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Land - Ownership - Trespass - Counterclaim
- Whether performance of various
overt acts of ownership and
possession without let or
hindrance from anybody makes
land ancestral land -
HEADNOTES
It must be noted that there were
two different sets of writs of
summons initiated by persons
from two different families
against the same defendant On
the 7th day of August
2007, the Plaintiffs herein in
the 1st writ of
summons issued the writ against
the Defendant in which they
claimed the following
reliefs:-“Declaration of title
to all that piece or parcel of
land lying, situate and being at
the foot of the Krobo Mountains
measuring 25.51 square miles or
16.325.37 acres more or less and
bounded on the North by a parcel
of land belonging to the Manya
Kpongunor and Akwenor families;
on the East by a parcel of land
belonging to the Dormkpati
Adjimeh; on the South by the
Dorhwe Stream and the Mueyo Hill
and on the West by a parcel of
land belonging to the Suisui
family of Manya Krobo An order
for perpetual injunction
restraining the defendant
whether by himself, his
servants, agents, heirs and
assigns from interfering with
the Plaintiffs’ family’s
ownership, occupation or
possession of the land described
The Defendant also filed a
counterclaim against the
Plaintiffs in the first writ of
summons, and claimed against the
plaintiffs therein, the
following reliefs: Seeks a
declaration of all that piece or
parcel of land popularly known
as Akuse lands bounded on the
North by Volta River, on the
South by Tsoyumutso, on the East
by Lomen Streams and on the West
by Okwe stream as established by
Jackson Report and Gazatted as
aforesaid. An order to quit the
plaintiffs from the land which
they now occupy unlawfully as
grantees of Theodore Tetteh
Dugbartey and Samuel Nartey
Degber, whose case was dismissed
in the Supreme Court on 30th January,
2007 in the presence of the 1st Plaintiff
or Plaintiffs who came to
Supreme Court to make sure that
obviously hoping that the
Defendant will lose -
HELD
:-
In the premises, the appeal
herein lodged by the Defendant
against the court of Appeal
judgment dated 10th February,
2016 is accordingly dismissed as
woefully lacking in substance
and merit. On the contrary,
judgment is entered in favour of
the Plaintiffs in both suits as
per the Court of Appeal judgment
of even date. The Judgment of
the Court of Appeal in favour of
the Plaintiffs herein is thus
affirmed, and by necessary
implication, that of the High
court, dated 5th Day
OF February, 2015.
Appeal fails and is thus
dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Articles 129
(3) and 136 (5)
High Court (Civil Procedure)
Rule, 2004 C. I. 47 Order 43,
rules 3 (1) and (2) and 1
applicable. Order 43 r. 3 (1)
(a) and (2)
CASES REFERRED TO IN JUDGMENT
Sogbaka v Tamaklo [1973 GLR 27
Hilodjie & Anr v George
[2005-2006] SCGLR 974.
Nyikplokpo v Agbodortor
[1987-88] GLR 165 at 171
George, Hilodjie v [2005-2006]
SCGLR 974
Ababio v Kanga (1932) 1 WACA
253 at 254
Adjeibi –Kojo v Bonsie (1957) 3
WALR 257 at 260 PC
Achoro v Akanfela [1996-97]
SCGLR 209
Adwubeng v Domfeh [1996-97]
SCGLR 661.
Obeng v Assemblies of God,
[2010] SCGLR 300,
Akuffo-Addo v Cathline [1992] 1
GLR 377
Fosua & Adu Poku v Dufie
(Deceased) & Adu Poku Mensah
[2009] SCGLR 310 at 313,
Gregory v Tandoh IV & Hanson
[2010] SCGLR 971.
Mrs. Christian Aboa v Major
Keelson,
consolidated Suit No.J4/11/2010
dated 16th March,
2011
BOOKS REFERRED TO IN JUDGMENT
Customary Land Law in Ghana
Nii Amaa Ollennu
Thoughts on Government published
on page 284 “in the Quotable
Founding Fathers, by John Adams,
edited by Buckner F. Melton”
DELIVERING THE LEADING
JUDGMENT
DOTSE, JSC:-
COUNSEL.
ALEX AGYEI-AGYIRI FOR
THE DEFENDANT/APPELLANT/APPELLANT.
YAW OPPONG FOR
THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.
