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Land - Lease -
Declaration of title - Statutory
Declaration Trespass -. -
Recovery of possession - Whether
or not trial judge properly
admitted exhibit - Evidence on
the basis - Whether or not the
Court of Appeal did not
appreciate that the burden of
proof lies on the defendant
HEADNOTES
The plaintiff/appellant is
a limited liability company
engaged in estates development.
By its pleadings the company
averred that by virtue of a
lease dated the 25th
November 1995, between it and
one Alhaji Ibrahim Mensah
Komieteh of Teshie the company
as Lessee and Mr. Komieteh as
Lessor acquired a large piece or
parcel of land situate at Okpoi
Gonno, Accra covering an
approximate area of 75.53 acres.
Ibrahim MensahKomieteh derived
his root of title to the land on
the basis of a Statutory
Declaration. The company had
been in quiet possession of the
said land since it was demised
to it without let or hindrance
until the defendant/respondent
wrongfully entered the company
issued a writ of summons against
the defendant/respondent for the
reliefs of declaration of title,
recovery of possession, damages
for trespass and perpetual
injunction.
On his part the
defendant/respondent resisted
the action in a statement of
defence and counterclaim. In the
said statement of defence and
counterclaim, the
defendant/respondent averred
that he acquired two plots of
land from messrs Jacob Bortey
and George Bortey both of Nungua.
He immediately took possession
of same and proceeded to
construct the foundation for his
house where he currently lives.
It was around that time that the
plaintiff company appeared to
commence the demarcation of a
nearby site for its housing
project. he had completed his
house and roofed same without
any confrontation from the
plaintiff company The
defendant/respondent further
averred that later, one day, the
company’s managing director came
unto his (defendant’s/
respondent’s) land to stop his
workers by physically harassing
them and also brought some
soldiers wielding guns to
prevent the workers from getting
unto the land.
The
company’s managing director also
removed or caused to be removed
the roof of the
defendant’s/respondent’s
building which then exposed the
electrical and other interior
building materials The
defendant/respondent further
averred that the
plaintiff/appellant also rented
out his other or second plot to
a car washer to operate a car
washing bay. The High delivered
judgment in which it dismissed
the Plaintiff’s action and
entered judgment on behalf of
the 1st Defendant’s
counterclaim, As the Plaintiff’s
felt aggrieved by the decision
of the High Court, they appealed
against that decision to the
Court of Appeal. However, the
Court of Appeal, in a well
thought out and reasoned
decision dismissed the appeal it
its entirety
HELD :- In
conclusion the appeal herein is
dismissed in its entirety. The
Court of Appeal judgment of 31st
October, 2013 is affirmed save
for the variation in the payment
of appropriate filing fees on
the equivalent in GH¢ on the
$7000 pleaded in paragraph 8 of
the Defence and Counterclaim of
the 1st Defendant.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, 1975
(NRCD. 323)
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Mensah v Ghana Commercial
Bank, [1957] 3 WALR 123
In the matter of Land
acquired for the Service of the
Gold Coast Colony and Ashanti,
situate at Teshie and Nii Afotey
Adjin II, Nungua Mantse We,
Nungua and 5 others, decided on
26th May 1925
Agyei Osae and Others v
Adjeifio and others [2007-2008]
SCGLR 499
Ramsden v Dyson (1866) L.
R. 129.
Nii Boi v Adu [1964] GLR
410 and Boateng v Ntim [1961]
(Pt. 11) at 674
Asare v Brobbery [1971] 2
GLR at 366,
Amefinu v Odametey [1971]
2 GLR 135
Hammond v Odoi [1982-83]
1215
Nartey v Mechanical Lloyd
[1987-88] 2 GLR 314
Amuzu v Oklikah(1998-1999)
SCGLR 144
Asamoah v Servandzie
(1987-88) 1 GLR, S.C
Atta v Adu (1987-88) 1 GLR
235
Semorransinghe v Sbaiti
(1977) 2 GLR 442, C.A.
Achoro v Akanfela
[1996-97] SCGLR 209,
Akuffo-Addo v Cathline
[1992] 1 GLR 377 S.C
beng v Assemblies of God
Church, [2010] SCGLR 300,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
EDWARD
SAM CRABBE ESQ. FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.
J. AYIKOI OTOO ESQ. FOR THE
DEFENDANTS/RESPONDENTS/
RESPONDENTS
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
DOTSE JSC:
This is an appeal by the
Plaintiffs/Appellants/Appellants,
hereafter referred to as the
Plaintiffs, against the
unanimous judgment of the Court
of Appeal rendered on the 31st
day of October 2013 which
dismissed the initial appeal
lodged by the Plaintiff’s
against the decision of the High
Court dated 27th May
2011 which also dismissed the
Plaintiff’s action and entered
judgment for the 1st
Defendant/Respondent/Respondent,
hereafter referred to as the 1st
Defendant, on his counterclaim
as specified in the judgment
therein of 27th May
2011.
