|
Land
- Declaration of title -
Perpetual injunction -
capacity - Ownership and
possession of -Whether or not
adequately did the Court of
Appeal consider the defendants’
case - whether the parties are
suing or being sued in a
representative capacity on
behalf of an identifiable group
or class -
HEADNOTES
The Plaintiff is an estate
development company. The
plaintiff company obtained three
respective parcels of land
situated at Danchira, near Accra
from Nii Teiko Okai, the
Co-Plaintiff and head and lawful
representative of the Djan Bi
Amu family of Accra and Danchira.
The transaction was evidenced by
a deed of lease dated 5th
June 2001 (exhibits A, B and C).
According to the Plaintiff, it
went into possession of the
leased lands, properly surveyed
same, demarcated and set out
roads thereon. The Plaintiff
then took prospective clients of
theirs to the land only to be
set upon by the Defendants and
prevented from entering thereon
amidst threats of violence.
Embarrassed and aggrieved by the
defendants’ conduct, the
plaintiff commenced the action
in the High Court, Accra
claiming the reliefs as per the
writ of summons and the amended
statement of claim. The
Co-Plaintiff was joined to the
suit at the instance of the
Plaintiff and being the grantor
of the leases to the latter.
According to the Co-Plaintiff,
the disputed land belongs to his
Djan Bi Amu Family since time
immemorial and that there are
judgments in support of his
assertion. The Co-Plaintiff
further contends that even
though some of the Defendants
are members of the Djan Bi Amu
family they have no right to
alienate Danchira lands, since
the lands are not stool lands.
The Defendants’ assert that the
Danchira lands belong to the 1st
Defendant’s family together with
three other families which
constitute a composite family of
four who jointly own the land.
Defendants referred to early
settlement on the subject land
by Nuumo Anyetei Akrama with his
brother who hailed from
Sawerpramano of the Asere
quarter of Accra through whom
subsequent heads, said to be
warriors and hunters came to
found what is today referred to
as Danchira. The Defendants
claim that from time immemorial
the four composite families have
enjoyed uninterrupted and
undisturbed possession and
occupation of the Danchira lands
and have exercised exclusive
rights of possession and
ownership by farming and
granting portions to several
grantees. They also claim that
there are several shrines
situate on various portions of
the land all of which are
worshipped by the Defendants and
their grantees as a testimony to
their superior right of
ownership and possession of the
land. By its decision given on
the 12th February
2015, the Court of Appeal,
allowed the appeal, set aside
the judgment of the High Court
and granted all the reliefs
sought by the plaintiff
HELD -
We find
no support for the decision to
overturn the well founded
reasoning and conclusions of the
trial judge by the Court of
Appeal. We set aside the Court
of Appeal’s findings and affirm
the decision of the trial judge
on the issues. We find no merit
in the defendant’s plea to
conclude otherwise and dismiss
same. We affirm the conclusion
arrived by the two lower courts
on this issue. Accordingly we
hold that the formulation of the
issue in controversy as a
boundary dispute by the Court of
Appeal was in harmony with the
pleadings on record and the
court should not be held back by
mere technicalities.” In the
overall, save for the findings
affirmed, we allow the appeal
against the decision of the
Court of Appeal. To that extent
we affirm the conclusions and
decisions of the trial court.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, (1996), CI
16.
Evidence Act 323,
CASES REFERRED TO IN JUDGMENT
Ayikai v Okaidja III (2011)
SCGLR 205
Akufo-Addo v Catheline [1992] 1
GLR 377
Achoro and Anor v Akanfela
(1996-1997) SCGLR 209; Koglex
Ltd (No 2) v Field (2000) SCGLR
175.
Djin v Musah Baako (2007-2008) 1
SCGLR 686 at 687]
In
Republic vs Central Regional
House of Chiefs & Ors: Ex Parte
Gyan IX (Andoh X- Interested
Party) Civil Appeal No
J4/11/2013
In
re Okine (Deceased); Dodoo v
Okine [2001-2002] SCGLR, 582.
Chieftaincy Act, 1971, Act 371.
Mosi v Bagyina (1963) 1GLR 337,
SC
Craig v Kanseen [1943] 1 K.B.
256, C.A;
Forfie v Seifah[1958] A.C. 59,
PC;
Amoabimaa v Badu (1957) 2
W.A.L.R. 214,
W.A.C.A; Concession Enquiry No.
471 (Ashanti) [1962] 2 G.L.R.
24, SC.
Ghassoub v Dizengoff [1962] 2
G.L.R. 133, S.C.
Adjei vs Acquah [1991] 1 GLR 13
Agyenim Boateng v Ofori & Yeboah
(2010) SCGLR 861
Summey v Yohuno (1962) 1 GLR 60,
SC
Baako v Mustapha [1964] GLR 78.
Lartey v Hausa [1961] GLR 773
The Republic v High Court,
Accra; Ex Parte Aryeetey (Ankrah
Interested Party) (2003-2004)
SCGLR 398
Akrong v Bulley (1965) GLR 469,
SC
Dam v Addo (1962) 2 GLR 200,
BOOKS REFERRED TO IN JUDGMENT
“Land Tenure in Customary Law of
the non-Akan areas of the Gold
Coast Colony Part 1 Adangme)
DELIVERING THE LEADING JUDGMENT
AKAMBA, JSC
COUNSEL
NII AKWEI BRUCE –
THOMPSON ESQ. FOR THE
DEFENDANTS /RESPONDENTS/
APPELLANTS.
