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J U D G M E N T
WOOD C.J
BRIEF FACTS
The
Plaintiff/Respondent/Respondent
(hereinafter known as the
Plaintiff) issued out an Amended
Writ of Summons and Statement of
Claim on the 27th May
2003 for the following reliefs:
1.
Declaration of title to all that
land situate, lying and being at
New Weija-Accra and containing
an approximate area of 95.194
acres more or less and bounded
on the Northwest by a proposed
road measuring 2891.70 feet more
or less, on the Northeast by a
proposed road measuring 2656.39
feet more or less, on the
Southeast by Weija lands
measuring 1889.36 feet more or
less and on the Southwest by
Weija lands measuring 2068.55
more or less.
2.
Recovery of possession
3.
Damages for Trespass
4.
Perpetual Injunction
5.
Further or other orders
Plaintiff’s case is that its
Managing Director had acquired a
large swathe of land from the
Weija stool by way of customary
grant in or about 1980. He
immediately went into possession
by clearing the land and
erecting boundary pillars.
In 1998, when Plaintiff was
incorporated, its Managing
Director requested the stool,
acting by its Chief Nii Anto
Nyame II that the documents in
respect of the land be made out
in the name of the Plaintiff
Company.
It is also the case of Plaintiff
Company that a cadastral plan
prepared by the Government to
delineate the precise boundaries
of the stool and family lands of
Weija clearly defined
Plaintiff’s land in the plan,
except it was marked as “FAK”
instead of “FKA”
It was Plaintiff’s further
contention that its grantor, the
Weija Stool had had its title
confirmed in various judgments
e.g. Manche Anege Akwei v
Manche Kojo Ababio IV (Accra
Water Works Acquisition) dated
24th July 1948 and
another judgment of the Full
Court dated 1924. Further, that
various portions of the land
acquired for public use by the
then Gold Coast Government paid
compensation to the Weija Stool
and no one else.
Plaintiff says the Defendant has
illegally entered onto portions
of its land and causing damage
and loss to Plaintiff
consequently necessitating the
Writ and Statement of Claim.
The Defendant conversely denies
the Plaintiff’s claim and
asserts that he acquired the
property from his grantors the
Ngleshie Amanfro stool who took
him to the Chief of Weija Nii
Anto Nyame II and his elders
since they are “allied families”
and the Weija Chief agreed to
make a grant to him of the land.
Defendant further says that he
made an initial payment to the
Ngleshie Amanfro Family and
subsequently made further
payments to the Weija Chief and
his Elders for the land. The
Defendant further contends that
even though Weija Stool was
adjudged owner of the lands, the
Government has nonetheless not
released the land to the Stool
and therefore Plaintiff cannot
claim the land as the land is
still plotted in the name of the
Government.
The trial judge after hearing
entered judgment for the
Plaintiffs on all the reliefs
endorsed on his writ.
Aggrieved by the decision of the
trial court the Defendant filed
an appeal in the Court of
Appeal.
1
GROUNDS OF APPEAL
1.
The judgment is against the
weight of the evidence
2.
Having regard to the state of
pleadings and the evidence
adduced during the trial, the
court erred in entering judgment
for the Plaintiff.
3.
Further grounds will be filed on
receipt of record of proceedings
The Court of Appeal dismissed
Defendant Appellant’s appeal and
affirmed the decision of the
Court below.
Further aggrieved, the Defendant
filed a further appeal to the
Supreme Court.
2
GROUNDS OF APPEAL
The Judgment is against the
weight of the evidence.
As held by their Lordships in
Tuakwa v Bosom [2001-2002]
SCGLR 61,
“an appeal is by way of
re-hearing, particularly where
the Appellant alleges in his
notice of appeal that the
decision of the trial court is
against the weight of the
evidence… In such a case, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that on
a balance of probabilities, the
conclusions of the trial judge
are reasonably or amply
supported by the evidence”.
3
It is also provided in the
Evidence Decree, 1975 (NRCD
323) Sections 11 and 12
as follows:
11(4) In other circumstances the
burden of producing evidence
requires a party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the fact was more
probable than its non-existence
12(1) Except as otherwise
provided by law, the burden of
persuasion requires proof by a
preponderance of the
probabilities.
12(2)"Preponderance of the
probabilities" means that degree
of certainty of belief in the
mind of the tribunal of fact or
the court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.
4
EVIDENCE
On the evidence, the Plaintiff
acquired the tract of land
customarily in 1980 from the
Weija Stool. Defendant tries to
counter this in his statement of
case in the Court of Appeal as
to the age and financial
background but led no evidence
in the trial Court to show that
the circumstances of the
Plaintiff witness was such that
it was impossible for him to
acquire such a large piece of
land.