From the above rendition, what
strikes us in the face is the
fact that, the Plaintiff’s not
only lost the case at the High
Court, where judgment was
entered on behalf of the 1st
Defendant on his counterclaims
as specified, but also lost
their appeal against the High
Court decision to the Court of
Appeal. This in effect raises
the legal principles involved
where a party like the
plaintiffs lost the case at both
the trial court and the first
appellate court which confirms
in all material particulars, the
findings of fact made by the
trial court.
We will revert to the above
issues at the tail end of our
rendition in this case.
RELIEFS CLAIMED IN THE TRIAL COURT AND
BRIEF FACTS OF CASE
By an amended writ of summons in
respect of the writ filed on
24/6/2003 the plaintiff on 24th
November 2004, pursuant to an
order made on 3rd
November 2004 amended their writ
against the 1st
Defendant in the following
terms:
i. “Declaration of
title to all that piece or
parcel of land situate at
OkpoiGonno, Accra covering an
approximate area of 75.53 acres
and bounded on the North West by
Aviation highway measuring a
total distance of 1525 feet more
or less on the North East
Central link road measuring a
total distance of 280 feet more
or less on the East by a
proposed clinic and road
measuring 2100 feet more or less
on the South by an open space
measuring 1650 feet more or less
on the south East by an open
space measuring 8500 feet more
or less and on the West by the
school measuring 1200 feet more
or less.
ii. Recovery of
possession of the said land
trespassed on by the Defendant.
iii. Damages for trespass
iv. Perpetual injunction
to restrain the Defendant
whether by himself, his servants
or agents or otherwise howsoever
from entering or developing the
said land.
v. Any further or other
reliefs.”
The 1st Defendant
also counterclaimed against the
plaintiff’s the following
reliefs”-
a. “General damages for
trespass unto defendant’s land
as described in the schedule
hereto.
b. Recovery of
possession of his adjoining
property now leased out to a
third party and being used as
car washing bay.
c. Perpetual injunction
against further acts of
trespass.
Schedule
All that piece and parcel of
land situate at East Airport or
Okpoi Gonno Accra, bounded on
the North-West by the Aviation
Highway measuring 199.5 feet
more or less to the North-East
by a private property measuring
105 feet to the South-East
measuring 191 feet and
South-West measuring 197 feet
more or less more particularly
demarcated by survey pillars
SCCA G 13/01/1, SGGA G 13/01/2,
SGGA G 13/01/3, SGGA G 13/01/4
and occupying an area about 0.46
acres or 0.18 hectare.”
We have
perused the entire appeal
record, and found the rendition
of the facts of the case as
captured in the judgment of
Kanyoke J.A, speaking on behalf
of the Court of Appeal as
detailed enough and accordingly
quote same in support of our
narration of the facts.
“The
plaintiff/appellant is a limited
liability company engaged in
estates development. By its
pleadings the company averred
that by virtue of a lease dated
the 25th November
1995, between it and one Alhaji
Ibrahim Mensah Komieteh of
Teshie the company as Lessee and
Mr. Komieteh as Lessor acquired
a large piece or parcel of land
situate at Okpoi Gonno, Accra
covering an approximate area of
75.53 acres. Ibrahim
MensahKomieteh derived his root
of title to the land on the
basis of a Statutory
Declaration. The company had
been in quiet possession of the
said land since it was demised
to it without let or hindrance
until the defendant/respondent
wrongfully entered a portion of
the land and wrongfully
commenced the construction of a
building thereon. The company
averred that the
defendant/respondent had failed
to abate it’s acts of trespass
and to deliver up possession
despite several warnings but
rather wrongfully laid claim of
title to that portion of the
land. Consequently, on the 24th
day of June 2003, the company
issued a writ of summons against
the defendant/respondent for the
reliefs of declaration of title,
recovery of possession, damages
for trespass and perpetual
injunction.
On his part the
defendant/respondent resisted
the action in a statement of
defence and counterclaim. In the
said statement of defence and
counterclaim, the
defendant/respondent averred
that on the 25th
October, 1995, he acquired
two plots of land from messrs
Jacob Bortey and George Bortey
both of Nungua. He immediately
took possession of same and
proceeded to construct the
foundation for his house where
he currently lives. It was
around that time that the
plaintiff company appeared to
commence the demarcation of a
nearby site for its housing
project. According to the
defendant/respondent, by 1997,
he had completed his house and
roofed same without any
confrontation from the plaintiff
company whose managing director
and other employees used to pass
in front of his said house every
morning and evening on his or
their way to and from their
worksite. The
defendant/respondent further
averred that later, one day, the
company’s managing director came
unto his
(defendant’s/respondent’s) land
to stop his workers by
physically harassing them and
also brought some soldiers
wielding guns to prevent the
workers from getting unto the
land.
