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HENRY NIMAKO-BREMPONG v. JOYCE B. AKADZA & ANOR [30/1/2003] CA/NO. 8/2002

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA — GHANA

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CORAM: ANSAH, JA. (PRESIDING)

ANINAKWAH, JA.

TWENEBOAH-KODUAH, JA.

CA/NO. 8/2002

30TH JANUARY 2003

HENRY NIMAKO-BREMPONG               :               PLAINTIFF/RESPONDENT

VRS.

JOYCE B. AKADZA & ANOR                   :               DEFENDANTS/APPELLANTS

_________________________________________________________________________________________

 

JUDGMENT

ANSAH, J.A.:

The plaintiff endorsed his writ with claims for:

1) "An order that the part of the perimeter wall around 1st Defendant's house at Nungua-Buade in Accra straddles or is built on the space demarcated as part (western) part of the access road lying and being between the first defendant's said house and that move freely to and from his (plaintiff's) said house.

2) General damages".

The parties are adjoining landowners and the case for the plaintiff was that the space between their houses was demarcated for an access road by the authorities. The first defendant built and extended her fence wall onto the access road so much that it was only about a meter away from the house of the plaintiff. As a result vehicular movement to and from the plaintiffs' house through the access road became impossible. The plaintiff said he made a report to the 2nd defendant who confirmed that the first defendant wrongfully erected her wall at where she did and marked it for removal. The first defendant did not remove her wall and the second defendant did not compel her to comply with the order to remove it either. The plaintiff complained that action of the first defendant was a cause of nuisance, embarrassment, inconvenience and costs to him. For a redress, he put in the claims mentioned above.

The defendants resisted the plaintiffs claims. The first claimed that when she started her building operation in 1989, the layout plan of the area did not indicate that any access road passed through her land. She went on to have a quit and peaceable enjoyment and possession of her land till 1997 when she noticed that the plaintiff had also started his building operation on an adjoining piece of land. Where she had her building was not part of any access road.

At the summons for directions, the issues agreed upon for trial were simply “1. Whether or not an access road has been demarcated as lying between plaintiff’s and 1st defendant’s respective houses at Buade” and “2. Whether or not the 1st defendant has in any way built on an access road or part thereof”.

The learned trial judge took evidence from the parties and in his judgment upheld the plaintiff’s claim. He ordered that the first defendant should remove her wall or the plaintiff should do so in order that both parties uses the access road, to get to their respective houses.

Dissatisfied with the decision, the first defendant brought an appeal against it before this court. I shall now call the plaintiff the respondent and the first defendant, the appellant. Originally only one ground of appeal was filed. It was the omnibus ground that the judgment was against the weight of evidence. The additional grounds were that:

1) The trial judge erred in law by not dismissing the plaintiff’s writ of summons as being inappropriate by virtue of the nature of the reliefs claimed and the evidence adduced.

2) The trial judge erred in law by not applying to the plaintiff the law on the acquisition of Building Permit, particularly, Regulations 3 and 7 of the National Building Regulations, 1996, (LI 1630.)

3) The trial judge misdirected himself by entering judgment for the plaintiff/respondent when the plaintiff/respondent had not asserted his title to the plot of land on which he built his house for which he wanted an access road through the 1st defendant's land.

(4) The trial judge failed to make proper findings of fact because he adopted a wrong procedure at the locus in quo inspection".

The appellant submitted that the joinder of AMA as a second defendant was wrong for the reason that if the aim was to compel it to demolish the first defendant's wall, then his remedy was to apply to the High Court for an order of mandamus and not to issue a writ of summons. What was more the defendants did not do anything jointly and severally for which they should be sued jointly and severally. For having done so, the plaintiff's action was inappropriate, incompetent, misconceived and not properly before the trial court. The reply to this submission was that from the relief sought from the court, the procedure adopted by the plaintiff was proper. Whether or not the respondent erred in joining the parties together as he did, is a matter adequately answered by the law.

Under LI. 1129, misjoinder, non-joinder are not fatal or decision and every case must be determined on its merits as they relate to the parties before them: See Order 6 (1) of the High Court (Civil Procedure) (Amendment) (No.2) Rules l977, LI. 1129.