Defendant on the other hand
admits in his evidence that he
initially acquired the land from
the Amanfro Stool who later led
him to Weija to have the
conveyance affirmed or
regularised.
5
The main issue for
the Court to determine will
simply be that on a
preponderance of the
probabilities, whose story is
more probable than not.
It is not surprising that the
trial Court found for the
Plaintiff.
Firstly, Plaintiff testifies
that its Managing Director was
granted the land customarily in
1980 by Weija Stool. This was
not challenged in any particular
by the Defendant, who also
admitted that the land belonged
to Weija by his being led there
by the Elders of the Amanfro
Stool to have his conveyance
regularised. If Plaintiff’s
Managing Director was granted a
customary conveyance, then even
the Weija Stool had no more
claim to the land and therefore
had nothing to give to the
Defendant Appellant.
Case of DOVIE & DOVIE v
ADABANU [2005-2006] SCGLR 905
by their Lordships as follows:
“An effective Customary
conveyance divested the grantor
of any further right, title or
interest in the land to convey
or grant to a subsequent
grantee”
6
Further, pertaining to the issue
of the identity of the land, the
Court appointed Surveyor in his
report tendered to the Court on
the 7th of April 2005
testified that about 85% of the
land being claimed by Defendant
fell within land being claimed
by Defendant, that the Cadastral
Plan submitted by the Plaintiff
conforms to what he surveyed
whilst that of the Defendant had
huge displacements. This is a
crucial piece of evidence coming
from an independent witness.
7
Plaintiff also obtained
judgement against the elders of
the Amanfro Stool as evidenced
by Exhibits C,D & E. All these
exhibits were tendered without
objection and in Exhibit C, the
Judge states that he ordered
hearing notice to be served on
the Defendants to contest the
proof of title and assessment of
damages and this was duly done
but Defendants failed to appear
to challenge the title. These
judgements still stand as they
have not been set aside and
these judgments therefore proves
a good title to the land.
8
Also Plaintiff tendered through
Defendant witness Exh O which is
a letter of consent to sublet
and assign dated 31st
July 2000. And recited in this
letter is the schedule of the
land of Plaintiff measuring
95.149 acres. If Plaintiff had
not been granted this land, it
is difficult to surmise how the
Chief and elders would have
given approval to sublet and
assign the land.
9
It is also noteworthy that the
dispute over the land began only
after the death of the Chief of
Weija and the conveyance to the
Defendant was made by the acting
Mankralo of the Weija Stool. The
Wulomo of the Stool as Defendant
Witness gave evidence that the
only reason for the Plaintiff
being on the land was because he
had been made a caretaker of
the lands by the stool. With all
due respect, this beggars
belief, and as was put to him in
cross-examination by Plaintiff
Counsel, this was highly
improbable as Plaintiff MD was a
stranger to the stool and could
not have been made a caretaker
for such a large tract of land.
The only reasonable inference to
be drawn here is that some
Elders of the Weija Stool
colluded with the Defendant
after the death of the Chief to
deprive Plaintiff of the land.
10
The Defendant in the Court of
Appeal argued that the Plaintiff
witness’s testimony was full of
inconsistencies and therefore
must be discredited. An example
of the inconsistencies he gave
was the fact that Plaintiff
testified that he had acquired
64 plots from the Chief himself
which later turned out to be 60
plots. As stated by the Court of
Appeal, that inconsistency
cannot be fatal to Plaintiff’s
claim as it does not detract
from the fact that Plaintiff
bought the land in dispute from
the Chief and elders of Weija.
In the case of EFFISAH v
ANSAH [2005-2006] SCGLR 943,
the Court speaking through Wood
JSC (as she then was) held as
follows:
“In the real world, evidence led
at any trial which turned
principally on issues of fact,
and involving a fair number of
witnesses, would not be entirely
free from inconsistencies,
conflicts or contradictions or
the like. In evaluating evidence
led at a trial, the presence of
such matters per se, should not
justify a wholesale rejection of
the evidence to which they might
relate. Thus in any given case,
minor, immaterial, insignificant
or non-critical inconsistencies
must not be dwelt upon to deny
justice to a party who had
substantially discharged his or
her burden of persuasion. Where
inconsistencies or conflicts in
the evidence were clearly
reconcilable and there was a
critical mass of evidence or
corroborative evidence on
crucial or vital matters, the
court would be right to gloss
over those inconsistencies.”