YAW D. OPPONG ESQ. FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS
------------------------------------------------------------------------------------------------------------------
JUDGMENT
------------------------------------------------------------------------------------------------------------------
AKAMBA, JSC
The
Plaintiff/Appellant/Respondent,
hereinafter simply referred to
as the Plaintiff, by a writ of
summons issued in the High
Court, Accra, on 14th
May 2007 and amended on 12th
July 2007, claimed against the
defendants/respondents/appellants,
hereinafter simply referred to
as the defendants, the following
reliefs, namely:
“(a) declaration of title to all
that piece or parcel of land
described in the schedule to the
statement of claim; (b) Damages
of ȼ300,000,000.00 against the
defendants jointly and severally
for interfering with Plaintiff’s
right of possession of the land;
(c ) Perpetual injunction
restraining the defendants,
their agents, assigns and
workmen from interfering or
dealing with Plaintiff’s land in
any manner detrimental to
Plaintiff’s interest.”
The High Court, Accra granted an
order on the 10th
July 2007, whereby the
Co-Plaintiff was joined to the
suit.
By
their statement of defence filed
on 28th March 2008,
not only did the defendants
discount the claims of the
Plaintiff and Co-Plaintiff, they
went further and set up a
counterclaim against the
plaintiffs.
THE PLAINTIFF’S CASE
The Plaintiff is an estate
development company. The
plaintiff company obtained three
respective parcels of land
situated at Danchira, near Accra
from Nii Teiko Okai, the
Co-Plaintiff and head and lawful
representative of the Djan Bi
Amu family of Accra and
Danchira. The transaction was
evidenced by a deed of lease
dated 5th June 2001
(exhibits A, B and C). According
to the Plaintiff, it went into
possession of the leased lands,
properly surveyed same,
demarcated and set out roads
thereon. The Plaintiff then took
prospective clients of theirs to
the land only to be set upon by
the Defendants and prevented
from entering thereon amidst
threats of violence. Embarrassed
and aggrieved by the defendants’
conduct, the plaintiff commenced
the action in the High Court,
Accra claiming the reliefs as
per the writ of summons and the
amended statement of claim.
The Co-Plaintiff was joined to
the suit at the instance of the
Plaintiff and being the grantor
of the leases to the latter.
According to the Co-Plaintiff,
the disputed land belongs to his
Djan Bi Amu Family since time
immemorial and that there are
judgments in support of his
assertion. The Co-Plaintiff
further contends that even
though some of the Defendants
are members of the Djan Bi Amu
family they have no right to
alienate Danchira lands, since
the lands are not stool lands.
DEFENDANTS’ CASE
The Defendants’ assert that the
Danchira lands belong to the 1st
Defendant’s family together with
three other families which
constitute a composite family of
four who jointly own the land.
Defendants referred to early
settlement on the subject land
by Nuumo Anyetei Akrama with his
brother who hailed from
Sawerpramano of the Asere
quarter of Accra through whom
subsequent heads, said to be
warriors and hunters came to
found what is today referred to
as Danchira. The Defendants
claim that from time immemorial
the four composite families have
enjoyed uninterrupted and
undisturbed possession and
occupation of the Danchira lands
and have exercised exclusive
rights of possession and
ownership by farming and
granting portions to several
grantees. They also claim that
there are several shrines
situate on various portions of
the land all of which are
worshipped by the Defendants and
their grantees as a testimony to
their superior right of
ownership and possession of the
land.
After a full trial, the High
Court per Tanko Amadu, J (as he
then was) delivered a judgment
on 1st February 2010
in favour of the defendants on
their counterclaim.
The plaintiffs filed a notice of
appeal against the High Court
decision on 12th
February 2010 seeking a reversal
of the decision in their favour.
By
its decision given on the 12th
February 2015, the Court of
Appeal, allowed the appeal, set
aside the judgment of the High
Court and granted all the
reliefs sought by the plaintiff
as per the plaintiff’s writ of
summons and statement of claim.
The co-plaintiff did not seek
any relief. The Court of Appeal
also refused the defendants’
contention to vary the judgment
of the trial High Court to
declare the ownership of the
disputed land to be in the 1st
defendant’s four composite
families.
The defendants have per their
notice of appeal filed on 25th
April 2015 listed the following
seventeen issues as their
grounds of appeal for
determination by this court.
These are:
“GROUNDS OF APPEAL IN SUPREME
COURT
1.
The judgment is against
the weight of evidence.
2.
The Court of Appeal failed
to consider the defendant’s case
adequately.
3.
The Court of Appeal erred
in not varying the judgment of
the Learned Trial Judge as
sought by the Defendants.
4.
The Learned Judges of the
Court of Appeal erred in finding
and holding that tenants of the
co-plaintiff were in possession
of the land.
5.
The Court of Appeal Judges
erred in law when they held that
possession cannot ripen into
ownership no matter how long it
had been held or had.
6.
The Learned Judges of the
Court of Appeal erred in finding
and holding that the case of the
defendants for recovery of
possession was riddled with
several pitfalls and or
weakness.
7.
The Court of Appeal erred
in holding that the 1st
defendant could not represent
the 4 composite families of
Danchara.
8.
The Learned Judges erred
in finding and holding that some
of the four families such as
AMANFRO were mentioned by the
defendants as boundary owners of
Danchara lands.
9.
The Learned Judges of the
Court of Appeal erred in law in
holding that because the
defendants referred to Kwame
Amu’s land as a boundary owner
Danchara lands are owned by the
plaintiff.
10.
The Learned Judges of the
Court of Appeal erred in holding
that the trial Judge erred in
linking the 4th and 5th
Defendants’ land to the 4
families.
11.
The Learned Judges erred
in holding that the 1st
defendant’s attorney had no
authority to defend the suit on
behalf of the 4 composite
stools.
12.
The learned Judges of the Court
of Appeal erred in holding that
Exhibit H operates as an
estoppel against the defendants.
13.
The learned Judges of the Court
of Appeal erred in failing to
hold that the judgment exhibit H
on the face it was given without
jurisdiction.