The procedure a party ought to follow must not be divorced from the relief he seeks from the court. In other words they are mutually intertwined. Generally, under Order 2 rule 1 of the High Court Procedure Rules, 1954, (L.N. 140A), all actions are commenced by a writ of summons. The other forms known and recognized by the rules apply to specific subject matters and reliefs. Thus the prerogative orders follows their own procedures and except where one seeks any of those orders, one has no need to resort to the procedure specified under those rules. The respondent went to court for the specific remedies stated above, namely, an order for the first defendant to demolish her fence wall to enable him gain easy access to his house. The other relief was for damages against the defendants for causing the nuisance to him. Undoubtedly, there were two defendants to the action; only the second was a public authority. Most undeniably the prerogative orders lie against public officers to compel them to effect or discharge their public functions: Mould v. de Vine [1962] 1 GLR 533 and IN RE A COMPLAINT TO POLICE BY BOTWE AND MENSAH, [1957] GLR, 457. Such an order will not lie against a private individual like the first defendant. Secondly, general damages are not pursued upon a prerogative, writ; they are awarded upon a writ of summons. Where there are two or more defendants and one of the two reliefs sought from the court is cognizable under one particular mode of commencing an action and the other is not, such as in this case, it is reasonable to commence the action by a writ of summons. Where a particular mode of commencing an action cannot be used because it would not apply to one of two or more defendants then it is reasonable to commence the action by a mode that generally applies to all actions. In the peculiar circumstances of this case, it was more reasonable to commence the action under the general mode of commencing an action than by any other. Because of the fact that the respondent did not seek an order of mandamus against the second defendant or any of the defendants, and also because there was also a claim for damages, the respondent did the right thing when he came to court by a writ of summons.

In the result additional ground one fails. Above all, it cannot be gain said that prerogative. Above all, it cannot be again said that the respondent had the choice to issue a writ of summons or seek a remedy under the prerogative orders but this must not does not depend on the circumstances of he had to explain. He made the claim and this action should fall or stand according to the merits of the case. The substance of additional ground two was that the judge erred in not applying the effect of regulations 3 and 7 of the National Building Regulations, (L.I 1630).

Those regulations required that an applicant for a building permit has to satisfy the District Planning Authority that he has a good title to the land. The converse is that an applicant who has no such good title will not have his application granted. Counsel submitted that the respondent failed to prove that he had a good title to the land on which he built his house. He did not produce the building permit he said he had, an indenture or a Land Certificate. I understand counsel to be saying that the respondent did not show or prove that he had any good title to the land on which he built his house so he had no building permit. I think the evidence showed that even though the respondent did not tender any building permit in evidence, he said in his oral evidence that he had one. On this, he was corroborated by the PW 1, a geodetic engineer of the AMA This witness went as far as quoting the permit number being No. 323/97. The remarkable thing about the evidence of PW1 on this was that there was no cross-examination on it by counsel for the appellants. The law was settled that where a party gives evidence but was not cross-examined on it, the inference was that what he said was admitted albeit sub silentio. What has been admitted requires no further proof.

All things considered, it is very doubtful if there was a real need for the respondent to produce a building permit in the circumstances of this case. At the center of the dispute that sent the parties to court was whether or not the first defendant’s fence wall obstructed and impeded the access of the respondent to his house. That was the issue that the trial judge had to grapple with. To resolve that issue, it was not necessary for the applicant to produce a permit to build his house or at where he did. The onus was rather on the defendant to show that where he put up the fence wall was where she was permitted by the authorities to do so. The central issue could be disposed of by looking at the layout to see if any access road had been earmarked for the area and if so whether or not the first defendant’s wall sat or straddled it. Title to the land on which the respondent’s house was, was of no moment as that was neither in dispute nor was ancillary or incidental to it. This was not an action for trespass to land; it must be borne in mind. In short therefore, additional ground 2 did not weigh favourably with me; I am of the view that it was irrelevant and was not meritorious. I unhesitatingly dismiss it. So do I extend the same consideration to additional ground 3 which I think is substantially the same as the ground just dismissed. I also dismiss that ground.

The ground of appeal that seemed to call for a little consideration was ground 4. Even there, I think that ground could be taken together with the original ground that the judgment was against the weight of the evidence. The question raised is what is the proper procedure to adopt by the court in a visit to the locus in quo? The most authoritative statement on the practice on inspection of a locus in quo was made in the Practice Note on Gblevi Family v. Amanie [1961] GLR 1 at pp 1-2. I have decided to refer at length to what was said in that note as counsel submitted that neither the registrar nor the judge himself adopted the procedure therein enshrined. It was that:

“The court should be accompanied by the parties and any relevant witnesses to the inspection. The parties or the witnesses there point out such places and things, which are material to the case, etc. If certain other persons who may assist the court in arriving at a decision in the matter are found on the land, but who have not given evidence in the court, are heard, those other persons should be asked to appear before the court when it re-assembles.

