-defendant and the
plaintiff which conveniently
could be left for its resolution
between the two. I am of the
opinion that the application for
joinder was a recipe for
confusion as can be demonstrated
by the co-defendant’s grounds of
appeal to the Court of Appeal
and subsequently to this court.
Be that as it may,
the co-defendant filed his
statement of defence in which he
denied that the plaintiff is the
head of family of Basia Aya’s
Ebiradge family; that there is
no family known as Basia Aya’s
Ebiradge family; since Basia Aya
was the great grand mother of
the co-defendant she belonged to
theAbrashiem Ebiradze family;
that the land described in the
plaintiff’s statement of claim
belongs to Abrashiem Ebiradge
family; that whatever act that
was done on the land in dispute
was done surreptitiously without
the consent and knowledge of the
co-defendant; that apart from
the cases cited by the
defendants, others like L.T.C.
Davies vrs. Noweh exist which
operate as estoppel against the
defendants. Upon the foregoing,
the co-defendant joined issues
with the other parties on their
pleadings.
The learned High
Court judge O. K. Sampson held
at the end of the trial as
follows:-
“The plaintiff herein failed to
discharge the onus of proof
incumbent upon him to establish
his title to the land in
dispute. Plaintiff’s action
fails and it is therefore
dismissed accordingly”.
And in the final
paragraph of what he claimed to
be the reasons for the judgment,
the learned judge said:
“And by way of an issue arising
out of the pleadings, the
plaintiff is estopped per ram
(sic) judicatam as well as the 3rd
defendant from claiming
ownership to the land in
dispute; hence the dismissal of
the plaintiff’s action herein”.
The plaintiff and
the co-defendant appealed from
that judgment to the Court of
Appeal. The judgment of the
Court of Appeal was delivered on
28 November, 2002. In the
opinion of the Court of Appeal
the learned trial judge was
right in the conclusion of law
and fact that he made, and
therefore there was no merit
whatsoever in the grounds of
appeal filed by both the
plaintiff and the co-defendant.
It had no difficulty in
dismissing the appeals.
Dissatisfied with
the decision of the Court of
Appeal both have appealed to
this court on a number of
grounds. But before dealing
with the specific grounds raised
in this appeal it may be useful
to comment briefly on the
reliefs claimed and the effect
they may have in evaluating the
evidence produced by the parties
in this suit. In the case of
NKYI XI v. KUMAH [1959]
G.L.R. 281, C.A. their Lordships
(coram: Korsah, C.J., Van Lare
J.A. and Ollennu J.A.) guided by
the principle stated by the
Judicial Committee of the Privy
Council in the judgment
delivered in KPONUGLO & ORS.
V. KODDADJA 2 W.A.C.A. 24)
observed at page 284 thereof as
follows:-
“Where in an action for trespass
a defendant, as in this case,
pleads ownership of the land
(i.e. that he has a better right
to possession of the land than
the plaintiff has) the
plaintiff’s title is put in
issue; and the plaintiff cannot
succeed unless he proves a right
to possession which is superior
to that of the defendant.
Consequently, in an action for
trespass, if it is proved that
the plaintiff has no title at
all to the land, and that the
defendant’s entry is upon
permission of the true owner,
the plaintiff’s claim must fail.
Again where in
addition to a claim for damages
for trespass the plaintiff
claims an injunction, title is
automatically put in issue,
because that claim postulates
that the plaintiff is either the
owner of the land in dispute, or
had (prior to the trespass
complained of) exclusive
possession of it”.
Thus what the
foregoing proposition seeks to
convey is that since the
plaintiff in this appeal sued
for not only a declaration of
title but also damages for
trespass and an order for
perpetual injunction, he assumed
that onerous burden of proof by
the preponderance of the
probabilities as required under
sections 11 and 12 of the
Evidence Decree, 1975 (N.R.C.D.
323), or else risk the prospect
of losing his case. See also
ADWUBENG v. DOMFEH [1996-97]
S.C.G.L.R. 660 on the burden of
proof in all civil causes
including title to land.