The company’s
managing director also removed
or caused to be removed the roof
of the defendant’s/respondent’s
building which then exposed the
electrical and other interior
building materials to the
vagaries of the weather and rain
thereby causing loss of
US$7,000.00 he spent in
replacing those materials. The
defendant/respondent further
averred that the
plaintiff/appellant also rented
out his other or second plot to
a car washer to operate a car
washing bay. Accordingly, the
defendant/respondent
subsequently applied to join and
did join that person as a
co-defendant to the suit. “
emphasis supplied
It must
be noted that, both parties
herein, to wit the Plaintiff’s
and the 1st Defendant
testified. Whilst the
Plaintiff’s were represented by
Ernest Akuako their
Administrative Manager who
testified on their behalf, and
thereafter closed their case,
the 1st Defendant
testified on his own behalf and
called D.W.1, Nii Alabi Gbele
II, Chief of Sakumono as a
witness. However, it is
essential to note and observe
that, the Court also called an
expert witness C.W.I, Samuel
Ofosu Ahenkora of the Survey
Department who used the site
plans of the parties to prepare
a report for the court in
addition to his viva voce
evidence.
HIGH COURT JUDGMENT
The High
Court on the 27th
May, 2011 delivered judgment in
which it dismissed the
Plaintiff’s action and entered
judgment on behalf of the 1st
Defendant’s counterclaim as
follows:
1.
The first defendant’s title is
declared in the land on which he
has put up his building.
2.
The 1st defendant is
also given title to the
adjoining plot of land licensed
to the 2nd defendant
for the car washing business.
3.
The 1st defendant
shall recover possession of both
plots of land.
4.
The Plaintiff shall pay specific
damages in the sum of $7,004 or
its equivalent in GH¢ to the 1st
defendant.
5.
GH¢3,000 general damages for
loss of use to the 1st
defendant.
6.
The Plaintiff, his agents and
privies are restrained from
interfering in the 1st
defendants use of the plots of
land described in the writ of
summons.
7.
Cost of GH¢500 against
plaintiff.
APPEAL TO COURT OF APPEAL
As the Plaintiff’s felt aggrieved by
the decision of the High Court,
they appealed against that
decision to the Court of Appeal.
However, the Court of Appeal, in
a well thought out and reasoned
decision delivered on its behalf
by its President, Kanyoke J. A,
on 31st October 2013,
dismissed the appeal it its
entirety.
APPEAL TO THE SUPREME COURT
Still undaunted, the Plaintiff’s on
the 28th day of
November 2013 filed yet another
appeal against the decision of
the Court of Appeal to this
Supreme Court, with the
following as the grounds of
appeal:
a. “That the Court of
Appeal failed to appreciate that
the Defendant’s exhibit ‘3’ not
having been registered and
fraudulently procured was
defective in law and could not
be relied on by the Court of
Appeal to declare title in the
land to the Defendant.
b. That the Court of
Appeal erred in law when it held
that the trial judge properly
admitted exhibit ‘9’ in evidence
on the basis of the fact exhibit
‘9’ was certified true copy and
came from the Deeds Registry , a
public office or entity.
c. That the Court of
Appeal failed to appreciate that
the burden of proof lies on the
defendant in the light of
paragraph ‘6’ of his statement
of defence and counterclaim to
prove that averment and his
failure to do so disentitled him
from relying on the doctrine of
acquiescence.
d. That the Court of
Appeal erred when it held that
evidence on record amply
supported the award made by the
trial judge for the claim of
USD7,000 by the Defendant as his
expenditure in respect of the
damaged electrical and other
building materials including the
cost of reroofing Defendant’s
building.
e. That the Court of
Appeal erred in law when it held
that the trial judge was right,
in relying on Mensah v
Ghana Commercial Bank
and coming to the conclusion
that the grant of the land to
Ibrahim Mensah Komieteh by the
Teshie Mantse is therefore not
the truth and the declaration in
exhibit ‘9’ is false.
f. That the judgment of
the Court of Appeal is against
the weight of evidence.”
STATEMENTS OF CASE OF THE
PARTIES IN THIS CASE
We have perused the erudite statements
of case filed by the respective
learned counsel in this appeal,
for and on behalf of their
clients.
Whilst appreciating the extent of work
and knowledge that has been
exhibited therein, we are
however quick to observe that,
in the case of the learned
Counsel for the plaintiff most
of the arguments proffered
therein have been a rehash of
the arguments that were stated
in the Court of Appeal.