14.
The Learned Court of Appeal
Judges erred in holding that the
finding of the trial Judge and
Danchara lands are owned by the
four composite families was not
only inconsistent with
documentary evidence on the
record to wit exhibit H but was
also not supported by any other
evidence on record.
15.
The Learned Judges of the Court
of Appeal erred in not finding
that if the co-plaintiff’s
family ever had the land their
title was statute-barred.
16.
The learned Judges of the
Court of Appeal erred in not
finding that the action against
the 4th and 5th
defendants was statute-barred.
17.
The learned Judges of the Court
of Appeal erred in failing to
hold that the co-plaintiff in
the action for declaration of
title to land failed to meet the
requisite standard of proof.
18.
Further grounds of appeal would
be filed on receipt of the
record of appeal.”
COMPLIANCE WITH COURT RULES
It
is important to stress that the
adjudication process thrives
upon law which defines its scope
of operation. It is trite to
state for instance that, nobody
has an inherent right of appeal.
The appeal process is the
creature of law. Any initiative
within the context of the
adjudication process must be
guided by the appropriate,
relevant provision, be it
substantive law or procedural
law. As courts, if we fail to
enforce compliance with the
rules of court, we would by that
lapse be enforcing the failure
of the adjudication process
which we have sworn by our
judicial oaths to uphold.
The matter before us presently
has been initiated through the
appeal process and must
therefore be conducted and
guided by The Supreme Court
Rules, (1996), CI 16. We would
reiterate compliance with the
rules of this court by
juxtaposing the seventeen
grounds of appeal (supra) filed
by the defendants with the
provisions of rule 6 (4) to (8)
of The Supreme Court Rules
(1996), CI 16, to determine how
far they are compliant and if
not, what consequences arise.
The relevant provisions provide
thus:
“6
Notice of Grounds of Appeal
(4) The grounds of appeal shall
set out concisely and under
distinct heads the grounds on
which the appellant intends to
rely at the hearing of the
appeal, without an argument or a
narrative and shall be numbered
seriatim and where a ground
of appeal is one of law, the
appellant shall indicate the
stage of the proceedings at
which it was first raised.
(5) A ground of appeal which
is vague or general in terms or
does not disclose a reasonable
ground of appeal is not
permitted, except the general
ground that the judgment is
against the weight of evidence
and a ground of appeal or a
part of it which is not
permitted under this rule, may
be struck out by the Court on
its own motion or on an
application by the respondent.
(6) The appellant shall not,
without the leave of the Court,
argue or be heard in support of
a ground of appeal that is not
specified as a ground of appeal
in the notice of appeal.
(7) Despite sub rules (1) to
(6), the Court,
(a) may grant an appellant
leave to amend the ground of
appeal on the terms specified by
the Court; and
(b) shall not, in deciding the
appeal, confine itself to the
grounds set forth by the
appellant nor shall the Court be
precluded from resting its
decision on a ground not set
forth by the appellant.
(8) Where the Court intends to
rest a decision on a ground not
set forth by the appellant in
the notice of appeal, or on a
matter not argued before it, the
Court shall afford the parties
reasonable opportunity to be
heard on that ground or matter
without re-opening the whole
appeal.” [Underlined for
emphasis]
Of
late the courts are inundated
with ill prepared initiatives by
counsel whose only motives are
to hit newspaper headlines by
any means or be seen to be
carrying out the mandates of
their unsuspecting and/or
misinformed clients or simply
for undeserved financial gain.
The result is the spate of
unwarranted actions, writs,
motions, petitions and appeals
to cite but a few, which are
hardly initiated in strict
compliance with the procedure
rules. It is now time for the
courts to wake up from the
slumber of despair and strictly
apply the rules that regulate
the proper conduct of trials in
our court system. As Courts of
law we administer justice
according to law and equity
which are strictly guided by
laid down rules fashioned over
the centuries to guide our
conduct. In Ayikai v Okaidja
III (2011) SCGLR 205 this
court did stress the fact that
non-compliance with the rules of
court have very fatal
consequences for they not only
constitute an irregularity but
raise issues that go to
jurisdiction.
The first ground of appeal
certainly conforms to rule 6 (5)
of CI 16 under the omnibus
provision. Grounds
2,3,4,6,8,10,11,13,14 and 17 do
not conform to the requirements.
They however can be dealt with
under the omnibus ground raised
in ground one. To the extent
that they cannot stand on their
own they are struck out under
rule 6 (5) of CI 16, even though
in determining the omnibus
ground such of the points
touching on factors or areas
that the Court of Appeal failed
to take into consideration or
drew wrong inferences would be
covered. Apart from points of
law bordering on issues of
jurisdiction which are obvious
any other that the appellant has
not indicated the stage of the
proceedings at which such issue
of law was first raised, be they
procedural or substantive or are
simply vague, are equally struck
out for non-compliance with rule
6 (5) of CI 16. In the result,
this appeal would be determined
solely on the omnibus ground of
appeal that the judgment is
against the weight of evidence.
DECISION OF COURT OF APPEAL
The unanimous decision of the
Court of Appeal given on 12th
February 2015 allowed the appeal
against the judgment of the
trial court. All orders made
therein were set aside. In its
place judgment was entered for
the co-plaintiff to the effect
that his Djanbi Amu family is
the allodial owner of Danchira
lands.
The scope of the burden upon
this court in determining an
appeal on the omnibus ground of
‘the judgment is against the
weight of evidence’ has received
several pronouncements from this
court. A few examples will
suffice.
In
Akufo-Addo v Catheline [1992] 1
GLR 377 at 379 holding 3, this
court stated that, “When an
appellant exercised the right
vested in him and appealed on
the ground that ‘the judgment
was against the weight of the
evidence’ the appellate court
had jurisdiction to examine the
totality of the evidence before
it and come to its own decision
on the admitted and undisputed
facts.” See also Tuakwa v Bosom
[2001-2002] SCGLR 65.