Now the plaintiff in
his introductory remarks as per
his statement of case in this
appeal indicated that the issues
in this appeal are the same as
those raised at the Court of
Appeal for which written
submission were filed. Counsel
for the plaintiff offered to
argue his original ground ‘C”
and the additional ground ‘F’
together. However, whilst his
original ground ‘C’ conforms
exactly with what was quoted in
the statement of case, the
additional ground ‘F’ as appears
in the statement of case is
quite different from what
appears at page 217A of the
record of appeal. The statement
of case quotes ground ‘C’ as
follows:-
“The Court of Appeal erred in
relying on estoppel when the
defendant respondent who traced
his writ of tittle (sic) from
Basia Aya has not shown the
identify of the land in the
suit, and in this suit, when the
appellant had led evidence that
the land being claimed had
always been under their control
and management”.
The two versions of the
additional ground ‘F’ also state
as follows:-
“The Court of Appeal erred in
relying on a judgment between
L.T.C. Davies vrs. Norweh, when
the plaintiff is not related to
the said Norweh”
“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”.
Inspite of the apparent
confusion surrounding the
plaintiff’s grounds of appeal I
will endeavour to examine them
against the background of
exhibits 1 and 2 which
constitute the main target for
the onslaught by the
appellants. Admittedly the
Court of Appeal relied on
exhibits 1 and 2 not so much as
creating an estoppel against the
plaintiff but because Araba
Aryeh’s evidence in the
proceedings before H.C.W.
Grimshaw culminating in the
judgment of 10 December, 1912,
constituted on admission against
her own interest and those who
became her successors in title,
including the plaintiff herein.
That point is quite significant
in exhibit 1, and no attempt
should be made to gloss over it
or whittle down its effect.
Indeed the Court of Appeal never
held that the plaintiff was
related to Norweh in the said
exhibit. On the issue of
estoppel all that the Court of
Appeal said about it is captured
in the following extract of its
judgment:
“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 recognized as an
exception to the hearsay rule
under section 117-118 of the
Evidence Decree 1975 (NRCD
323). Such admissions made by
predecessors bind their
descendants or those who claim
through them”.
It was also part of
the contention of the plaintiff
that the first defendant, while
tracing his root of title from
Basia Aya, failed to show the
identity, the extent and
position of the land. It is
difficult to comprehend the
force of this argument coming as
it were from the plaintiff
because when the motion for
appointment of a surveyor was
filed by counsel for the
defendants, it was the same
plaintiff who by his affidavit
of 4 March, 1994 opposed same on
the ground that the issue in
controversy did not call for the
making of a plan. If the making
of a plan was not necessary in
the trial, why should he turn
round to accuse his opponents of
failure to identify the land in
dispute or show the extent and
position of it? By unwittingly
resisting the said application
the plaintiff failed to
acknowledge its effect to his
own detriment. He failed to
realize that as the plaintiff
claiming in a land litigation it
was he who bore the primary
responsibility or the burden of
producing evidence on the issue
of a surveyor’s plan to
strengthen his case. If this
had been done the entire land he
claims to own to the exclusion
of the defendants would have
been clear on the evidence. I
do not appreciate the legal or
moral basis for the plaintiff’s
attack against the defendants on
the issue of the extent of the
disputed land.
The next ground of
appeal states that the Court of
Appeal erred in holding that a
surveyor gave evidence when no
surveyor was called. I do not
think the ‘surveyor’ under this
ground is referable to the trial
of this action at the High
Court. On the contrary it
referred to the one mentioned in
exhibits 1 and 2. Indeed in its
judgment the court made
reference to page 223 of the
record of appeal where Andrew
Essien the surveyor testified
before H.C./W. Grimshaw, the
Provincial Commissioner. It
would appear that this Andrew
Essien was the same surveyor who
surveyed the land in dispute
between the first defendant’s
grand father L.T.C Davies and
Norweh in the 1912 litigation.
Now a close look at exhibit 1
will show at page 228 of the
record that the Commissioner
described the land sold under
the order of the court as “edged
with pink in the plan” and that
was what Aryeh sold to Essaw.
The judge (Commissioner) was
careful enough to warn that the
land “hatched with red on the
plan” was not affected by his
judgment. The inference was
that there was a plan before the
Commissioner which clearly
identified the land sold by the
order of the court or the land
sold by Aryeh.