For example, we note and observe that,
even in the formulation of the
grounds of appeal, learned
Counsel for the plaintiff has in
some instances just substituted
the words “trial court” that was
used in the grounds of appeal at
the appeal court for the words
“the Court of Appeal” in the
notice of appeal to this court.
In this respect, it is useful to point
out some examples and make the
necessary linkages therein.
Ground “a” of the grounds of appeal in
this Court and referred to
supra, had been couched in
similar terms as “g” in the
notice of appeal from the High
Court to the Court of Appeal on
page 159 as follows:-
“That the trial Judge
erred in law by failing to make
any finding of fact on the issue
as to whether the Respondent’s
title deed tendered at the trial
was dubious and fraudulently
procured.”
In order
to ascertain that the exhibit 3
mentioned by the plaintiff’s in
their ground “a” of the notice
of appeal to this court is the
same as ground “g” of the notice
to the lower court just referred
to supra, we wish to make a
quick reference to the evidence
in Chief of the 1st
Defendant in support of same
from the record of appeal.
This is
what the 1st
Defendant said:
“I obtained a document from the
people who sold the land to me.
I have it here Tendered Exhibit
2, Land Owners Title Deed. I
have my own Title Deed also here
Tendered Exhibit 3”.
Secondly,
ground (b) of the grounds
contained in the notice of
appeal to this Court and
referred to supra are the same
as ground “b” of the notice of
the grounds of appeal to the
Court of Appeal which state as
follows:-
“That the trial Judge
erred in Law when he failed to
appreciate that no evidence on
Teshie Customary law had been
adduced at the trial to support
his finding that the statements
contained in the statutory
declaration of the appellant’s
grantor affirming his ownership
of the disputed land were
false.”
In the
instant notice of appeal,
learned counsel referred to
exhibit “9” instead of the
Statutory Declaration mentioned
in the Court of Appeal. However,
the value in both instances is
the same. This is because, on
page 234 of the appeal record,
is the proof that the Statutory
Declaration therein has been
marked as exhibit 9.
The third
and last example to be given by
us just to make references to a
few of the repetition and rehash
of same arguments made in the
court of Appeal is the
comparison between ground “c” of
the grounds in the notice of
appeal to this court as referred
to supra, and the grounds “d”
and “f” of the notice of appeal
to the Court of Appeal.
These
read as follows:-
(d)”That the trial Judge failed
to appreciate that the Appellant
had carried out it’s business of
real estate department on the
disputed land over a long period
without challenge and
sold several housing units to
third parties, conduct
evidencing exercise of ownership
rights.”
(f) That the trial Judge erred
in law when he failed to
appreciate that the Respondent
could not rely on the equitable
doctrine of laches, having been
previously warned of the
appellant’s adverse claim to
title to the disputed land.”
The
combine effect of the above two
grounds of appeal in the Court
of Appeal are the same as ground
“c” of the grounds of appeal in
this court.
Having
pointed out at least four of
similar grounds of appeal that
had been argued and dealt with
adequately in our estimation by
the Court of Appeal, it is
pointless for the same grounds
of appeal in content to be
reworded and couched to have the
same effect and re-argued with
greater force before us in this
court.
Let us now consider in detail
how the Court of Appeal disposed
these grounds of appeal in their
erudite rendition.
ADMISSIBILITY OF
EXHIBIT 9, THE STATUTORY
DECLARATION
The Court of Appeal rendered its
opinion on why it agreed with
the learned trial judge that
exhibit 9 was properly admitted.
They stated thus:-
Section
162 of NRCD 323 provides
“162. A copy of a writing is
presumed to be genuine if it
purports to be a copy of the
writing which is authorized by
law to be recorded or filed and
has in fact been recorded or
filed in an office of a public
entity or which is a public
record, report, statement or
data compilation, if
a.
An original or an original
record is in an office of a
public entity where items of
that nature are regularly kept;
and
b.
The copy is certified to be
correct by the custodian or
other person authorized to make
the certification provided that
the certification must be
authenticated.”
“Nowhere is it stated in Section
162 of NRCD 323 that it is the
contents or statements in the
writing which are presumed to be
genuine. On the contrary, it is
clear from the wording of
Section 162 of NRCD 323 that it
is the certified true copy of
the writing, (or document) which
is presumed to be genuine. In my
view, Section 162 of NRCD 323 is
only relevant for admission as
evidence in litigation provided
the writing is a certified true
copy and emanates from a public
officer or entity. The issue of
whether or not the contents or
statements in the writing are
true or false is a matter of
evidence. In the instant case,
Exhibit 9 was a certified true
copy and came from the Deeds
Registry, a public office or
entity. Exhibit 9 was therefore
admitted in evidence. The
contents or statements in the
Statutory Declaration – Exhibit
9 are that the father of Alhaji
Ibrahim Mensah Komieteh acquired
the land measuring 75.53 acres
including the disputed portion
from the Teshie Mantse. But on
the basis of the unassailed
judicial decision of Ollennu J.