Finally, in the Supreme Court,
Defendant’s appeal is based on
the solitary ground that the
Appeal is against the weight of
the evidence.
The Defendant especially argues
that as it was never established
that the Plaintiff i.e. F.K.A
Company had a prior grant in
1980, the trial judge and the
Appeal Court were in error in
holding that the land belonged
to the Plaintiff. He further
cited the case of Salomon
v Salomon [1897] AC 22
to buttress his point by saying
that the Company had a separate
legal entity from that of its
Managing Director, and since
Plaintiff Company was not
incorporated until 1998, it was
wrong to hold otherwise.
The evidence on record shows
that the Defendant acquired two
separate tracts of land from the
Amanfro Stool in 1993 and 1996.
From the report of the Surveyor,
these two tracts fell squarely
in the cadastral plan of
Plaintiff. In 2000, he acquired
another tract from the Weija
Stool. For this land, it was
only 8% of it which fell within
Plaintiff’s land. Inferentially,
it could be said that since the
land did not belong to the
Amanfro Stool, they could not
know what had been alienated and
what had not been but the Weija
Stool were aware of what had
been granted that was why what
they granted to the Defendant
had an error of only 8%.
It was found by the trial judge
that indeed all the lands
belonged to the Weija stool so
the principle of nemo dat non
quo habet comes into play
here. The Amanfro stool could
not have alienated lands it
never had in the first place.
On the evidence, as Plaintiff
witness had acquired the land
customarily in 1980, there was
even no need for him to go back
to the Stool to have the
Conveyance drawn up in
Plaintiff’s name.
Dovie & Dovie v Adabanu
relying on Hammond v Odoi
[1982-83] 2 GLR 1215 @ 1304 held
thus:
“No document is necessary to
effectuate the customary
purchase, given that customary
law knows no writing. And the
conveyance made in accordance
with customary law is effective
as from the moment it is made. A
deed subsequently executed by
the grantor to the grantee may
add to but it cannot take from
the effect of the grant already
made at customary law”
Effisah v Ansah [2005-2006]
SCGLR 943
“It was well settled that an
appellate court might interfere
with the findings of a trial
tribunal where specific findings
of fact might properly be said
to be wrong because the tribunal
had taken into account matters
which were irrelevant in law; or
had excluded matters which were
crucially necessary for
consideration; or had come to a
conclusion which no court,
instructing itself in the law,
would have reached; and where
the findings were not inferences
drawn from specific facts, such
findings might be properly set
aside. As a corollary, a second
appellate court had power to
restore primary findings of fact
and right conclusions which
might have been unjustifiably
set aside by a first appellate
court.”
On an evaluation of the evidence
as a whole, the judgment of both
the trial court and the Court of
Appeal cannot be disturbed as
the evidence supports the
findings made. In the
circumstances the appeal fails
and the same is accordingly
dismissed.
G. T. WOOD (MRS)
(CHIEF JUSTICE)
ANSAH JSC.
This is an appeal against the
judgment of the Court of Appeal
dated 6th March 2007
which affirmed the judgment of
the High Court, Accra,
dismissing an action by the
plaintiff therein, the appellant
before us. The action was by its
nature, one for a declaration of
title to land coupled with the
ancillary
The facts which gave rise to the
action in the High Court, as
well as the evidence and the
issues at stake have been stated
in the judgment read by the
learned Chief Justice which I
agree with. I only wish to add a
few words of my own by way of
contribution to the judgment
aforesaid. I may not repeat them
here except as and when it
becomes necessary for me to do
so.
The duty of an appellate court
in an appeal on this ground was
stated by this court in its
unanimous judgment delivered by
our esteemed sister, Akuffo JSC,
in Tuakwa v Bosom
[2001-2002] SCGLR 61 where
she said at page 65 of the
report:
“..an appeal is by way of a
re-hearing particularly where
the appellant….. alleges in his
notice of appeal that, the
decision of the trial court is
against the weight of the
evidence. In such a case,
although it is not the function
of the appellate court to
evaluate the evidence for the
veracity or otherwise of any
witness, it is incumbent upon an
appellate court, in a civil
case, to analyze the entire
record of appeal, take into
account the testimonies of all
documentary evidence adduced at
the trial before it arrived at
its decision, so as to satisfy
itself that on a preponderance
of the probabilities, the
conclusions of the trial judge
are reasonably or amply
supported by the evidence.”
The issue was could the
criticism against the judgment
of the Court of Appeal be
justified? The answer lay in the
strength of the submissions in
support of or against the
appeal.