It seems to me that
the controversy raised by this
ground of appeal seems to center
around the linkage between the
1912 or 1913 judgment and the
plan appearing in exhibit 2,
which plan was certified or
signed by the said Andrew Essien
in 1927. There is evidence by
the first defendant that these
two documents were retrieved
from his father’s box. If that
is true then they must be deemed
to have come from proper custody
and free from suspicion within
the context and meaning of
section 146 of the Evidence
Decree, 1975 (NRCD 323) and the
commentary thereon. I will
therefore endorse the view
expressed by the Court of Appeal
that the documents marked
exhibits 1 and 2 pass the
authenticity test and were
properly admitted in evidence
and relied upon by the trial
court.
Another ground of
appeal by the plaintiff is that
the Court of Appeal erred when
it said that the plaintiff’s
ancestors gave evidence to the
effect that she sold the land in
dispute to a predecessor of the
first defendant. In support of
that contention counsel referred
to a sentence which appears at
page 338 of the record. It
reads: “That the disputed land
was sold to his grandfather
L.T.C. Davies by Araba Aryah has
been the clarion claim of the 1st
defendant right from the
inception of the litigation”.
Although the sentence is
contained in the judgment of the
Court of Appeal, I do not
consider it as causing any
substantial miscarriage of
justice. And relying on both
exhibits 1 and 2 as forming the
basis of his case in this
litigation the stance taken by
the first defendant is that the
land sold by public auction and
bought by J. A. Williams which
J.A. Williams in turn sold to
L.T.C. Davies legitimately
belongs to the children of
L.T.C. Davies, and as a paternal
grandchild he (the first
defendant) is entitled to the
enjoyment of the land.
The next ground of
appeal is the one which states
that “the Court of Appeal did
not appreciate the arguments on
Additional Grounds E and
therefore relied on the case of
Davies vrs. Randall,
which does not cover the 1st
defendant whose father was from
Cape Coast”. The case of
Davies v. Randall & Anor. is
reported in [1963] 1 G.L.R.
382. That was the case in
which, after the death of the
first defendant’s grandfather
L.T.C. Davies, his land with
buildings thereon was sold to a
third party. The main issue in
that case was whether the
children of L.T.C. Davies, a
Sierra Leonean, constituted his
family after his death for
purposes of succession to his
immovable property. It was held
that as legitimate children of
the deceased, they clearly had
an interest in the property.
Now the argument
goes beyond the mere reference
to the Randall case. If I
understand him correctly, the
plaintiff is saying that since
the first defendant’s father
came from Cape Coast and his
mother is from Akim Akuapem –
both families being matrilineal
– he cannot succeed to the
land. This is an ingenious
argument, especially when one
considers that the first
defendant is a grandchild and
not a direct child of L.T.C.
Davies (deceased). But unless
the plaintiff can successfully
prove to be a member of the
deceased’s family, I cannot
imagine how any court can decree
title in his favour in respect
of the land in dispute. The
other alternative depends on the
ability of the plaintiff to
prove his case by the
preponderance of the
probabilities in this
litigation. As I see it, the
line of argument canvassed in
support of this ground is of no
avail to the plaintiff.
It was also argued
on behalf of the plaintiff that
at the time the plaintiff was
testifying he did not have the
third defendant (co-defendant)
in view and therefore did not
adduce any evidence against
him. However, since during
cross-examination the third
defendant denied certain facts
relating to the identity of the
two families, the trial court
was duty bound to allow the
plaintiff to call evidence to
rebut the third defendant’s
testimony. Now the third
defendant’s application for an
adjournment was refused by the
trial court on 3rd
November, 1999, and was deemed
to have closed his case. On
that date although counsel for
all three parties were in court
there is no indication of the
reaction of the plaintiff or his
counsel. It is now being argued
that the trial court was duty
bound to have allowed the
plaintiff to lead evidence of
rebuttal.
Now I turn briefly
to the evaluation of the
evidence as between the
plaintiff and the defendants.
It is trite law that this suit
being essentially for a
declaration of title the
plaintiff was bound to establish
his root of title. In the
present case this was not
satisfactorily established. As
noted elsewhere in this
judgment, the plaintiff himself
did not testify at the trial,
and of the witnesses who gave
evidence on his behalf only
P.W.1 described the boundaries
as per the statement of claim.