(as he then was) in Mensah v
Ghana Commercial Bank (supra)
which has become part of the
laws of Ghana by virtue of
Article 11 (2) of the
Constitution, 1992, it is now
the law that Teshie lands belong
to the quarters and that the
Teshie stool has no land of its
own and that therefore it is
only the head of a quarter and
his elders who can validly and
customarily alienate Teshie land
to anybody or entity in Teshie
and not the Teshie Stool.
Consequently, on the face of
Exhibit 9, the statements
therein that Komieteh’s father
acquired the land from the
Teshie Mantse cannot be true
without positive and credible
evidence to the contrary since
Teshie stool owned no land and
could not therefore have granted
the land claimed by the
plaintiff to the father of
Ibrahim Mensah Komieteh. It was
therefore incumbent on the
plaintiff to adduce sufficient
and credible evidence or provide
a contrary judicial decision to
rebut or contradict the decision
of Ollennu J (as he then was) in
Mensah v Ghana Commercial Bank
(supra) but the plaintiff failed
to discharge this burden. The
trial judge was therefore right,
in relying on Mensah v Ghana
Commercial Bank supra, and
coming to the conclusion that
“the grant of the land to
Ibrahim Mensah Komieteh by the
Teshie Mantse is therefore not
the truth and the declaration in
Exhibit 9 is false” without
any further evidence. The
Plaintiff also failed to adduce
evidence or provide any judicial
authority to prove that rural
lands situate outside the Teshie
Township were not quarter
lands.”
As was stated earlier, we have perused
the statement of case filed by
both learned counsel. We observe
that, learned counsel for the
plaintiffs, Edward Sam Crabbe
took great pains to explain the
reasons why the decision in
Mensah v Ghana Commercial
Bank, [1957] 3 WALR 123
should not be followed and that
Jackson J (as he then was), in
the Public Lands Ordinance and
In the matter of Land
acquired for the Service of the
Gold Coast Colony and Ashanti,
situate at Teshie – and Nii
Afotey Adjin II, Nungua Mantse
We, Nungua and 5 others,
decided on 26th
May 1925 should rather be
followed.
We are aware of the Supreme Court
decision in the case of
Agyei Osae and Others v Adjeifio
and others [2007-2008] SCGLR 499
at 507 which was
referred to this court by
learned counsel for 1st
Defendants, Hon. Ayikoi Otoo,
where the Supreme Court speaking
through Brobbey JSC stated
conclusively on the history of
the ownership position of Teshie
Lands as follows;-
“To conclusively
discuss these two issues, it
will be useful to trace the
history of what has now become
known as Teshie Quarter Lands.
Originally, the lands were
Nungua Stool Lands but sometime
in or about 1710-1715, the
Founder of Teshie, Nii Okai
Ngbashi, bought the land from
Nungua. Several years after his
death, the land was divided
among the five quarters of
Nungua namely:, The Krobo
Quarter, The Agbawe Quarter,
Klemusu Quarter, Gbugbla Quarter
and Lenshie Quarter. In 1927 or
thereabout, Nii Ashietey Akomfra
shared the land amongst the
various quarters. The parties
are adidem on this history.”
The parties therein in the above cited
case both come from Teshie. The
decision as to whether Teshie
presently has stool lands or
Quarter lands has been put to
rest by the decision of the
Supreme Court just referred to
supra. The decision of Ollennu
J, (as he then was) in the
Mensah v G.C.B case has
therefore been confirmed by the
Supreme Court in contra
distinction to that of Jackson
J, (as he then was) in the case
referred to supra.
On the basis of the above narration,
we have no basis to depart from
the decision of the Court of
Appeal, referred to supra, that
the Plaintiff’s grantors could
not have conveyed Teshie Stool
lands to him as there was no
such title in them to convey to
the plaintiff’s grantors.
Despite the submissions of
learned counsel for the
Plaintiff’s on the subject
matters raised therein, we have
no sound reason to depart from
the Court of Appeal decision and
accordingly affirm it. In that
respect, grounds, “b” and “e” of
the grounds of appeal in this
court are accordingly dismissed.
WHETHER 1ST DEFENDANT
PROVED AVERMENTS IN HIS
PARAGRAPH 6 OF HIS DEFENCE AND
COUNTERCLAIM
The Court of Appeal also
similarly made light work of the
Plaintiff’s grounds of appeal
which are similar in content to
ground “c” herein. This is what
they said:
“It is further clear
from evidence on record that the
plaintiff was not able to
counteract sufficiently the
pleading and evidence of the
defendant that the plaintiff per
its Managing Director and other
employees of the plaintiff were
aware of the development of that
portion of the land but did
nothing about it initially.
