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 |