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Land -
Declaration of Title -
Perpetual injunction - Whether
the defendant has only a farming
licence to the land in dispute -
Whether Judgment is against the
weight of evidence led at the
trial. -
HEADNOTES
The case of the appellant is
that by settlement his family
came to own a vast land portions
of which was given to one
Maamani, also known as Naha Naa
for farming. This arrangement
came about because the said
Maamani got married to a lady
from the appellant’s family.
According to the appellant, the
land granted to Maamani is now
being farmed by the relations
and descendants of Maamani. He
also testified at the trial that
the respondent is a relation of
the said Maamani. The appellant
further stated that he brought
this action when the respondent
put up a sign post on the land
signifying that he owns the
land. The appellant contended
that his family has been
performing rituals on the land
as owners of the land any time
the circumstances required that
the land needed purification.
The respondent on his part
stated that the disputed land
was granted to his ancestor by
Jangburnga Naa from Sokpoyiri.
They have been farming on the
disputed land for all these
years without any hindrance from
anyone including the family of
the appellant. They have cash
crops like mangoes and cashew
farms on the land. They also
cultivate millet, yams and beans
on the land. According to the
respondent, his family has also
granted portions of the land to
certain individuals for
farming.-
HELD :-
The case before this court
is one where a party has in his
evidence in court departed from
his statement of claim. In such
a case we believe the court was
duty bound to evaluate the
pleadings of the party and the
evidence before the court and
make its own findings. The trial
judge did evaluate the totality
of the evidence on record and
came to the conclusion that he
did. Based on reasons already
discussed above and the evidence
on record, we believe that the
Court of Appeal erred in
departing from the findings of
the trial court. We hold that
the trial judge arrived at the
right findings on the evidence
and his decision to decree title
of the disputed land in the
plaintiff’s family is right.
Consequently we set aside the
decision of the Court of Appeal
and reinstate the judgment of
the trial judge. The appeal is
allowed and the
plaintiff/appellant succeeds on
his claim whilst the
defendant/respondent’s
counterclaim is dismissed
STATUTES REFERRED TO IN JUDGMENT
L.N. 140A Order 19, r. 17
CASES REFERRED TO IN JUDGMENT
ABAKAH vs. AMBRADU (1963)
1 GLR 456 and SERAPHIM vs. AMUA
SEKYI (1971) 2 GLR 132.
Cross v. Hillman Ltd.
[1969] 3 WLR 787 at 798, C.A
Amoah v. Lokko & Afred
Quartey (substituted by) Gloria
Quartey [2011] 1 SCGLR 505,
Fofie v. Zanyo [1992] 2
GLR 475,
In Re Ashalley Botwe Lands
[2003-2004] SCGLR 420,
Fori v Ayirebi [1966] GLR
627, SC and Mantey v Botwe
[1989-90] 1 GLR 479, SC
Appiah v Takyi (1982/83) 1
GLR 1
Odoi v Hammond [1971] 1
GLR 375.
Akufo-Addo v Catheline
[1992] 1 GLR 377
BOOKS REFERRED TO IN JUDGMENT
BAFFOE-BONNIE, JSC:-
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC,BAFFOE-BONNIE,
JSC
COUNSEL.
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
MICHAEL GYANG OWUSU FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
BAFFOE-BONNIE, JSC:-
This is an appeal by the
plaintiff/respondent/appellant,
against the judgment of the
Court of Appeal dated 26th July
2013. The Court of Appeal in the
said judgment allowed an appeal
by the
defendant/appellant/respondent
against a decision of the High
Court dated 17th May 2010. We
shall refer to the
plaintiff/respondent/appellant
as the appellant, and the
defendant/appellant/respondent,
as the respondent.
The facts in this case are
as follows. The Appellant is the
head of the Tatali family of
Kpongo village near Wa. The
Respondent is also a farmer
resident at Fongo, a section of
Wa. The Appellant on 22nd May
2007 issued a writ against the
Respondent in the High Court
seeking the following reliefs:
1.
Declaration of Title to all that
piece and parcel of land lying,
situate, opposite the Wa
Polytechnic new site bounded on
the North by the Muglu valley
measuring about 1km on that
side; on the West by the
Wa-Kpongo road measuring about
1km on that side; on the South
by Appellant’s land, on the East
by Appellant’s land, which land
shall be more particularly
delineated by a site plan upon
the orders of the court.
2.
Perpetual injunction restraining
the Defendant, his heirs,
successors in title and all
persons whosoever claiming title
through him from interfering
with the plaintiff’s peaceful
enjoyment of the land.
3.
Costs of the action.
The Respondent also
counter-claimed for:
a.