Then when the court re-assembles all the persons who were used at the view must be put in the witness box, and on oath state what part they took in the recent visit to the locus and what each did.

The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are called by the court itself, and at that stage must be deemed to be witnesses called at the instance of the court.”

Gblevie Family v. Amanie (supra) was applied in Mansah v Donkor [1980] GLR 825 at p 829. I fail to see in what respect the trial judge or the registrar did not follow the procedure in that case, which compels me to draw the attention of counsel to that fact that it was not enough to cite a case in an address without specifying how relevant it was either on a point of law or the facts of the case in point. Where the allegation or complaint was that a procedure was not followed, counsel owe it a duty to tell the appellate court how the failure occurred. This would enable the appellate court determine the chances of the appeal succeeding at least on that ground. That was very much so where the case relied upon mentioned more than one procedure or what was to be done at the inspection.

Viewing a locus in quo affords an opportunity for the court to see at first hand, what the real facts are on the ground. It aids and provides the court an avenue for resolving disputes. It is all the more so where there are no plans of the area drawn and tendered in evidence. Thus, in Amane v. Kwabla [1975] 1 GRL 417, the court said at p 421 that: “When a court embarks upon an inspection of the locus in quo it does so as part of the process in the hearing of the case; it is a continuation of the hearing by substitution of its eye for the ear in the reception of evidence”. I shall presently come back to this case in another context. Another reason for such visits is where plans would not be enough to help in resolving the dispute. In this case for example, the issue was where the fence wall was on the ground. A mere plan of the area would not be enough to tell the court where it was. The judge was right in exercising his discretion to go to the scene to see things himself as they were on the ground; together with the oral and documentary evidence before him, he would be in a good position to resolve the dispute before him.

If I have any criticism about how the judge handled the visit, it was how he asked the Registrar of the court to inspect the land and submit a report to him. It was imperative that the judge visits the area in dispute in person instead of allowing any body to do so for and on his behalf. I point it out that such visits are part of receiving evidence that would assist the court in discharging its duty of finding what the primary facts of a case before him are. This must not be delegated to any person at any stage of the proceedings. It was not so in this case and I must express my disapproval of how the judge abdicated his functions to his registrar. This is not without a precedent for a similar situation occurred in Amane v. Kwabla (supra) where the trial magistrate commissioned his court clerk and an assistant registrar to inspect the land in dispute. The appellate High Court deprecated such a procedure on the ground that it amounted to altering the constitution of the court, an act that had the effect of nullifying the trial. I hope that judges (be they at the trial or appellate level), who are desirous of visiting an area in dispute would not follow this practice or procedure by asking their court clerks or registrars or any other official to carry out an inspection on their behalf and submit reports on them for their use in court.

Whatever one can say against how the registrar went to the area in dispute, what he did carried no weight for the trial judge eventually went to the scene himself and thereby obliterated whatever the registrar did. It also did not appear from the judgment that what the registrar did influence the judge in any way. There was an error in what the judge did at first when he asked the registrar to inspect the land and submit a report on it, but it was of no material significance as to be a good ground of appeal. I have no hesitation to dismiss that ground of appeal as well.

The grounds that the judgment was against the weight of evidence and that the judge failed to make proper findings of facts deserve some comments and would be taken together. An appeal on these grounds is known to the law and its meaning has been determined in Fofie v. Zanyo [1992] 2 GLR 475, SC; Akufo-Addo v. Cathline [1992] GLR 377, SC. In Fofie v. Zanyo (supra), the principles upon which this appellant court proceeds to disturb findings of facts made by a trial court are stated. The Supreme Court said that:

“The Scope and the extent to which an appellant tribunal is permitted to interfere with findings of facts made by a trial tribunal are now too well settled to admit of any dispute. The right is subject to the exclusive preserve of a trial tribunal to make primary findings of fact, and where such findings of fact are supported by evidence on record and are based on the credibility of witnesses when the trial tribunal has had the opportunity and advantage of seeing and of observing their demeanor and has become satisfied of the truthfulness of their testimonies touching on any particular matter in issue, and also where such findings cannot be said to be wrong, it is incompetent for an appeal court to interfere:—

See Oppong Kofi v. Fofie [1964] GLR 174, SC, Praka v. Ketewa [1964] GLR 423, SC; Azagba v. Negov [1964] 450, SC and Asibey III v. Ayisi [1973] 1 GLR 102.