The appellant submitted the
recital in the plaintiff’s
document of title in Exhibit B
was false for in 1980, the
Company had not been
incorporated and was not in
existence by then. Therefore the
Court of Appeal committed an
error when it affirmed the
finding of fact by the trial
court that the grant was made to
the plaintiff respondent company
in 1980.
The evidence led by both sides
must be examined to see whether
or not it supported the decision
by the Court of Appeal.
In its amended
statement of claim the plaintiff
pleaded that:
“3 Plaintiff company says that
long before Plaintiff Company
was incorporated, its Managing
Director, namely, Frederick Kofi
Asare acquired a large tract of
land by way of customary grant
from the Weija Stool represented
by its chief Nii Anto Nyame II.”
The defendant denied this
averment and pleaded that when
the plaintiffs Managing Director
went to the land he had been
there already.
What did the Exhibit B say in
connection with all this?
The recital had it that:
“And whereas in 1980 the Weija
Stool made a customary grant of
the land hereinafter described
to he lessee but no deed was
executed in favour of the
lessee: AND WHEREAS the lessee
has now made a request to the
Weija Stool for a deed of
conveyance to evidence the said
customary grant…”
The lessee in Exhibit B was
F.K.A. Company Ltd., the
plaintiff respondent herein.
In his evidence in chief, the
plaintiff gave evidence through
its Managing Director and said
it was in 1980 when he paid ¢60m
to the chief of Weija and his
elders for 95,194 plots of land.
When in 1998 he formed a company
he told the chief to prepare
documents in the name of the
company; that was how Exhibit B
came to be prepared in the name
of the company as the lessee.
Reading the evidence on record
as a whole, the chronology of
events was that in 1980, the
Managing Director of the company
took a customary grant of the
plots of land from the Chief of
Weija and paid for it. No
documents were prepared for him.
In 1998 he incorporated his
company and requested the Chief
to prepare a deed of conveyance
for him but in the name of the
company. Exhibit B was
accordingly prepared. In other
words what was begun in 1980
towards the acquisition of the
land was consummated when
Exhibit B was prepared. There
was no variation of the contents
of Exhibit B by the evidence led
by the respondent for the
evidence sought only to
expatiate on the circumstances
surrounding the acquisition of
the land the first step for the
plaintiff to take to discharge
the onus on him to be entitled
to the declaration he sought
from the court. The criticism by
the appellant to the effect that
the plaintiff varied the
contents of Exhibit B was not
justified and is rejected.
The plaintiff also tendered
Exhibit O through the DW1, Nii
Kofi Okine II, the Seitse or
Stool father of Weija, a
signatory to the document,
relevant portion of which
document was that:
“The Weija Stool hereby grant
(sic) consent to FKA Company
Limited to assign portions of
the land granted to the said
company by a Lease which land is
more or less more particularly
described in the schedule
below.”
The lease was tendered in
evidence as exhibit B
Laying the foundation for the
tendering of the exhibit O, the
DW1 said that the grant of the
land was made to the company,
(which was to say), the
plaintiff. That would
corroborate the evidence of the
Managing Director and the case
of the plaintiff company and the
rule of law was:
“Where the evidence of one party
on an issue was corroborated by
a witness of his opponent
whilst that of his opponent on
the same issue stood
uncorroborated even by his own
witness, a court ought not to
accept the uncorroborated
version in preference to the
corroborated one unless for some
good reason (which must appear
on the face of the judgment) the
court found the corroborated
version incredible or
impossible: see the dictum of
Ollennu J (as he then was) in
Tsrifo v Dua VIII [1959]GLR 63
at 64-65 as applied in cases
like Osei Yaw v Domfeh [1965]
GLR 418, at 423, SC; Asante v
Bogyabi [1966]GLR 232 at
240-241, SC and In Re Ohene
(Decd); Adiyia v Kyere [1975]2
GLR 89 at 98, CA.” see Banahene
v Adinkra [1976]1 GLR 346 at
350 per Anin JA (as he then
was).
The case of the plaintiff was
accordingly corroborated by the
DW1 and the facts that emerged
from the oral and documentary
evidence were that the Managing
Director of the plaintiff
Company, in the person of
Frederick Kofi Asare, took a
customary grant of the land in
dispute from the Weija Stool in
1980 and when he formed the
company in 1998, he asked the
Stool to prepare documents of
title in respect of the land in
he name of the company and what
was done was the evidence in
Exhibit B.
The Court of Appeal could not
have erred when it affirmed the
judgment of the trial court
based on these findings of fact
by the trial judge for they were
supported by the evidence on
record that the Weija Stool
granted the land in dispute to
the plaintiff company, in 1980.