Title to all that piece of land
situate at a place called Muglu,
bounded by the properties of
Sokpeyiri to the North, Naa-Jara
of Kpongo to the South, Kpaguri
to the East and Puohounyiri to
the South.
b.
Costs
The case of the appellant
is that by settlement his family
came to own a vast land portions
of which was given to one
Maamani, also known as Naha Naa
for farming. This arrangement
came about because the said
Maamani got married to a lady
from the appellant’s family.
According to the appellant, the
land granted to Maamani is now
being farmed by the relations
and descendants of Maamani. He
also testified at the trial that
the respondent is a relation of
the said Maamani. The appellant
further stated that he brought
this action when the respondent
put up a sign post on the land
signifying that he owns the
land. The appellant contended
that his family has been
performing rituals on the land
as owners of the land any time
the circumstances required that
the land needed purification.
The respondent on his part
stated that the disputed land
was granted to his ancestor by
Jangburnga Naa from Sokpoyiri.
They have been farming on the
disputed land for all these
years without any hindrance from
anyone including the family of
the appellant. They have cash
crops like mangoes and cashew
farms on the land. They also
cultivate millet, yams and beans
on the land. According to the
respondent, his family has also
granted portions of the land to
certain individuals for farming.
The respondent admitted
being a relation of Naha Naa
(Maamani). He said Maamani is
his grandfather. He further
admitted at the trial that the
appellant’s family gave some
land to Maamani, his
grandfather. He however
explained that the land which
was granted to the said
grandfather by the appellant’s
family is different from the
disputed land. The respondent
further contended that the
appellant’s family attempted to
sell a portion of the land
granted to his ancestors by
Jangburugu Naa. This caused him
to erect the sign post on the
land to serve notice to all
trespassers including the
appellant’s family.
In the course of trial the
appellant sought to amend his
pleadings to include another
relief as follows;
“A declaration that the
defendant has only a farming
licence to the land in dispute”
Even though the
application was granted the
pursuant process was later
struck out for procedural
irregularity. So the suit was
fought on the original statement
of claim and the reliefs on the
writ of summons.
Again in the course of the
trial, the court ordered a plan
to be drawn with survey
instructions provided by the
parties. The surveyor was
examined by both parties and the
plan so ordered was admitted
into evidence.
At the end of the trial,
the High Court decreed title of
the disputed land in favour of
the appellant’s family.
Aggrieved by the decision of the
High Court, the respondent
mounted an appeal in the Court
of Appeal. The Court of Appeal
reversed the judgment of the
trial High Court. This current
appeal has been brought against
the said decision of the Court
of Appeal on the following
grounds:
i.
The judgment of the Court of
Appeal is against the weight of
the evidence led at the trial
court.
ii.
The Court of Appeal erred when
it overturned the judgment of
the trial court on ground that
the Plaintiff failed to prove
the boundaries of his land.
iii.
The Court of Appeal erred when
it held that the trial judge
ought to have rejected
plaintiff/respondent/appellant’s
evidence because it conflicted
with
plaintiff/respondent/appellant’s
pleadings.
Ground 1.
Judgment is against the weight
of evidence led at the trial.
The Appellant in this
appeal argues that the judgment
of the Court of Appeal is
against the weight of evidence
adduced at the trial court. In
his statement of case he sought
to show that the Court of Appeal
erred in departing from the
findings of the High Court. The
Court of Appeal in its judgment
partly disagreed with the
findings on the trial court and
made its own findings based on
the evidence on record. The
appellant argues that the Court
of Appeal’s finding that the
evidence of DW2 corroborated
that of the Respondent “as a
descendant of the first settlers
and for that matter, owners of
all Wa lands” is not based on
the evidence on record. Also,
issue is raised with the finding
of the Court that the “Defendant
denied his land was ever
desecrated and purified”. The
Court of Appeal again made a
finding that the evidence of PW1
and PW2 on purification of the
land was hearsay evidence and
could not support the
Appellant’s case. Further the
Court found that the second
purification, which PW2 said had
taken place at Balongomo shrine
was far from the area in
dispute.
The respondent on the
other hand in his statement of
case sought to justify the
findings of the Court of Appeal
on the basis of statements made
by the appellant and his witness
when giving their testimony in
the trial court. He invited this
court to apply the principle
that an appellate court is
entitled to uphold a judgment,
if proper grounds exist on the
record to justify the judgment,
even though it cannot be
supported for the reasons given
by the Court which gave it. See
the cases of ABAKAH vs. AMBRADU
(1963) 1 GLR 456 and SERAPHIM
vs. AMUA SEKYI (1971) 2 GLR 132.