Other cases worth mentioning in connection herewith are Doku v. Doku [1992-93] 1 GBR 367 CA, and Nsiah v. Atuahene [1992-93] 1 GBR 897, CA. Where appellant court could conclude from the evidence or jugment that the findings are not supported by the evidence, or that the preponderance of the evidence heavily weighs against the findings, or the inferences from the facts were wrong and the judgment was against the weight of the evidence it would disturb it.

In such a situation the appellant court would not be precluded from setting aside the findings made and come out with its own. Admittedly, the trial judge did make some findings of facts that were basic and relevant to the issues at stake. It was undisputed, as I have said that the pivotal issue in the case was whether or not the defendant’s fence wall was erected on a piece of land earmarked for an access road in the area and for public use. Who owned that place was irrelevant in this wise. It was also irrelevant whether or not any of the parties, i.e., the appellant or the respondent had a better title to the land or a permit to put up a building on that piece of land. Where owners of adjoining houses dispute over such an issue in court chances are that each would assert strenuously that he was in the right. In such a situation, the evidence of neutral persons like the proper authority to make such demarcations for access roads in the area is often decisive provided it could scale over all the tests of admissibility and weight of evidence. That kind of evidence was put before the judge. There was the oral evidence of the geodetic engineer, PW 1, Mr. Fred Aboagye Larbi and the documentary evidence in exhibit A, the planning scheme to consider. I have deemed it fit and proper to quote a chunk from the evidence of the PW 1 now, for it was very material. He said:

"My finding showed that there was 20 feet access land in front of plaintiff's land and a fence wall has been erected to block the access lane. I made a plan of whole (sic) I found on the ground; the ground situation.”

That plan was Exhibit G accepted without any objection. Later on, the PW1 went on to say in his evidence under cross-examination that the first appellant had built on what should be an access road and that if her wall was removed, the 20 feet land would be there.

In his judgment, the trial found as facts that “by the general layout of the area, Nungua-Buade, there is a 20 feet access lane between plaintiff’s land and that of 1st defendant’s land. I also find as a fact that part of 1st defendant’s wall is constructed on the said access lane. This has made it IMPOSSIBLE for any vehicular movement into plaintiff’s house.”

The learned judge went on from there to enter judgment in favor of the respondent and also made an order for the wall on the 20 feet of land on the access road to be removed by the first appellant or pulled down by the respondent (plaintiff) to enable both plaintiff and 1st appellant use the access road to their respective houses. Costs were awarded against only the appellant, not jointly and severally. No order was made against the second defendant.

An appeal is by way of re-hearing, see Order 8 rule (1) of the Court of Appeal Rules, 1997, C.I. 19. What this means is that “the appeal is not limited to a consideration whether a misdirection or a misperception of evidence or other alleged defect in the trial has taken place in the trial, so that a new trial should be ordered. They indicate that the court is not even limited to consideration of the points raised in the notice of appeal but will consider the whole of the evidence given in the court below and the whole course of the trial. On these Orders 31 and 32 of the Court of Appeal Rules, C.I. 19, are loud and clear, as the general powers of this Court.

A study of the evidence as a whole reveals that the judge did not fail to discharge his duty of making primary findings of facts. I find no fault with what he did. Where the evidence supports the judge, such as in this case, an appellant court would be hard put to reverse his findings. His judgment should find favour with the appellant court. None of the grounds of appeal impresses this court and they are rather dismissed as lacking any merit. The judgment of the court below is affirmed and the appeal dismissed.

Everybody is entitled to have an easy and unimpeded access to his property and where the right is violated the person has a right to seek a remedy in a court of law. The plaintiffs action is in the right direction and ought to succeed on the facts as it did in the Court below.

I have an observation or two to make by way of concluding remarks. For far too long the planning schemes of and for many of our cities and towns are flouted with impunity. Many developers put up houses at places where they should not be; in the process, access roads are closed, green belts disappear, and the environment loses its greenery and beauty. Gutters are choked impeding the free flow of water, causing floods at the slightest rainfall. It was high time the planning schemes for our towns and cities were strictly complied with in the larger interest of town and country planning. This is a call on the powers that be to strictly enforce their building regulations and to be ready to abate every nuisance in town. I believe this will not fall on deaf ears.

The appeal is dismissed.

J. ANSAH

JUSTICE OF APPEAL

ANINAKWAH, J.A.

I agree.

R. T. ANINAKWAH

JUSTICE OF APPEAL

TWENEBOAH-KODUAH, J.A.

I also agree.

K. TWENEBOAH-KODUAH

JUSTICE OF APPEAL

COUNSEL

C. K. HOEYI FOR THE APPELLANT

GEORGE KWABENG FOR THE RESPONDENT

 
 

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