Where the appellate court comes
to the conclusion that findings
of fact by the court below are
not supported by the evidence on
record or where the findings are
perverse, then it may set those
findings aside. The appellate
court will also set aside
findings and conclusions arrived
by a lower court where the
findings and conclusions are
based on a wrong proposition of
law. See also Achoro and Anor v
Akanfela (1996-1997) SCGLR 209;
Koglex Ltd (No 2) v Field (2000)
SCGLR 175.
Under this ground of appeal, the
whole matter opens up for
re-hearing based upon the record
of appeal. Thus the entire
record of what transpired in the
court of trial including
testimonies, cross-examinations,
re-examinations, exhibits -
accepted or rejected, and indeed
every or any documentary or
other evidence adduced or
rejected at the trial before the
court arrived at its decision,
will be open to the appellate
court to examine to satisfy
itself that on a preponderance
of probabilities, the
conclusions of the trial judge
are reasonable or amply
supported by the evidence. For
our part, being the final
appellate court, the record for
the purposes of the re-hearing
before us includes records of
what transpired in first
appellate court which are borne
by the record in order to give
us a comprehensive overview of
events.
This appeal was initiated by the
defendants. They therefore have
the burden or onus to
demonstrate clearly to this
court what lapses they notice in
the judgment appealed against to
warrant our interference. [See
Djin v Musah Baako (2007-2008) 1
SCGLR 686 at 687]
In
Republic vs Central Regional
House of Chiefs & Ors: Ex Parte
Gyan IX (Andoh X- Interested
Party) Civil Appeal No
J4/11/2013 of 19/07/2013,
(unreported) this court stated
that the appellant has a duty to
clearly show where the Court of
Appeal went wrong or where they
failed to take into
consideration all the
circumstances and the evidence
or had drawn wrong inferences
without any evidence in support.
ANALYSIS
The Defendants’ initial
lamentation is about the Court
of Appeal’s inadequate
consideration of their
(defendants’) case. Did the
Court of Appeal adequately
consider the defendants’ case?
The Court of Appeal in its
unanimous decision, concluded
per Kanyoke, JA as follows:
“In
effect I hold that the finding
and conclusion made by the trial
judge that Danchira lands are
owned by the four composite
familiar (sic) of Sawerpremano,
Kubeshishie, Amanfo and Juabeng
is not only inconsistent with
documentary evidence on the
record, to wit Exhibit H
but it is also not supported by
any other evidence on the
record. As a hearing court, this
court would not under normal
circumstances disturb findings
of fact by a trial court even if
the appellate court would have
come to a different conclusion
on the matter but the appellate
court will interfere where those
findings of fact are wholly
unsupported by the evidence on
the record as in the instant
case. See In re Okine
(Deceased); Dodoo v Okine
[2001-2002] SCGLR, 582. To my
mind, the findings of fact made
by the trial judge that Danchira
lands are owned by the 1st
Defendant’s four composite
families is wholly unsupported
by the evidence on the record, I
will accordingly disturb the
finding and I hereby set it
aside.”
The apparent heavy reliance
placed upon exhibit H by the
Court of Appeal calls for close
scrutiny to determine whether
there is any justification for
it. Stated differently, what is
the significance of Exhibit H in
resolving the issues in
contention between the parties
in this appeal, the same being
the rival claims to the same
area of land by the
Co-Plaintiff’s Djanbi Amu’s
family and the Defendants’ four
composite families? Without any
measure of doubt exhibit H
issued out of the Judicial
Committee of the Ga Traditional
Council which sat at the Ga
Mantse’s Palace on 20th
January 1988 apparently to
determine a dispute over land.
The relevant legislation
governing the Judicial Committee
of the Ga Traditional Council
which sat on 20th
January 1988 was the Chieftaincy
Act, 1971, Act 371. Section 12
of the said Act 371 provided for
Traditional Councils as follows:
“There
shall be a traditional council
for each traditional area and
the traditional councils in
existence immediately before the
commencement of this Act shall
continue in existence for the
traditional areas in respect of
which they existed immediately
before the commencement.”
As to their jurisdiction,
section 15 thereof enacts as
follows:
“15. Jurisdiction in chieftaincy
disputes.
(1)
Subject to this Act
and to an appeal from the
traditional council, a
traditional council has
exclusive jurisdiction to hear
and determine a cause or matter
affecting chieftaincy which
arises within its area, not
being one to which the
Asantehene or a Paramount Chief
is a party.”
Section 66 defines “Cause or
matter affecting chieftaincy”
to mean “a cause, matter,
question or dispute relating to
(a)
The nomination,
election, appointment or
installation of a person as a
Chief or the claim of a person
to be nominated, elected,
appointed or installed as a
Chief, or
(b)
The destoolment or
abdication of a Chief, or
(c)
The right of a person
to take part in the nomination,
election, appointment or
installation of a person as a
Chief or in the destoolment of a
Chief, or
(d)
The recovery or
delivery of stool property in
connection with nomination, an
election, appointment,
installation, a destoolment or
an abdication, or
(e)
The constitutional
relations under customary law
between Chiefs.”
The Court of Appeal’s heavy
reliance upon exhibit H to
affirmatively pronounce as it
did is devoid of any justifiable
jurisdictional basis. This is
because the dispute brought
before the Judicial Committee of
the Ga Traditional Council was a
dispute over ownership of land
by the two families which did
not fall within the definition
of a ‘cause or matter affecting
chieftaincy’ provided in s. 66
of Act 371 (supra) so as to
clothe the committee with
jurisdiction. The resultant
wrongful assumption of
jurisdiction culminating in the
issuance of Exhibit H renders it
a void document, a fact that is
obvious on the face of the
document. It was therefore
incumbent upon the trial judge
and the Court of Appeal to set
it aside. The failure on the
part of the courts below to
specifically pronounce upon the
void nature of exhibit H despite
their attention being drawn
thereto appears to give rise to
the belief that reliance could
be placed on same.