Appeals are by way of re
hearing, Tuakwa v Bosom, and an
appellate court is under an
obligation to examine the
findings of the trial court to
determine whether those findings
can be supported by the evidence
on record. Where the findings of
the trial court are inconsistent
with the evidence on record, the
appellate court has a duty to
make its own findings based on
the said evidence. However, an
appellate court will be in error
and may open its judgment to be
set aside on appeal if it
substitutes its findings for
that of a trial court whose
findings cannot reasonably be
questioned.
In the case of Cross v.
Hillman Ltd. [1969] 3 WLR 787 at
798, C.A. Lord Widgery cautioned
that appellate court
“... which sees only the
transcript and does not see the
witnesses, must hesitate for a
very long time before reaching a
conclusion different from the
trial judge as to the
credibility and honesty of a
witness”.
In Amoah v. Lokko & Afred
Quartey (substituted by) Gloria
Quartey [2011] 1 SCGLR 505, his
Lordship Aryeetey JSC had this
to say;
“The appellate court can
only interfere with the findings
of the trial court if they are
wrong because (a) the court has
taken into account matters which
were irrelevant in law, (b) the
court excluded matters which
were critically necessary for
consideration, (c) the court has
come to a conclusion which no
court properly instructing
itself would have reached and
(d) the court’s findings were
not proper inferences drawn from
the facts.”
The right of a trial court
in respect of findings of facts
has long been settled. In
Fofie v. Zanyo [1992] 2 GLR 475,
the Court of Appeal set aside
the findings of facts of the
trial court and made its own
findings. The Supreme Court in
holding 4 of its judgment had
this to say:
“Although an appellate
tribunal in appropriate
circumstances had the right to
interfere with the findings of
fact of a trial court, that
right was subject to the
exclusive preserve of a trial
tribunal to make primary
findings of fact where such
findings of fact were supported
by evidence on the record and
were based on the credibility of
witnesses when the trial
tribunal had had the opportunity
and advantage of seeing and
observing their demeanour and
had become satisfied of the
truthfulness of their
testimonies touching on any
particular matter in issue.
Where such findings could not 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
properly instructing itself on
the law would have reached and
the findings were not inferences
drawn from specific facts, it
was incompetent for an appeal
court to interfere.”
In the appeal before us,
we believe that the findings of
the trial court, by its judgment
and reasoning was supported by
the evidence on record. There is
factual basis for the
conclusions of the trial judge.
What the Court of Appeal in the
instant action attempted to do
was to set aside the findings of
fact of the trial court and to
substitute its own finding and
did was wrong in law. At page
196 of the record of appeal the
trial judge made the following
findings:
The evidence adduced by
the defendant in support of his
contention that the disputed
land was granted to his family
by the family of DW2 is
doubtful. There is evidence on
record to show that the family
of DW2 granted the Fongo land to
the family of the defendant
which they are occupying up to
today. The land is different
from the disputed property. DW2
could not mention any act of
recent memory which suggests
that his family owns the
disputed land. The plaintiff
however established that his
family has in recent times
purified the disputed land on
two occasions without any
resistance from the family of
DW2. It has also been
established that the land
granted to Maamani is in the
possession of his relations or
family. The Defendant is a
member of Maamani’s family. He
is his grandson. Issah Daamani
and Amora Kofi are also family
members of Maamani and they are
farming on the land. In my view
these pieces of evidence makes
the case of the plaintiff more
credible and reliable. I hold
therefore that the Plaintiff’s
family granted the disputed land
to Maamani and after his death,
family members of Maamani are
farming on it.
The trial judge made those
findings after he had the
opportunity to assess the
credibility of witnesses and the
opportunity and advantage of
seeing and observing their
demeanour and had become
satisfied of the truthfulness of
their testimonies touching on
the issues before the court.
These findings of the court, in
our view, were supported by the
evidence on record.
What the Court of Appeal
in this case attempted to do is
unfortunate. The Court of Appeal
decision to depart from the
findings of the trial judge was
not warranted in law. There are
several instances where the
trial judge is vindicated in his
findings contrary to the
decision of the Court of Appeal
to depart.
The Court of Appeal found
that DW2 corroborated the
evidence of the respondent as a
descendant of the first settlers
and for that matter owners of
all Wa lands. This, the
appellant, in his statement of
case forcefully disagreed with.
From the evidence before this
court, we agree with the
argument of learned counsel for
the appellant. We find it
strange how the Court of Appeal
came by their finding. The
respondent in his testimony to
the court (at page 109) stated
that the disputed land was given
to his family by one Jangburugu
Naa from Sokpoyiri. He further
stated that when they came to Wa
they came to meet earlier
settlers. DW2 came to give
evidence that his family granted
the disputed land to the
respondent. How then did the
Court of Appeal reconcile the
two testimonies to arrive at the
finding that DW2 corroborated
the evidence of the defendant as
a descendant of the first
settlers and for that matter
owners of all Wa lands. If DW2’s
family granted the land to
respondent, then they cannot be
owners of all Wa lands. That
aside, DW2 testified that there
are four family’s that own the
lands in Wa. In respect of the
assertion that the respondent is
a descendant of the first
settlers, we did not come across
evidence to that effect from the
record.