To succeed in an action for a
declaration of title a plaintiff
is required to show his
boundaries clearly. I have
already commented on the
plaintiff’s opposition to the
land being demarcated by a
competent surveyor. And apart
from the plaintiff’s resistance
to a plan being made, no
boundary owners were called to
testified to the ownership of
the disputed land. In my
judgment this is fatal to the
plaintiff’s claim, for as it was
held in AKOTO II V. KAVEGE
[1984 – 86] 2 GLR 365 failure to
prove even only one side of
boundaries can be fatal,
notwithstanding whether or not
the defendant counterclaimed.
On the other hand,
the defendants were able to
trace their root of title from
exhibit 1 which has been
adequately examined in these
proceedings. They relied on
exhibit 2 to show that the
identity of the land was the
Kotokobon land part of which was
bought by Williams at a public
auction and which in turn was
eventually sold to L.T.C.
Davies. The plan in exhibit 2
has generated a lot of
controversy, particularly
because it was signed by Essien
in 1927, the same surveyor
mentioned in the 1912 judgment.
In DEVIES V. RANDALL & ANOR.
[1964] GLR 671 it is clear that
L.T.C. Davies died on 21
December, 1919, and therefore he
could not have had anything to
do with a document prepared in
1927. However, it is not
unreasonable for any of his
children or widow to approach
Essien for the purpose of
tracing the judgment plan from
the surveyor’s own copy. The
comparison of the judgment in
exhibit 1 and the plan appearing
on the face of exhibit 2 is
exactly what the Court of Appeal
did and concluded that the
documents were both genuine. I
have nothing more to doubt about
the conclusion arrived at by the
Court of Appeal.
Quite apart from
exhibits 1 and 2 the record is
replete with overt acts of
ownership demonstrated by the
children of L.T.C. Davies.
Exhibit 4 is the lease executed
between Samuel Livingstone Silas
Davies (father of the first
defendant) as lessor and John
Donkor as lessee, which lease
was for a term of ninety-nine
years commencing from June,
1972. Similarly, exhibits 5 and
6 are leases made in favour of
John Kwesi Quainyin and George
Henry Monney respectively for
the use of portions of the
land. In my view the Court of
Appeal and the trial court
rightly dismissed the
plaintiff’s claim as
unsatisfactory.
I now turn to the
third defendant’s
(Co-defendant’s) grounds of
appeal, the first of which is
that the Court of Appeal erred
in affirming the judgment of the
High Court; and that being the
case the trial was a nullity
because the judge failed to
grant him any opportunity to
cross-examine the plaintiff and
his witnesses. The substance of
this ground is the same as the
third of his additional ground
of appeal. I have earlier on
observed in this judgment that
the plaintiff did not testify in
this case, and therefore the
question of not being given an
opportunity for
cross-examination did not arise.
As for the witnesses
for the plaintiff, it is worthy
to note that the third
defendant’s motion for joinder
in the action was granted on 30
November, 1993. On 3 November,
1999 he was compelled to close
his case. The question which
arises is this: for a period of
about six years what was the
third defendant waiting for, if
he was so desirous of applying
to recall the witnesses he had
in mind? Surely such a conduct
is inconsistent with any
perception of diligence. I
consider this ground completely
unmeritorious.
Grounds (d) and (e)
may conveniently be considered
together. The first seeks to
attack the judgment of the Court
of Appeal for failing to
ascertain the connection between
the land described in exhibits 1
and 2 and the disputed land.
The second questions the
genuiness of the two documents.
I earlier on in this judgment
considered both exhibits 1 and 2
and the comparison made by the
Court of Appeal in arriving at
its conclusion that the
documents were authentic and
genuine. It is pointless to be
repetitive on this point. In
any case, it is interesting to
note that it was the third
defendant who tendered exhibit
3D1 at the trial. That exhibit
is the Supreme Court decision
which dismissed Norweh’s appeal
against the judgment of Grimshaw
as per exhibit 1. If the third
defendant considers exhibit 3D1
to be a genuine document what
forms the basis of his doubt in
respect to exhibit 1?
Upon considering the
cases for both the plaintiff and
the third defendant I have no
hesitation in coming to the
conclusion that the appeals have
no merit and consequently they
ought to be dismissed.
F. M. LARTEY
JUSTICE OF THE SUPREME COURT
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME
COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWA
JUSTICE
OF THE SUPREME COURT
COUNSEL:
Mr. S. H. Ocran for Appellant.
Mr. I. G. Carson for Respondent.
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