In
the celebrated case of Mosi v
Bagyina (1963) 1GLR 337, SC,
this court held per Akufo-Addo,
JSC in holding 4 that:
“Where
a judgment or an order is void
either because it is given or
made without jurisdiction or
because it is not warranted by
any or rule or procedure, the
party affected is entitled ex
debito justitiae to have it set
aside, and the court or a judge
is under a legal obligation to
set it aside, either suo motu or
on the application of the party
affected. No judicial discretion
arises here. The power of the
court or a judge to set aside
any such judgment or order is
derived from the inherent
jurisdiction of the court to set
aside its own void orders and it
is irrespective of any expressed
power of review vested in the
court or a judge; and the
constitution of the court is for
this purpose immaterial.
Further, there is no time limit
in which the party affected by a
void order or judgment may apply
to have it set aside, Craig v
Kanseen [1943] 1 K.B. 256, C.A;
Forfie v Seifah[1958] A.C. 59,
PC; Amoabimaa v Badu (1957) 2
W.A.L.R. 214, W.A.C.A;
Concession Enquiry No. 471
(Ashanti) [1962] 2 G.L.R. 24,
SC. And Ghassoub v Dizengoff
[1962] 2 G.L.R. 133, S.C.
applied.”
We
have no hesitation in finding
exhibit H void and as such no
reliance could have been placed
upon same to establish the claim
to the disputed land as the
Court of Appeal purported to do.
With the rejection of exhibit H
we find no other evidence led by
the plaintiff to make out their
claim to the disputed land. We
set aside the Court of Appeal’s
finding to the contrary and
uphold the trial judge’s
conclusion of lack of proof of
the plaintiff’s claim.
OWNERSHIP OF DANCHIRA LANDS
The Court of Appeal also stated
that there was no other evidence
in the appeal record which
supported the trial judge’s
conclusion that the Danchira
lands are owned by the four
composite family. Here again a
brief excurses into the record
of appeal would resolve the
issue. It would be recalled from
the evidence on record that the
Co-Plaintiff had failed to
provide any facts of his own
case in his pleadings. He also
failed to recite historical
facts to support his claims
about his Djan Bi Amu family’s
ownership of Danchira lands. The
court was thereby deprived of an
alternative version of
traditional evidence of the
subject matter upon which to
test that which was earlier set
out in the judgment. The court
was thus left with the recitals
in exhibit G to conclude on the
Plaintiff and Co-Plaintiff’s
claims to ownership in support
of the Djan Bi Amu’s ownership
of Danchira lands. One such
piece of evidence from the
Co-Plaintiff to establish his
ownership was the claim that the
originator of his family called
Kwame Amu was responsible for
planting ‘weweti’ trees which
trees are not peculiar to the
disputed land but common in the
area adjourning as well. This
piece of evidence arose from
answers during cross
examination. The trial court
found this to be insufficient
evidence to substantiate the
claim to ownership of the land
by traditional evidence without
demonstrating overt acts of
possession and recent acts of
ownership comparatively stronger
than the version of the
defendants. We find the trial
judge’s reasoning on the point
well founded. Traditional
history and Family history,
although hearsay evidence, are
by virtue of sections 128 and
129 of the Evidence Act 323,
been made exceptions to the
hearsay rule. Therefore
traditional history is accepted
in evidence in proof of a fact
in issue. Where there is
conflicting traditional evidence
on possession, the authorities
have resorted to recent acts of
ownership to resolve the impasse
as summed up in this court’s
decision in Adjei vs Acquah
[1991] 1 GLR 13 as follows:
“The
law was that although
traditional evidence had a part
to play in actions for
declarations of title, a
favourable finding on its
evidence was not necessarily
essential to the case of either
of the party seeking the
declaration. What the
authorities required was that
traditional evidence had to be
weighed along with recent facts
to see which of the two rival
stories appeared more probable.
Facts established by matters and
events within living memory
especially evidence of acts of
exercise of ownership and
possession must take precedence
over mere traditional evidence.”
We
equally find the plaintiff’s
reliance on the historical
recitals contained in exhibit G
without more, insufficient to
found his claim to ownership of
the disputed area. The Plaintiff
and Co-Plaintiff, as initiators
of the claim for declaration of
title to the disputed land, have
the burden under s 11 of Act
323, the Evidence Act, of
producing evidence sufficient
enough to avoid a ruling against
them on the issue, just as the
defendants have a similar burden
to undertake in respect to their
counter-claim. Section 17 of the
same Evidence Act 323, defines
the burden of producing evidence
of a particular fact to be on
the party against whom a finding
on the fact would be required in
the absence of further proof.