In the reply to the
defendant’s statement of defence
and counterclaim the plaintiff
did not specifically deny
paragraph 6 of the said
statement of defence and
counterclaim averred as
follows:-
6.” Defendant avers
that by 1997 he had completed
his house and roofed same
without any confrontation from
the plaintiff who passed the
front of his house every morning
and evening on his way to and
from his nearby work site”.
Under cross
examination, the defendant
denied being warned of the land
by the plaintiff. According to
him “The only time they (i.e the
plaintiff said so was when they
destroyed my roof”) and that it
was in 1997 after he had
completed the building and
roofed same in 1996 that the
plaintiff removed the roof. See
page 55 of the ROA. In his
judgment, the trial Judge dealt
with the issue of acquiescence
on the basis of the pleadings
and evidence led and relied on
the case of Ramsden v Dyson
(1866) L. R. 129. The trial
Judge believed the defendant
that it was when he was fencing
his plots that the plaintiff
brought soldiers to level the
ground. It was the trial
Judge who saw and heard the
plaintiff’s administrative
manager and the defendant and
was therefore in a better
position to judge their demeanor
in the box and decided to accept
the version of the defendant.
We are in a disadvantaged
position not having seen and
heard them. The trial judge
resolved the issue of
acquiescence in favour of the
defendant. In the light of the
averment in paragraph 6 of the
statement of defence and
counterclaim, it was incumbent
on the plaintiff to adduce
sufficient and credible evidence
to rebut those averments instead
of merely denying them and
failed to adduce such rebuttable
evidence.”Emphasis supplied
Additionally, there is abundant
evidence on record to establish
the fact that the Plaintiff’s
indeed caused damage to the 1st
Defendant’s property after it
had been roofed. This is how the
1st Defendant stated
it in his evidence in chief.
“When I visited the land I saw that
all the roofing tiles I had put
had been removed and packed on
the roof. I asked my friend
what happened and he said the
Plaintiff said the land was
their property and so they
removed the tiles. The rain
damaged the roofing, tiling and
the electricals I had done
because it rained the whole
weekend.”
The 1st Defendant
confirmed that, because his time
to depart to the U. S. was due,
he instructed that no charges be
raised against the Plaintiff’s.
The 1st Defendant
also testified that anytime he
decided to fence the other
undeveloped plot, the Plaintiff
would destroy it by using the
military and police personnel.
Again, there is evidence on
record that, the only time the
Plaintiff’s asserted their
ownership rights on the property
was when they damaged the roof
of the 1st
Defendant’s building even though
they were aware he was
developing same. It is in this
respect that we appreciate the
decision of the Court of Appeal
and affirm same. The decision by
the 1st Defendant to
compensate the Plaintiff’s was
an apparent reaction to the
frustration that he suffered in
the development of the land at
the hands of the plaintiff’s
agents.
This is because, the Plaintiffs
should not have taken the law
into their own hands but resort
to the pursuit of their claims
in a civilized manner as they
later did in the law courts.
Furthermore, we have sighted
Exhibits 4 and 4(a) which are
all building permits from Tema
Municipal Assembly and the Accra
Metropolitan Assembly Whilst
exhibit 4 is dated 15-10-1996,
4(a) is dated 7th
February, 2002, and emanates
from the AMA.
The 1st Defendant
explained the circumstances
surrounding the two permits,
exhibits 4 and 4(a) as follows:
“I first got the building permit from
Tema but later T. M. A. told me
the land was rather in A. M. A.
area so I had to go to A. M. A.
for another permit and that is
why I have two permits. I went
to the land first before the
Plaintiff.”
All the above pieces of evidence
show that the Court of Appeal
decision took into consideration
all relevant evidence which
proved that the conclusions
reached by them was based on
cogent and convincing evidence.
Even though we have taken into
consideration the reference to
us by Learned Counsel for the
Plaintiff’s, cases such as
Nii Boi v Adu [1964] GLR 410
and Boateng v Ntim [1961] (Pt.
11) at 674 we
nevertheless are of the view
that those cases cannot have the
effect being imputed to them.
On the basis of the above we
dismiss ground (c) of the
grounds of appeal.
WHETHER TITLE WAS DECREED IN THE 1ST
DEFENDANT ON THE BASIS OF HIS
UNREGISTERED EXHIBIT 3
We again concur in the decision
and conclusion of the Court of
Appeal in ground (a) of the
instant grounds of appeal, which
are again similar in content to
ground (e) of the Court of
Appeal grounds of appeal which
they dismissed in the following
terms:-
“To me that is crooked
reasoning and is clearly bereft
of any legal and probative
value. In any case, the trial
Judge evaluated the rival claims
of the parties and came to the
conclusion that the defendant’s
claim of title to the disputed
land was more reasonably
probable of legal value than
that of the plaintiff. I find
nothing wrong with that finding
and conclusion and have no cause
to disturb it.”