JUDGMENT
DOTSE, JSC:-
The tenacity of purpose,
with which the
Defendant/Appellant/Appellant,
hereafter referred to as
Defendant, has pursued the
appeal against the Plaintiffs/
Respondents/ Respondents in
writs Nos I and 2 respectively
in this court after his serial
loss of the suits in both the
High Court and the Court of
Appeal despite the overwhelming
evidence on record to the
contrary, has led us to commence
this judgment with what we call
the “Basic Principles” stated by
Nii Amaa Ollennu, a
distinguished Jurist, author and
statesman in his pioneering book
entitled, “ Customary Land Law
in Ghana” page 1 thereof, where
the author states thus:-
“The term land as understood in
customary law has a wide
application. It includes the
land itself, i.e. the surface
soil, it includes things on the
soil which are enjoyed with it
as being part of the land by
nature, e.g. rivers, streams,
lakes, lagoons, creeks, growing
trees, like palm trees and
dawadawa trees, or as being
artificially fixed to it like
houses, buildings and structures
whatsoever, it also includes any
estate, interest or right in to
or over the land or over any of
the other things which land
denotes; e.g. the right to
collect snails, herbs or to hunt
on land. Therefore any suit, the
substance of which is a claim to
ownership, possession or
occupation of land or a claim to
any estate interest or right
in, to, or over land or any such
thing on land is a land suit.
Consequently, a claim to
ownership of buildings and
structures on land is a land
suit, so is a claim to waters,
streams, the foreshore, creeks,
including the right to fish in
such waters…”
FACTS
It must be noted that
there were two different sets of
writs of summons initiated by
persons from two different
families against the same
defendant as the title of the
suits indicate in the High Court
and this has culminated through
the Court of Appeal to this
court.
It must also be noted
that, initially the suits were
against Peteye Osei Quarshie,
and upon his demise, he was then
substituted by Osei Godwin Teye,
the Defendant herein.
FIRST WRIT
On the 7th day
of August 2007, the Plaintiffs
herein in the 1st
writ of summons issued the writ
against the Defendant in which
they claimed the following
reliefs:-
a. “Declaration of title
to all that piece or parcel of
land lying, situate and being at
the foot of the Krobo Mountains
measuring 25.51 square miles
or 16.325.37 acres more or
less and bounded on the North by
a parcel of land belonging to
the Manya Kpongunor and Akwenor
families; on the East by a
parcel of land belonging to the
Dormkpati Adjimeh; on the South
by the Dorhwe Stream and the
Mueyo Hill and on the West by a
parcel of land belonging to the
Suisui family of Manya Krobo
b. Damages for
trespass
c. Recovery of
possession
d. An order for
perpetual injunction restraining
the defendant whether by
himself, his servants, agents,
heirs and assigns from
interfering with the Plaintiffs’
family’s ownership, occupation
or possession of the land
described in relief (a) of the
writ of summons.”
SECOND WRIT
On the 27th of
September 2007 the Plaintiffs in
the second writ of summons also
issued a writ of summons
claiming the reliefs endorsed
therein as follows against the
same defendant:-
a. “Declaration of title
to all that piece of land lying,
situate and being at Kpong
covering an approximate area of
11,450.87 acres
more or less and bounded on the
North by the Volta River; on the
East by a parcel of land
belonging to the Dokutse Peteye
family; on the South by the
Dorhwe Stream and on the West by
a parcel of land belonging to
the Manya Aklomuase family.
b. Damages for
trespass
c. Recovery of
possession
d. An order for
perpetual injunction restraining
the defendant whether by
himself, his servants, agents,
heirs and assigns from
interfering with the Plaintiffs’
family’s ownership, occupation
or possession on the land
described in relief (a) of the
writ of summons.”
The Defendant also filed a
counterclaim against the
Plaintiffs in the first writ of
summons, and claimed against the
plaintiffs therein, the
following reliefs:-
1. “Seeks a declaration
of all that piece or parcel of
land popularly known as Akuse
lands bounded on the North by
Volta River, on the South by
Tsoyumutso, on the East by Lomen
Streams and on the West by Okwe
stream as established by Jackson
Report and Gazatted as
aforesaid.
2. An order to quit the
plaintiffs from the land which
they now occupy unlawfully as
grantees of Theodore Tetteh
Dugbartey and Samuel Nartey
Degber, whose case was dismissed
in the Supreme Court on 30th
January, 2007 in the presence of
the 1st Plaintiff or
Plaintiffs who came to Supreme
Court to make sure that
obviously hoping that the
Defendant will lose.”
What are the proximate
causes of the writs against the
Defendant by the Plaintiff’s in
both suits?
IN RESPECT OF FIRST WRIT/SUIT
SUIT NO. EI/113/2007
The Plaintiffs therein
claimed the land endorsed
therein in the writ as part of
their ancestral family heritage.
The capacity of the Plaintiffs
in this suit are as follows:-
1st Plaintiff
is the head of the Manya
Aklomuase family of Agormanya
Lomodje, 2nd
Plaintiff is the Sipim of the
Lomodjie clan of the Aklomuase
family and the third Plaintiff
is a member of the Lomodje
clan/caretaker of the Manya
Aklomuase family stool
respectively.
The Plaintiff’s case is
that, the land endorsed in the
writ of summons is their
ancestral land founded several
centuries ago by their ancestors
in respect of which they had
performed various overt acts of
ownership and possession without
let or hindrance from anybody or
group of persons whatsoever
including the Defendants and
their predecessors.