Equally relevant is s. 14 of Act
323 which states that unless and
until shifted, a party has the
burden of persuasion as to each
fact the existence or
non-existence of which is
essential to the claim or
defence he is asserting. The
plaintiff and co-plaintiff did
not meet the basic evidential
burdens placed upon them under
the sections of the Evidence Act
above referred to hence the
trial judge was right in his
conclusion that the finding of
fact should be entered against
the plaintiff and co-plaintiff
on the issues. The trial judge
did also consider the evidence
led in support of the plaintiff
and co-plaintiff claims by PWs 3
and 4 in arriving at his
conclusions. PW3 is Beatrice Oye
Bempong, the Registrar of the Ga
Traditional Council who tendered
exhibit H in evidence. This
witness did not have much to add
to the cause of the plaintiff
and co-plaintiff beyond
tendering the official record of
the proceedings of the Judicial
Committee of the Ga Traditional
Council of 20th
January 1988 which was in her
official custody. The trial
judge’s assessment of PW4 did
not also hold him out as
advancing the Plaintiff’s case
much. One wonders how the Court
of Appeal, in the light of the
unfavourable assessments of the
Plaintiff and Co-Plaintiff and
their witnesses would overturn
the findings and conclusions of
the trial court. It is
instructive to state that it is
the trial court that has the
exclusive right to make primary
findings of fact which would
constitute building blocks for
the construction of the judgment
of the court where such findings
of fact are supported by
evidence on the record and are
based on the credibility of
witnesses. It is also the trial
tribunal which must have had the
opportunity and advantage of
seeing and observing the
demeanour of witnesses and
become satisfied of the
truthfulness of their
testimonies touching on any
particular matter in issue. (See
Agyenim Boateng v Ofori & Yeboah
(2010) SCGLR 861.
We
find no support for the decision
to overturn the well founded
reasoning and conclusions of the
trial judge by the Court of
Appeal. We set aside the Court
of Appeal’s findings and affirm
the decision of the trial judge
on the issues.
PERSONS IN POSSESSION OF
DISPUTED LAND
The Court of Appeal also found
and held that tenants of the
co-plaintiffs were in possession
of the land. To put it in
context this is what the Court
of Appeal found:
“In
the instant case, the stark fact
is that the so-called tenants
of the defendants’, namely DW1
–DW5 were in possession of
portions of the Danchira lands
just as tenants of the
co-plaintiff were such as Pw4
Numon Juaben a.k.a Armah Gordon
and Abu Mohammed. See the cross
examination of 1st
defendant’s attorney at page
218-219 of the ROA. Another
person who is farming on the
Danchira lands and who has been
granted his farmlands by the
co-plaintiff’s family is one
Joshua Lamptey. See the evidence
of the 1st
defendant’s attorney under cross
examination at page 219 of the
ROA. Consequently, the trial
judge’s finding that no
contradicting evidence of
possession was placed before him
by the plaintiff’s is not
supported by the evidence on
record. The trial judge clearly
misdirected himself on that
point. In my view the stark fact
apparent on the evidence on
record is that both the
plaintiff’s tenants as well as
the defendant’s alleged
tenants like DW1-DW6 are
farming on the Danchira land and
therefore the defendants were in
possession of the Danchira lands
just as the co-plaintiff
was.”
On
what basis did the Court of
Appeal conclude that PW4 Numon
Juaben and Abu Mohammed were
tenants, whereas DW1 to DW5 were
‘so called tenants’ on the
disputed land? PW4 Nii Armah
Juabeng is a Wulomo (traditional
priest) and a peasant farmer
living at Danchira. On the other
hand Abu Mohammed was only
mentioned during the cross
examination of Nii Adu Anderson,
the 1st Defendant’s
Attorney and was said to be a
peasant farmer. The 1st
Defendant’s Attorney admitted
that he had not granted Abu
Mohammed the land on which he
farms. The stark difference
between the plaintiffs’ and the
defendants’ is that whereas the
defendants’ actually called some
of their tenants such as DW1 to
DW5, to testify in the
proceedings concerning their
holdings or grants and the
customary payments or rents they
render to their landlord, the 1st
Defendant, the Plaintiffs were
merely content to just mention
the names of the ‘tenants’ on
their claimed land and even so,
emerging out of cross
examination. (See Pages 218 to
219 of ROA).
A
brief account of the testimonies
of some of the defendant’s
tenants from the record of
appeal will illustrate the
difference. DW1 testified that
his late father acquired the
land from Koblah Bosomfo in 1947
whilst DW2’s father acquired the
land they cultivate in 1936 from
his grantors whom he claims
comprise families from Asere
quarter of Accra just like the
DW1. Exhibit 7, the lease
document covering the
transaction between Dzasetse Nii
Amar II (the Asere chief) and
Vincent Kofi Ocloo was made on
20th July 1974 and
tendered in support of the
defendant’s claim that they had
granted portions of the disputed
land to the said Vincent Kofi
Ocloo among other tenants.
Indeed exhibit 7 covers a grant
of 640 acres of land for rearing
and farming purposes.
Significantly, half of the land
covered by the grant evidenced
in exhibit 7 is the subject of
the subsequent grant by the
Co-Plaintiff to the Plaintiff as
per exhibit C made on 10th
June 2001, which apparently
triggered the action in the High
Court. (See page 338 of the ROA).
One therefore wonders why the
Court of Appeal would set aside
the reasoned preference by the
trial judge for the defendants’
conduct of their claims for the
lackadaisical presentation of
the plaintiffs. This is also
against the background of the
advantage of the trial judge to
observe these witnesses at close
range in order to assess their
credibility than the Court of
Appeal had which at best was to
merely draw inferences from the
record of appeal before them.
There is merit in the
appellant’s impeachment of the
Court of Appeal’s finding
concerning the tenants’ in
possession of the lands. This is
because the Court of Appeal’s
inferences were rather wrong as
same are not supported by the
evidence on record. We find that
the defendants’ discharged their
burden of producing evidence to
substantiate their claim that
they had long before, granted
portions of their lands to
tenants such as DW1 to DW5 who
were in possession and paid
their customary rents to them.
There is some contention that in
so long as exhibit 7 was entered
between Dzasetse Nii Amar II and
Vincent Kofi Ocloo rather than
the 1st Defendant or
his stated four composite
families, the same does not
afford proof of the defendants’
ownership of the disputed land.