The above statement is further
supported by the 1st
defendant’s evidence on record
where he stated as follows:-
“So I purchased two plots
of land from the Nungua Stool”.
Later, during cross-examination,
the 1st defendant
explained the position further
thus:-
Q: I put it to you that the land
is not Nungua Stool land.
A: That is not true – It is for
Nungua Stool.
Q: So who sold the land to you?
A: Jacob Bortey and others, but
I do not know the others.
This matter was put to rest by
the evidence of DWI when he
stated as follows:-
“I know the first defendant in this
suit. He has developed a portion
of our stool land at Baatsona as
his residence”.
Then under cross-examination,
DWI confirmed the position as
follows:
Q: I put it to you that the land
in dispute is not part of the
Nungua stool land.
A: It is part of Nungua Stool
land”.
The 1st Defendant’s
case is very simple. He averred
and testified that he bought the
plots of land from Jacob Bortey
and George Bortey, both of
Nungua.
Indeed a perusal of exhibit 2
indicated that, Jacob Bortey and
his brothers were granted a
lease of the land in dispute by
NII BORTRABI OBRONI II (Mankralo
and Acting Nungua Mantse).
It therefore follows that,
exhibit 3, only recites the root
of title of the 1st
Defendant to Jacob Bortey and by
necessary implication to the
Nungua Stool. The evidence of
DWI was therefore spot on and in
the right direction.
Based upon the above analysis,
it is clear that the Court of
Appeal did not declare title to
the 1st Defendant
based on unregistered exhibit
3. Rather, the Court of Appeal,
by deductive reasoning and with
clarity of thought, decreed
title in the 1st
Defendant, by considering all
the evidence such as the
inadequacy of Plaintiff’s root
of title in exhibit 9, which had
been discredited, the conduct of
the Plaintiff’s in sitting by
and allowing the 1st
Defendant complete his building
and taking the law into their
own hands to destroy same. The
Court of Appeal, in our opinion
rightly applied equitable
principles to decree title in
the 1st Defendant.
In coming to the above
conclusion, we took into
consideration the decision in
the cases of Asare v
Brobbery [1971] 2 GLR at 366,
Amefinu v Odametey [1971] 2 GLR
135 at 144, Hammond v Odoi
[1982-83] 1215 and Nartey v
Mechanical Lloyd [1987-88] 2 GLR
314, but regret that
those cases have been wrongly
applied to the circumstances of
this case by learned counsel for
plaintiff’s.
What must be noted is that, both
the trial court and the Court of
Appeal did not decree title to
the 1st Defendant on
the unregistered title deeds.
WHETHER THE COURT OF APPEAL ERRED IN
THE AWARD OF DAMAGES
In addressing submissions on why
the Court of Appeal dismissed
the Plaintiff’s concerns on the
award of $7,000.00 damages to
the 1st Defendant,
the Court of Appeal again stated
emphatically as follows:-
“It seems to me that
counsel for the plaintiff is
still hunted by the rules
regarding pleadings and has not
awakened to the realization that
recent judicial decisions have
made inroads into the myth
surrounding pleadings and have
accordingly demystified that
myth. For instance, it has long
been the rule that fraud must be
specifically pleaded and proved.
But in the Supreme Court case of
Amuzu v Oklikah(1998-1999)
SCGLR 144, Justice Atuguba JSC
made this observations at page
183:
“In this case fraud
has not distinctly been pleaded
as the practice requires. But in
view, especially of the
provisions of Section 5, 6, and
11 of the Evidence Act, 1975
(NRCD. 323) regarding the
reception of evidence not
objected to, it can be said that
where there is clear but
unpleaded evidence of fraud like
any other evidence not objected
to, the court cannot ignore
the same, the myth surrounding
the pleading of fraud
notwithstanding… In the
context of equity, it can even
be said that fraud relates to
any colourable transaction and
not necessarily fraud in its
strict legal sense.
In compelling circumstances, the
courts have not allowed the
rules of pleadings to stand in
the way of justice.”