Also, the Court of appeal
found that the respondent denied
his land was ever desecrated and
purified. However, under
cross-examination, the defendant
stated that the land was
purified by the Tendamba of
Sokpeyiri. The following
responses from the respondent
under cross examination settle
this issue:
“Q. Your evidence that
plaintiff’s family had not been
purifying the land is false.
A. It is not true he has
been purifying the land.
Q. In recent times the
plaintiff’s family purified the
land when someone raped a lady
and also someone committed
suicide on the land.
A. That is not correct it
was the Tendamba from Sokpeyiri
who purified the land.”
These answers of the
respondent support the finding
of the trial judge that the land
was indeed purified. However
what the respondent dispute is
the fact that the land was
purified by the appellant’s
family but rather by the
Tendamba of Sokpeyiri. This
again, from the record, is
discredited by the testimony of
DW2, family head of the
Sokpoyiri family and the
respondent’s alleged grantor.
The following responses of DW2
under cross-examination confirm
this:
“Q. Are you aware that the
land you claim you gave to the
defendant had to be purified on
more than one occasion.
A. I am not aware.
Q. Someone committed
adultery on the land and the
land was purified.
A. I am not aware.
Q. Another person
committed suicide on the land
and the land was purified.
A. I don’t know.
Q. You are not aware of
these purifications because the
land does not belong to you.
A. Those that we gave the land
to did not come to tell us
anything.”
The testimony of DW2
clearly runs counter to that of
the respondent when he sought to
establish that his grantor, the
Tendamba from Sokpeyiri, had
been purifying the land. These
pieces of evidence cause one to
wonder how the Court of Appeal
came by its finding that the
“Defendant denied his land was
ever desecrated.”
To counter the arguments
of counsel for the appellant,
the respondent in his statement
of case made reference to the
testimony of PW2. He submitted
that based on the testimony of
PW2, the Court of Appeal was
justified in drawing the
inference that if the appellant
purified any land, it was far
from the land in dispute.
What are the established
facts in respect of the
purification done on the
disputed land? From the record
it has been established that two
separate incidents of rape and
suicide occurred on the disputed
land and purification rites had
been performed. It has also been
established that purification
rights have to be performed by
the Tendana but the rites in
question were not performed by
the family of DW2, the family
that allegedly were the grantors
of the respondent’s family. What
was left for determination was
the person who purified the
land.
PW1 in his testimony to
the court stated that it was the
Plaintiff who purified the land.
He also asserted that he was
present for the two
purifications that were done on
the land. However, under
cross-examination, PW1 admitted
that he was not present for the
first purification as he was a
child. (page 92). PW2 also in
his testimony to the court
confirmed that the Plaintiff did
the purification on the land but
under cross-examination he
stated that the shrine in which
the purification was performed
is not within the disputed land
(page 100). The testimony of
these two witnesses is
inconsistent.
In the case of Effisah v.
Ansah (2005-2006) 943 at 960,
the Supreme Court held as
follows:
“…in the real world,
evidence led at any trial which
turns principally on issues of
fact, and involving a fair
number of witnesses, would not
be entirely free from
inconsistencies, conflicts or
contradictions and the like. In
evaluating the evidence 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 has
substantially discharged his or
her burden of persuasion. Where
inconsistencies or conflicts in
the evidence are clearly
reconcilable and there is
critical mass of evidence or
corroborative evidence on
crucial or vital matters, the
court would be right to gloss
over these inconsistencies…”
The Court of Appeal’s
finding that based on the
testimony of PW2 if the
appellant performed any
purification rites then it was
not on the disputed land can be
faulted on the strength of the
ruling of the Supreme Court in
Effisah v. Ansah. From the
testimony of PW1 and PW2,
clearly there are
inconsistencies. However, the
said inconsistencies should not
justify a wholesale rejection of
the evidence of the two
witnesses. On the totality of
the evidence adduced at the
trial, it will be an affront to
justice to dwell on the
inconsistency in the testimony
of PW1 and PW2 to rule against
the appellant. Despite the
inconsistency in the testimony
of the two witnesses, they both
agreed that it was the appellant
who performed the purification
on the disputed land.