It is significant that the 1st
defendant and the other
defendants trace their origin to
the Asere stool rather than the
Djan Bi Amu family. It is
equally significant that the
defendant’s exhibit 7 was
entered between the Asere stool
and DW10’s deceased father. Thus
the 1st defendant’s
forebear’s submission of the
exhibit 7 for execution finds
meaning in the writings of R.J.H
Pogucki (Assistant Commissioner
of lands) writing on “Land
Tenure in Customary Law of the
non-Akan areas of the Gold Coast
Colony Part 1 Adangme) of
December 1952 at pages 29 to 31
under paragraph 40, as follows:”
Although stools may be in
existence among the Adangme,
there is no evidence to show
that there are any direct links
between a stool and land, nor is
the existence of stool land
claimed . But in one or two
cases, on the border of the GA
Federation, the term ‘stool
land’ is used, though
examination shows that it is a
colloquial expression……..There
were however cases when the
political chief i.e. the
previous war leader, is regarded
as an agent in the matter of
making grants of unallocated
land, acting for jointly land
owning kingship groups. This may
be understood if it is noted
that such new grants almost
invariably concern only
strangers and, that the
political chief is regarded as
the official representative of
the group in external dealings.
It is in those cases that
sometimes the term ‘stool’ is
colloquially used to denote who
acts for the joint the joint
owners…”
There is considerable support
for the practice above recounted
in the evidence of the 4th
Defendant and recorded at Pages
330 to 334 of the record of
appeal. According to the 4th
Defendant the land was acquired
by his late father Vincent Ocloo
who initially came to observe
the place in 1965. He eventually
came to start operations in
1970. The documents in respect
to the land were prepared in
1974. As to the circumstances of
the acquisition the witness
stated that the land was
acquired from Nii Ayitey Boafo
and Odartey Lamptey. There was
one Oko Teiko who was also
involved and the three led Mr
Vincent Ocloo to Accra, to a
place called Asere where they
introduced him to the chief of
Asere. The witness testified
that Ayitey Boafo hailed from
the Juabeng family of Danchira.
It was in these circumstances
that the Chief of Asere prepared
the document exhibit 7.
It
is worth noting that PW4 Nii
Armah (Juabeng Wulomo) (at page
176 of the record of appeal)
admitted knowing the 4th
Defendant’s father for a long
time. He also admitted that the
land was granted to the 4th
Defendant’s father by the elders
of Juabeng which he used to
establish his Ocloo farms. It is
also significant that this
witness being a witness for the
plaintiff corroborated the
evidence of the defendants as to
who granted this piece of land
to Vincent Ocloo. In view of the
evidence led by DW4 which traces
the sequence of steps which led
to the three land owners notably
Nii Ayitey Boafo, Odartey
Lamptey and Oko Teiko all Asere
men leading Vincent Ocloo to
obtain documents covering the
land granted to the latter in
Danchira, from their Asere
chief, we find nothing irregular
about exhibit 7 in the
circumstance. It also bears
emphasizing that DW4 was not
contradicted nor challenged on
these facts or issues in cross
examination.
We
find no merit in the submission
that the exhibit 7 derogates
from the linkage sought to be
established between the 4th
and 5th Defendants’
lands and the four composite
families which are all
undoubtedly of Asere lineage. We
dismiss the Court of Appeal’s
conclusion to the contrary as
same is not borne by the record.
By
the claims of the 1st
Defendant and the other
defendants in their counterclaim
and per the evidence led in
support of their claims, the
same supports the conclusion
arrived by the trial judge that
the Danchera lands are owned by
a composite of four families of
Asere lineage.
We
cannot fault the trial judge on
the conclusion he arrived at,
given the evidence put before
him wherefore he stated as
follows:
“In my view therefore, the
evidence of facts in recent
years and recent facts adduced
by the defendants is
corroborated by the acts of
undisputed possession by DW1,
DW2, DW3, DW4, DW5, and the 4th
and 5th Defendant all
of whom are grantees of 1st
Defendant whose possession had
never been challenged by the
Co-Plaintiff’s family for a
period of at least more than 20
years in the least of
situations.”
We
therefore find no basis for the
Court of Appeal’s reversion of
the trial judge’s conclusion
quoted supra and accordingly
allow the appeal on the issue
and thereby restoring the trial
judge’s finding.
It
is to no issue that the
defendant raised the claim that
the Court of Appeal erred in
holding that possession cannot
ripen into ownership. The
principle of law on possession
stated by the Court of Appeal is
good law. The Court stated it
thus: “In law possession is
nine points of the law and a
(party) in possession has a good
title against the whole world
except one with a better title.
It is the law that possession is
prima facie evidence of the
right to possession and it being
good against the whole world
except the true owner, he cannot
be ousted from it…’ See Mrs
Elizabeth Osei substituted by
Portia Gilard v Madam Alice Efua
Korang (supra) at page 26 per
Ansah, JSC. See also Summey v
Yohuno (1962) 1 GLR 60, SC and
Baako v Mustapha [1964] GLR 78.
).
The Evidence Act, 1975 (NRCD
323) provides in section 48 (2)
that: A person who exercises
acts of ownership over property
is presumed to be the owner of
it.” However, possession cannot
ripen into ownership no matter
how long it had been held or
had. See Lartey v Hausa [1961]
GLR 773 per Ollenu, J (as he
then was).
It
does appear that it is the last
quotation from the 1961 decision
of Ollenu J (as he then was)
that seems to have unsettled the
defendants. But that is the
state of the law then as it is
now. It is however the
application of the facts by the
Court of Appeal to the law that
is faulty and not the legal
principle per se. The defendants
have shown from the evidence led
in support of their counterclaim
that they are not mere
possessors of the disputed land
but the true or actual owners
thereof and not the plaintiffs’
as found by the trial judge. The
Court of Appeal therefore erred
in setting aside the crucial
finding of the trial judge on
this issue. We set aside the
Court of Appeal’s finding on
this issue and restore the trial
judge’s conclusion.