The late Justice
Aikins JSC (as he then was)
expressed similar sentiments in
the same case at page 157. See
also the cases of Asamoah v
Servandzie (1987-88) 1 GLR, S.C
Atta v Adu (1987-88) 1 GLR 235
and Semorransinghe v Sbaiti
(1977) 2 GLR 442, C.A. In
the instant case, it is conceded
that the defendant did not
specifically plead that the
US$7000.00 he was talking about
was special damages and did not
specifically claim it in the
counterclaim but he did plead
that figure in the statement of
defence and counterclaim. Thus,
paragraph 8 therein averred as
follows:-
“8. In June 1997, the
Plaintiff took the law into his
hands and removed the roof of
the defendant’s building
constructed at the cost of
$10,000.00 which then exposed
the electrical and other
building materials interior to
the vagaries of the weather and
rain thereby causing defendant
loss of over $7,000,00 being
cost of electrical and other
building materials interior.”
We cannot but agree with the
reasoning behind those powerful
words. In our minds, there is
abundant evidence on record from
which the Court of Appeal came
to the above conclusions. We
therefore have no basis to
depart from them. We however
direct that the 1st
Defendant be made to pay filing
fees in respect of the amount of
$7000.00 or its equivalent in
GH¢. At the time the pleadings
were filed, it was, C.I. 55,
Civil Proceedings (Fees and
Allowances) that was
applicable.
However, since the 1st
Defendant did not pay the
appropriate filing fees at the
time, and to serve as a
deterrence to parties, the 1st
Defendant will be ordered to pay
the filing fees on the award of
damages in this case on the
basis of the schedule of fees
specified under Civil
Proceedings (Fees and
Allowances) (Amendment) Rules,
2014 C. I. 86. Save as
stated supra, ground d of the
appeal herein is dismissed
WHETHER THE JUDGMENT OF THE
COURT OF APPEAL IS AGAINST THE
WEIGHT OF EVIDENCE AND THE
APPLICATION OF THE PRINCIPLE OF
CONCURRENT FINDINGS OF FACT BY
TWO LOWER COURTS
Before we
conclude this judgment, it is
relevant and necessary for us to
comment on the effect of the
judgment of the High Court which
was concurred in by the Court of
Appeal, and now subsequently
concurred in by this court.
We are of the considered opinion that,
in cases such as the instant,
where the findings of fact and
the decision of the trial High
Court have been concurred in by
the Court of Appeal, i.e. the
first appellate court, and
subsequently concurred in by the
second appellate court, which is
this court, and there has been
no real need to comment on any
new point of law, or make any
notable pronouncement on any
legal principle, there is no
real need to write any lengthy
judgment.
This is especially so, when the Court
of Appeal judgment as is the
case in this instance is so
detailed and all encompassing
that there is therefore no need
to treat the same grounds which
have so eloquently been dealt
with and well analysed by the
Court of Appeal. To do so will
amount to a repetition which we
dare say has been the case
herein.
Indeed, there are a litany of cases
decided by this court which
confirm the fact that, where
findings of fact had been made
by a trial court and concurred
in by the first appellate court,
the second appellate court,
(which is this Supreme Court)
must be very slow in coming to
different conclusions.
However, a second appellate court may
if satisfied that there are
strong pieces of evidence on the
appeal record which appear
manifestly clear that the
findings of the trial court and
the first appellate court are
perverse depart from those
findings and conclusions.
In the instant case however, it is
clear that there are no such
instances to justify a departure
by this court from the findings
of fact and decisions of the two
lower courts.
The advantages that the trial court
derived from the observations of
the demeanour of the parties and
witness which appeared before
it, which phenomenon was not
lost on the Court of Appeal
which rightly commented
positively on it in their
rendition, must be taken into
consideration by this court in
the assessment of the evidence.
In this respect, we find no
compelling reasons to disturb
the findings and conclusions
reached by the trial Court and
the Court of Appeal and
accordingly concur in them. See
the cases of Achoro v
Akanfela [1996-97] SCGLR 209,
Akuffo-Addo v Cathline [1992] 1
GLR 377 S.C cited, Obeng v
Assemblies of God Church, [2010]
SCGLR 300, just to
mention a few.
We are therefore of the considered
view that, in order to reduce
the burden on this court, in
appropriate circumstances where
the judgment of the trial court,
and especially that of the
appellate court, confirming the
trial court decision have been
well stated and elucidating
enough, it is desirable for this
court in affirming the Court of
Appeal decision to do so in very
few words. We hereby also
dismiss the omnibus ground of
appeal that the judgment of the
Court of Appeal is against the
weight of evidence.
CONCLUSION
In conclusion the appeal herein is
dismissed in its entirety. The
Court of Appeal judgment of 31st
October, 2013 is affirmed save
for the variation in the payment
of appropriate filing fees on
the equivalent in GH¢ on the
$7000 pleaded in paragraph 8 of
the Defence and Counterclaim of
the 1st Defendant.
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
EDWARD
SAM CRABBE ESQ. FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.
J. AYIKOI OTOO ESQ. FOR THE
DEFENDANTS/RESPONDENTS/
RESPONDENTS .
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