The role of a trial judge
in a civil matter is to
determine from the evidence
available which of the parties
adduced credible and sufficient
evidence to tilt in his favour
the balance of probabilities on
an issue. In Bisi v. Tabiri
alias Asare [1987-88] 1 GLR 360,
the Supreme Court had this to
say on the burden of proof:
“The standard of proof
required of a plaintiff in civil
action was to lead such evidence
as would tilt in his favour the
balance of probabilities on the
particular issue. The demand for
strict proof of pleadings had
however never been taken to call
for an inflexible proof either
beyond reasonable doubt or with
mathematical exactitude or with
such precision as would fit a
jig-saw puzzle. Preponderance of
evidence became the triers
belief in the preponderance of
probability. But “probability”
denoted an element of doubt or
uncertainty and recognized that
where there were two choices it
was sufficient if the choice
selected was more probable than
the choice rejected…”
The trial court in this
case found the case of the
appellant more probable than the
case of the respondent despite
the inconsistency in the
testimony of PW1 and PW2. The
parties in this case admit that
the land was indeed purified. It
has been established that
purification rights have to
performed by the Tendana but the
rites in question were not
performed by DW2, the head of
the family that allegedly were
the grantors of the respondent’s
family. The plaintiff asserts
that his family purified the
land and called PW1 and PW2 to
attest to this. The trial court
upon examining the totality of
evidence before it found that it
was the appellant who had been
performing the purification
rights on the disputed land.
What the Court of Appeal did was
to substitute their own finding
for that of the trial court
based on inconsistency in the
testimony of PW1 and PW2. The
Court of Appeal in our opinion
had no sound basis to interfere
with the findings of the trial
court.
The appellant in his
statement of case asserts that
the Court of Appeal at page 267
of the record of appeal made a
finding that the evidence of PW1
and PW2 on purification of the
land was hearsay evidence and
could not support appellant’s
case. Upon a careful reading of
the said page 267, we do not
agree with the assertion of
counsel. It is true that the
Court of Appeal did find the
evidence of PW1 and PW2 as
hearsay, but they discredited
the evidence more because of the
alleged inconsistencies in their
testimony and not because of the
fact that it was hearsay. We
have already stated how
inconsistencies in the testimony
of a witness should be treated
by the court.
The trial court in this
case found that the appellant’s
family granted the disputed land
to Maamani and that the said
land is in the possession of the
family and relations of Maamani.
However, the Court of Appeal
decided differently in favour of
the respondent. The Court of
Appeal had this to say in
departing from the findings of
the trial court (page 266):
“Still on the evaluation
of the evidence as a whole,
defendant pleaded that his
family shared boundry with Naa
Jara of Kpongo. And along that
boundry their family member the
late Jatoe has been farming. The
land granted to Maamani is
beyond their land and even
beyond Naa Jara land. DW1, son
of Maamani corroborated that
evidence. The location of the
land granted to Maamani is
further corroborated by PW4 who
said where his grandfather
farmed was granted to him by the
grandfather of the plaintiff.
That place called Dogruhi, PW4
said is beyond the farm of Jatoe
of Fongo.
The trial judge refused to
accept the evidence of DW1
because he did not mention
exactly the name of the land
granted to Maamani. But PW4 has
mentioned the name long before
DW1 gave evidence. PW4’s
evidence no doubt corroborated
positively the evidence of the
defendant and for that matter
his claim. The trial judge
should therefore have preferred
the defendant’s case to the
inconsistent and unreliable case
of the plaintiff – see Asante
vrs Bogyabi [1966] GLR 232.”
The finding of the Court
of Appeal that DW1, one of the
sons of Maamani, corroborated
the defendants assertion that
the land granted to Maamani is
beyond their land and even
beyond Naa Jara land is,
respectfully, misleading. We
will make reference to the
relevant part of DW1’s testimony
(page 113):
“When you get to Kpongo,
there is a hill. When you
descend the hill that is where
my father’s farm was. From Wa
you get to Naajere Clan land
before you get to my father’s
farm.”
Nowhere in DW1’s testimony
is the defendant’s land
mentioned. DW1 only makes
mention of the fact that from Wa
you get to Naajere Clan land
before you get to his father,
Maamani’s land. On the contrary,
what the evidence of DW1 does,
which was rightly decided by the
trial court, is to corroborate
the appellant’s assertion that
the disputed land is being
farmed on by the family and
relations of Maamani. I will
quote the words of DW1 under
cross-examination (page 114):
“Q. Each of your brothers
was given a portion of your
father’s land granted to him by
the plaintiff’s family.
A. That is correct.”
Again, the Court of Appeal
found that PW4’s evidence no
doubt corroborated the evidence
of the defendant and for that
matter his claim. To test this
finding of the court we refer to
some part of PW4’s testimony to
the court:
“I know the disputed land.
It is on the left hand side from
Wa to Kumasi. The disputed land
forms part of the land granted
to my grandfather by the
Plaintiff’s grandfather.”