CAPACITY
Another issue that comes up for
determination relates to the
capacity in which the
defendants’ contested this suit.
While it is true that the choice
of who is to be a defendant lies
with the plaintiff in the suit,
it is equally true that as
regards a counterclaim, the
counter-claimant has the option
to designate the capacity in
which to pursue same. From all
indications from the record of
proceedings, the defendants were
sued by the plaintiffs
individually. The defendants
also mounted their counterclaim
individually and not in any
representative capacity. It is a
fundamental requirement to state
clearly whether the parties are
suing or being sued in a
representative capacity on
behalf of an identifiable group
or class. Under our rules of
pleading, particularly order 4
r. 11 of CI 47, (since the writ
in this action was issued out of
the High Court) the defendants
or any of them were/was required
to state clearly if they were
counterclaiming in a
representative capacity and this
must be stated in the title of
the writ of summons and
statement of claim; the
endorsement to the writ of
summons; the body of the
pleadings.
We
recall the case of The Republic
v High Court, Accra; Ex Parte
Aryeetey (Ankrah Interested
Party) (2003-2004) SCGLR 398,
wherein Kpegah, JSC delivering
the judgment of this court held
at page 405, as follows:
“The requirement that a party
endorses on the writ the
capacity in which he sues, is to
ensure that a person suing in a
representative capacity is
actually invested with that
capacity and therefore has the
legal right to sue. This
includes the submission that the
requirement also enables the
defendant, if he is so minded,
to challenge the capacity the
plaintiff claims he has, and
such a challenge may be taken as
a preliminary issue. This is
because if a party brings an
action in a capacity he does not
have, the writ is a nullity and
so are the proceedings and
judgment founded on it. Any
challenge to capacity therefore
puts the validity of the writ in
issue. It is a proposition
familiar to all lawyers that the
question of capacity, like the
plea of limitation, is not
concerned with the merits so
that if the axe falls, then a
defendant, who is lucky enough
to have the advantage of the
unimpeachable defence of lack of
capacity in his opponent, is
entitled to insist upon his
rights: See Akrong v Bulley
(1965) GLR 469, SC.”
Having failed to issue or
endorse the counterclaim in a
representative capacity, the 1st
Defendant cannot turn round to
expect the court to pronounce
him as having mounted the
counter claim on behalf of the
four composite families, a
situation that would be in clear
violation of Order 4 r.9 of CI
47.
On
the principle well laid out in
Dam v Addo (1962) 2 GLR 200, a
court must not substitute a case
proprio motu, nor accept
a case contrary to, or
inconsistent with that which the
party himself puts forward,
whether he be the plaintiff or
the defendant. Both the trial
judge and the Court of Appeal
rightly held that there was no
evidence on record upon which to
conclude that the 1st
Defendant defended and
counterclaimed the suit on
behalf of the four composite
families. We find no merit in
the defendant’s plea to conclude
otherwise and dismiss same. We
affirm the conclusion arrived by
the two lower courts on this
issue.
Just a day to the delivery of
our judgment our attention was
drawn by counsel for the
respondents to his so called
‘further authority’ filed the
previous day to an earlier
decision of this court in suit
No J4/59/2013, involving Nii
Tackie Amoah VI vs Nii Armah
Okine & Ors and 5 others,
delivered on 15th
January 2014. By the said
document they were apparently
raising the issue of res
judicata which was essentially
not part of his case. It means
that when this appeal was heard
on 15th December 2015
that judgment had been in
existence for about a year. Yet
the same was not pleaded nor
made a part of the respondent’s
case, a necessary prerequisite
for consideration as to whether
or not any issue of estoppel
arises therefrom. This practice
certainly should be
discountenanced. The piece-meal
presentation of cases to the
courts by litigants leads to
utter chaos and confusion in
dispute adjudication. The blame
for such lapses falls squarely
on both counsel and the
litigants. It ought to be in the
interest of all that litigation
should come to an end (interest
reipublicae ut sit finis litium)
hence parties should assist
their counsel to facilitate a
quick and comprehensive disposal
of cases. It is worth stating
that a good bar gives rise to a
good bench. A laid back,
unprepared and non-committed bar
will only get what it deserves –
poor outcomes to its work.
Even though we do not intend to
comment intently on this last
minute development, suffice it
say that the suit No J4/59/2013
of 15/01/2014 was resolved as a
boundary dispute over the
Southern side of the plaintiff
there-in’s family land as this
was in harmony with the
pleadings. This is clearly
captured at page 6 of the
decision thus: “From the nature
of the complaint and the area of
their disagreement, the issue we
can identify between the parties
is a boundary dispute on the
Southern side of the Plaintiff’s
family land. Accordingly we hold
that the formulation of the
issue in controversy as a
boundary dispute by the Court of
Appeal was in harmony with the
pleadings on record and the
court should not be held back by
mere technicalities.”
Apart from the
Plaintiff/appellant respondent
in the J4/59/2013 Nii Tackie
Amoah IV who is the same as the
co-plaintiff in this appeal, the
rest of the parties in that suit
are different from the present
defendants.
In
the overall, save for the
findings affirmed, we allow the
appeal against the decision of
the Court of Appeal. To that
extent we affirm the conclusions
and decisions of the trial
court.
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD) YAW APPAU
JUSTICE OF THE
SUPREME COURT
COUNSEL
NII AKWEI BRUCE –
THOMPSON ESQ. FOR THE
DEFENDANTS /RESPONDENTS/
APPELLANTS.
YAW D. OPPONG ESQ.
FOR THE
PLAINTIFFS/APPELLANTS/RESPONDENTS.
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