Therefore, when the same stool
purported to grant title to the
same land to the defendant
appellant in 1999, as per the
indenture in Exhibit 1, it had
divested itself of title to the
land and had nothing to pass to
the defendant appellant
according to the “Nemo dat
quod non habet” principle.
Consequently, the defendant took
nothing from the Stool.
In his judgment the
late Kofi Akwaah J said
considering a plan of the
disputed land:
“Now this court ordered that a
composite plan be prepared for
the consideration by the Court.
This was duly done and accepted
by the Court. From the report
submitted by the Survey
Department, it is clear that all
the three (3) different parcels
of land shown on the ground by
the defendant to be his actually
fall squarely within the land
shown by the plaintiff.”
The learned judge, now of
blessed memory, took pains to
study the site plan and drew
inferences from it. He went on
to make decisive holdings,
namely, that the Weija Stool
exercised suzerainty over the
Amanfro Stool and secondly, a
grant by the Weija Stool is
superior to any grant by the
Amanfro Stool.
Furthermore, he held that:
“I hold further that plaintiff
has a valid grant from Weija
Stool and that the Weija Stool
by its registration, has
divested itself of this land in
favor of the Plaintiff and thus
cannot validly make any grant of
any portion of this land to
anyone else, defendant included.
Defendant therefore cannot lay
any claim to any part of this
land.”
The appellant has not challenged
the validity of this material
statement of the law in this
appeal and I affirm it.
The trial judge had both oral
and documentary evidence before
him to guide him to determine
the pivotal issue as to which of
the parties was better entitled
to the area in dispute and also
whether or not the plaintiff was
entitled to the remedies he
sought from the court.
He carefully considered the
evidence before him and made his
findings of facts and concluded
that the plaintiff succeeded on
his claims and entered judgment
for him accordingly. The Court
of Appeal concurred in the
judgment of the trial court.
As a matter of law, where the
Court of Appeal confirmed the
judgment of the trial court the
principle of law which has
guided this court in considering
appeals against concurrent
judgments of lower courts has
been stated several times over
so that it is well ossified into
the judgments in cases like
Ntiri & Another v Essien
& Another [2001-2002] SCGLR
451 where Bamford-Addo
JSC said at page 459 that:
“In this case, there has been
concurrent finding of fact by
two lower courts and in such
circumstances an appellate court
would not interfere with
concurrent findings of fact
unless it can be shown that
there has been a patent error on
the facts which had resulted in
a miscarriage of justice. As to
when an appellate court would
overturn the concurrent findings
of fact made by the lower
courts: see the following case
which sets out the conditions
under which the Supreme Court
will interfere with concurrent
findings of fact made by lower
courts. The case of Obrasiwa
v Out [1996-97] SCGLR 618,
where the Supreme Court held (as
stated in the head note), in
dismissing the appeal from the
decision of the National House
of Chiefs, that:
“where the lower court appellate
court had concurred in the
findings of the trial court,
especially in a dispute, (the
subject matter of which was
peculiarly within the bosom of
the lower courts or tribunals,)
a second appellate court would
not interfere with the
concurrent findings of the lower
courts unless it was established
with absolute clearness that
some blunder or error which had
resulted in a miscarriage of
justice was apparent on the face
of the way the lower tribunals
had dealt with the facts. The
errors would include: an error
on the face of a crucial
documentary evidence; and a
misapplication of a principle of
evidence and; finally, a finding
based on n erroneous proposition
of law such that if that
proposition was corrected the
finding would disappear.
However, it was not enough that
the blunder or error per se was
established; it must further be
established that the said error
had led to a miscarriage of
justice. Achoro v Akanfela
[1996-97] SCGLR 209 …”
Koglex Ltd (No.2) v Field [2000]
SCGLR 175
was a further explanation of the
principle governing appeals
against concurrent findings of
fact by lower courts.
A reading of the record shows
the findings of fact made by the
trial court were amply supported
by the evidence on record and
therefore an appellate court
must be loath to interfere with
a judgment based on those facts.
A second appellate court must be
satisfied there was or were
errors in the judgments of the
lower courts before it might
allow an appeal premised on the
ground that they were against
the weight of evidence. The
appellant did not succeed in
discharging this burden on him.
The judgments of the lower court
are affirmed. The appeal is
dismissed.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
T. K. ADZOE
(JUSTICE OF THE SUPREME COURT)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
S. K. ASIAMAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
HENRY ORACCA TETTEH FOR
PLAINTIFF/RESPONDENT/RESPONDENT
PETER BOAFO FOR THE APPELLANT |