What the testimony of PW4
seeks to establish is that the
respondent’s family are the
owners of a large tract of land
which includes the land in
dispute and the land granted to
his family. We believe that
PW4’s evidence, read as a whole,
corroborate the claim of the
respondent.
Another issue of concern
is the Court of Appeal’s finding
on the appellant’s assertion
that part of the land that was
granted to the respondent’s
family had been left fallow. The
court at page 265 held thus:
“The failure to so
indicate the fallow land on
which the sign post was erected
is fatal to the plaintiff’s
claim”
The court from the record
was not convinced of the
appellant’s claim that part of
the disputed land had been left
fallow. This, however, had been
admitted by the respondent in
paragraph 15 of his statement of
defence (at page 12). This is
what paragraph 15 of the
statement of defence says,
“Defendant further say
that save Jato’s farm, no
portion of their land has been
left fallow. And even then
strictly speaking the said
Jato’s farm in spite of his
death about 4 years ago cannot
be said to lie fallow as
portions of the farm has Mango
trees planted thereon…”
The respondent’s own
defence corroborates appellants
averment that the land was
fallow. The respondent in the
first sentence admitted that
part of the disputed land had
been left fallow but
subsequently seem to dilute the
damning admission in his own
pleading. This the Court of
Appeal should have considered
before making its finding on the
issue of fallow land.
After carefully perusing
the judgment of the record of
appeal and the written
submissions of both parties, we
can safely conclude that there
were very serious lapses in the
judgment of the Court of Appeal.
These lapses as have been
demonstrated proved fatal to the
appellant in this case. But for
the lapses, the judgment of the
trial court wouldn’t have been
set aside. The Court of Appeal
failed to heed to the warning of
Lord Widgery in Cross v Hillman
Ltd (supra). An appellate court
which sees only the transcript
and does not see the witnesses,
must hesitate for a very long
time before reaching a
conclusion different from the
trial judge as to the
credibility and honesty of a
witness.
The trial judge could not
be said to have 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
properly instructing itself on
the law would have reached. It
was therefore incompetent for
the Court of Appeal to interfere
with the findings of the trial
court. The appeal therefore
succeeds on the first ground.
Ground II.
The Court of Appeal erred when
it overturned the judgment of
the trial court on ground that
the Plaintiff failed to prove
the boundaries of his land.
The second ground of
appeal is that the Court of
Appeal erred when it overturned
the judgment of the trial court
on ground that the appellant
failed to prove the boundaries
of his land. The appellant in
his written submission asserts
that the High Court rightly set
out the contest between the
parties and ruled in favour of
the appellant only for the
respondent to seek to change the
issues between the parties on
appeal. The respondent on the
other hand did not address this
issue in his written submission
but went on to give a litany of
authorities on the need for a
party to identify the land he
claim. Upon going through the
record we agree with the
assertion of the appellant in
this case. At the trial court,
the identity of the disputed
land was not an issue before the
court.
It is trite learning that
issues set down for trial are
determined by the pleadings of
the parties to the dispute. In
the instant case, the defendant
never challenged the plaintiff’s
description of the disputed land
endorsed on his writ and
statement of claim, hence, the
trial courts failure to add the
identity of the land as part of
the issues set for trial. In Re
Ashalley Botwe Lands [2003-2004]
SCGLR 420, the Supreme Court in
holding 4 held as follows:
“Although the general
principle that a claim for
declaration of title or an order
for injunction should always
fail if the plaintiff failed to
establish positively the
identity of the land claimed
with the land in dispute was
sound law, its application was
not mandatory where the identity
or boundaries of the land
claimed was undisputed. Where
the identity or the boundaries
of the land in dispute as
pleaded by the plaintiff was
admitted or not denied by the
defendant, the applicable
principle was that since no
issue had been joined, no
evidence needed to be led on the
identity of the land. In the
instant case, however, even
though the defendants failed to
specifically deny the detailed
description of the land as
pleaded by the plaintiffs in the
statement of claim and therefore
the plaintiffs were not enjoined
to prove the identity of the
land, yet on the evidence they
succeeded in discharging that
burden through their statutory
declaration, exhibit A, which
contained a detailed description
of the land with full bearings
and distances and with an
attached plan. Since not a
single issue was raised under
cross-examination of the first
plaintiff witness with regard to
the exhibit and its contents,
the rule of implied admission
for failure to deny by
cross-examination would be
applicable. Accordingly, the
plaintiffs were not bound to
produce other witnesses on the
same issue of the
identification. Accordingly, the
Court of Appeal was wrong in its
conclusion that the plaintiffs
had failed to prove the identity
of the land in dispute. Fori v
Ayirebi [1966] GLR 627, SC and
Mantey v Botwe [1989-90] 1 GLR
479, SC applied”
The failure of the
respondent in this case to
challenge the appellant’s
description of the land in his
statement of defence on the
strength of In Re Ashalley Botwe
Lands was fatal. In his
statement of case against the
appellant’s motion for interim
injunction, the respondent
admitted (at page 38) that the
plaintiff had aptly described
the land in dispute. I will
reproduce the said statement of
the respondent to demonstrate
the respondent’s admission. The
respondent said as follows:
“The defendant case is
that he became an owner of a
vast track of land, aptly
described in the plaintiff’s
writ as well as defendant’s
counterclaim by devolution.”
One will find it strange
that the respondent after making
such a categorical statement
would turn round to file an
appeal based on a matter he had
previously admitted to. This
suit was not fought on the
grounds of identity and
dimensions of the subject
matter. With this in mind, we
have no choice than to uphold
this ground of appeal of the
appellant. The identity of the
land was not in dispute and the
Court of Appeal erred when it
overturned the judgment of the
Court of Appeal on the ground
that the appellant in this case
failed to prove the boundaries
of the land.
Ground III
The Court of Appeal erred when
it held that the trial judge
ought to have rejected
plaintiff/respondent/appellant’s
evidence because it conflicted
with
plaintiff/respondent/appellant’s
pleadings.
In ground 3 of this appeal
the appellant submits that the
Court of Appeal erred when it
held that the trial judge ought
to have rejected the evidence of
the appellant because it
conflicted with the appellant’s
pleadings. The appellant in his
written submission argue that
there was no departure in their
pleadings and also that the
appellant’s evidence was in fact
in accord with his pleadings.
The respondent on the other hand
disagrees with the appellant and
asserts that on the strength of
Appiah v Takyi (1982/83) 1 GLR 1
the Court of Appeal was
justified in ruling against the
appellant. Before we discuss the
issue of evidence departing from
the pleadings, we address the
appellant’s claim that his
evidence was in accord with his
pleadings.
In paragraphs 8 and 9 of
his statement of claim the
appellant pleaded as follows:
“8. In the course of time
a sister of the plaintiff’s
family married a man from Fongo
but not a relative of the
defendant.(es)
9. The said sister
approached the plaintiff’s
grandfather for a land for her
husband to farm and feed her
children.
10. That my grand-father
obliged and gave her a portion
of the Northern part of their
land.”
The appellant from these
paragraphs asserts that a female
member of his family married a
man from Fongo but not someone
related to the respondent. The
said female member approached
the appellant’s grandfather to
be given land for her husband to
farm on and feed their children.
However, the appellant in his
testimony to the court gave a
different account of events as
follows (at page 87):
“My father gave the
disputed land to Maamani. The
Defendants are relations of
Maamani and they have taken over
the land”
The appellant in his
testimony in court is now saying
that his father not grand-father
gave land to a relation of the
respondent whom he had
previously said was not a
relative of the person the
sister of his family married.
The evidence of the appellant
clearly departed from his
pleadings in his statement of
claim.
Commenting on this
inconsistency between the
pleadings and evidence on oath
this is what the Court of Appeal
said;
“It is noted that in his
pleading, the plaintiff failed
to mention the name of the man
his sister married from Fongo.
It was defendant who disclosed
in his pleading that their
relative Maamani married a woman
from Kpongo. Maamani, he said,
farmed on an area outside his
land as described and they have
nothing to do with Maamani’s
lands or farms.
“Despite plaintiffs
pleading that it was their
sister the land was given to by
their ancestor for the use of
her unnamed husband and
non-relative of the defendant
herein, the plaintiff gave the
following evidence;
“My father gave the disputed
land to Maamani. The defendants
are relations of Maamani and
they have taken the land Maamani
was farming on the land. Maamani
is deceased but his family is
still farming on the land. The
defendant erected a sign post on
the land. The land belongs to my
family. The defendant has no
right to erect a signpost on the
land. This is why I issued the
writ”.
“It is trite knowledge
that pleadings compel the
parties to give each other
proper notice of the issues that
will be raised and the case that
will be met at the trial, so as
to enable each party prepare
adequately, thus eliminating
surprises at the trial and
assist the court to identify the
matters in issue beyond which
neither party may stray in the
conduct of the claim or defence
except upon amendment. That
being so, at the trial a party
must adduce evidence in proof of
the material issues or facts
upon which the claim or defence
is founded.
In the instant case, the
defendant has completely denied
all the claims of the plaintiff
and put him to strict proof. In
fact he denied knowledge that
the woman Maamani married from
Fongo was a sister of the
plaintiffs let alone that she
was granted any portion of land
to feed on. So the evidence led
by the plaintiff that the
portion of the land was given to
Maamani whose descendants are
now farming is a material
departure from his pleadings
which the trial court
instructing itself, should not
have countenanced.”
Even though the Court of
Appeal cited the case of Effisah
v Ansah (supra) to remind
itself of not harping on minor,
immaterial, insignificant or
non-critical inconsistencies to
deny justice to a party if the
inconsistencies or conflicts are
reconcilable, it nevertheless
came to the conclusion that the
plaintiffs pleadings was
markedly different from the
evidence on record.
What is the rule against
departure? The rule against
departure states a party will
not be allowed to set up a claim
in a subsequent pleading
inconsistent with his previous
pleading. This has been applied
and expatiated upon in several
cases particularly Odoi v
Hammond [1971] 1 GLR 375.
However, the issue in this case
can be distinguished from the
rule against departure which was
dealt with at length by both
counsel in their written
submissions. The issue in this
case has to do with where a
party’s evidence in court is
inconsistent with his pleadings.
The respondent in his
written submission cited the
case of Appiah v Takyi (1982/83)
1 GLR 1 which held that where
there is a departure from
pleadings at a trial by one
party whereas the other’s
evidence is in accord with his
pleadings, the latter’s case was
as a rule preferable. In as much
as we consider the decision in
Appiah v Takyi sound, we will
defer the application of that
decision to the present case.
The case of Appiah v Takyi can
be distinguished from the
current case. The plaintiff in
the case of Appiah v. Takyi in
his reply and evidence in court
departed from his averment in
his statement of claim. The case
of Appiah v Takyi is case which
deals with the rule against
departure.
In Akufo-Addo v Catheline
[1992] 1 GLR 377 the court held
per Osei-Hwere JSC that the
departure rule applied to
pleadings only and not evidence
that contradicts the pleadings.
These were the words of the
learned judge:
“…This departure rule is
strictly applied to pleadings,
and not to evidence which seeks
to contradict pleadings. For
Order 19, r. 17 of L.N. 140A
provides that “no pleading
shall, except by way of
amendment, raise any new ground
of claim or contain any
allegation of fact inconsistent
with the previous pleadings of
the party pleading the same.”
The rule means that a party’s
second pleading must not
contradict his first…”
But was there really a
material departure? We do not
think so. The so called
departure here refers to two
things. Whilst in one breath it
was the father of the plaintiff
who granted the land to the lady
who married the Fongo man, in
another breath it was the
grandfather. This we do not see
as departure. There may be some
inconsistency here, but again
when dealing with oral history,
genealogy, and devolution of
property, words like father,
grandfather and ancestors are
easily interchangeable. It is
not uncommon to hear a chief
say, “I own the land from point
A to point B. I won the land
after defeating so and so chief
in the battle of…..”. In reality
such a chief may be talking
about a war that was fought some
hundreds of years ago by an
earlier occupant of the stool.
The second thing that
court of appeal harped on as
departure is appellant’s
pleading in his statement of
case (par 8) that the man who
married appellant’s sister now
identified as Maamani is not a
relation of the defendant, as
against his sworn evidence that
the defendant is a relation of
Maamani. Coming to think of it
is this inconsistency germain to
the resolution of the bigger
issue of who originally owned
the land?
The appellant’s case is
that his ancestors acquired a
large tract of land through
settlement a portion of which
they gave to one Maamani who
married a lady from their clan.
It is this land granted Maamani
on which the respondent is
farming and has gone to erect a
signpost. The plaintiff is not
asking for recovery of
possession. He is merely asking
for a declaration of title. In
deed but for the signpost that
was erected by the defendant he
would not have brought this
action.
The defendant admits that
he is a relation of Maamani. He
admits that the said Maamani
married a woman from Fongo, but
he said the land on which
Maamani was farming is different
from the land in dispute. He
then set out how their family
came to occupy the land in
dispute. We believe that the
departure or inconsistency which
was wrongly harped upon by the
Court of Appeal was not central
to the resolution of the broader
issue of which family owns the
disputed land.
The case before this court
is one where a party has in his
evidence in court departed from
his statement of claim. In such
a case we believe the court was
duty bound to evaluate the
pleadings of the party and the
evidence before the court and
make its own findings. The trial
judge did evaluate the totality
of the evidence on record and
came to the conclusion that he
did. Based on reasons already
discussed above and the evidence
on record, we believe that the
Court of Appeal erred in
departing from the findings of
the trial court.
We hold that the trial
judge arrived at the right
findings on the evidence and his
decision to decree title of the
disputed land in the plaintiff’s
family is right. Consequently we
set aside the decision of the
Court of Appeal and reinstate
the judgment of the trial judge.
The appeal is allowed and
the plaintiff/appellant succeeds
on his claim whilst the
defendant/respondent’s
counterclaim is dismissed
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO
(MS)
(CHIEF JUSTICE)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
MICHAEL GYANG OWUSU FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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