However, the quiet
enjoyment which the Plaintiffs
enjoyed in respect of the land
came to an abrupt end shortly
before the institution of the
present suit in 2007 against the
Defendant following acts of
trespass committed by the
Defendant his privies, agents
assigns etc.
These acts of trespass
found expression in the
following unlawful and wrongful
acts of conduct by the
Defendant.
i. Defendant
entered portions of the
Plaintiff’s land claiming title
therein.
ii. Upon enquires, it
emerged that the Defendant was
relying on a purported writ of
possession issued in the
Defendants favour by the Circuit
Court, Akropong-Akwapin pursuant
to a judgment of the Supreme
Court.
It must however be
emphasized that neither the
Plaintiffs nor their
predecessors in title were
parties to the said judgment in
respect of which the writ of
possession had been issued.
iii. The further acts of
Defendant lay in his alienating
portions of the Plaintiffs’
family lands to third parties.
IN RESPECT OF THE 2NDWRIT
SUIT NO E1/6/08
Barely a month and a half
after the Plaintiffs in the 1st
writ commenced their writ
against the Defendant herein,
the Defendant also trespassed
unto the Plaintiffs land in the
2nd writs claiming
and relying on a writ of
possession from the Circuit
Court Akropong-Akwapim which was
based on a Supreme Court
Judgment.
Like the case in the first
writ, the Plaintiffs herein and
their predecessors in title were
not parties to the said suit
upon which the Defendant relied
for his writ of possession.
The Defendant also
brazenly commenced acts of
alienation of the Plaintiffs
land to third parties as a
result of which the Plaintiffs
instituted the suit against him
in the High Court, Koforidua.
The capacity of the
Plaintiffs herein in the second
suit are head of the Dormkpati
Adjimeh family of Manya
Kpongunor, for the 1st
Plaintiff therein, whilst the 2nd
and 3rd Plaintiffs
are elders respectively of the
said family.
Like the first set of
plaintiffs, the Plaintiffs
herein in suit No. E1/6/08
asseverated that the disputed
land formed part of their
ancestral family land in respect
of which they had performed
several overt acts of ownership
without let or hindrance from
anybody including the Defendant
and his predecessors until the
acts of trespass complained
about which led to the
institution of the suit.
DEFENDANTS RESPONSE TO BOTH
SUITS
The Defendant maintained
in both suits that the land in
dispute belonged to the
Dokutse/Peteye/Atta Abla family
of which he is a member.
He contended that the land
was acquired from time
immemorial by Dokutse Peteye who
left Osuyomua and settled at
Amedeka and later went to settle
on Akuse lands before finally
going to the Krobo mountains as
first settler.
TRIAL AND DECISION OF THE HIGH
COURT
The case eventually
proceeded to trial. The parties
gave evidence, called witnesses
and relied on a Plethora of
exhibits, to wit judgments,
Jacksons report and a composite
plan that was ordered during the
trial of the suit in the High
Court.
Eventually, Suurbareh JA,
sitting as an additional Judge
of the High Court on the 5th
day of February 2015, delivered
a well reasoned and considered
judgment in which he delivered
judgment in favour of the
Plaintiffs in both suits, whilst
dismissing the Defendants
counterclaim in the following
terms:-
“The Plaintiffs in the two suits
have persistently contended that
the defendant’s family
expansionist drive began in
2005/2006 following their
victory in the Supreme Court
case of SAS George (supra). This
put the burden of proving
otherwise on the defendant and
which he totally failed to do by
his failure to produce documents
in respect of these grants
showing the time they were made.
With regard to the compensation
received, the evidence is clear
that the two families,
especially the Plaintiffs in the
second suit, also had their
lands flooded by the Kpong Dam
project and that the defendant’s
family only received theirs. The
receipts show that the claim is
quite recent. From the findings
made so far concerning the
extent of the defendant’s family
land, coupled with his failure
to show when these grants were
made, and their relation to the
distinct lands being claimed by
the plaintiffs in the two suits,
even though it is not in doubt
that these grants have been
made, if they affect portions of
the disputed land at all, they
are invalid as the defendant was
not entitled to the land
affected by these grants. He was
therefore a trespasser and gave
no valid title. From exhibit
“U” “AA” to “CC” it is more
probable than not that the
defendants’ family began their
expansionist drive after 2005.
Also see Exhibit “5” from
the University of Ghana.”
“With regard to the additional
issues filed on behalf of the
defendant, these will be taken
together as they all deal with
the issue of whether or not the
Plaintiffs in the two suits can
relitigate title to the disputed
land. These issues are:
Whether the matter before the
court is a legitimate issue for
enquiry by the court; Whether
the land in dispute has been
examined and/ or affected by
previous decisions of the
Supreme Court, and Whether the
plaintiffs are stopped (sic)
from relitigating the matter
herein in view of the previous
Supreme Court decision.
Learned counsel for the
defendant referred to Articles
129 (3) and 136 (5) of the
Constitution 1992 as well as the
case of Sogbaka v Tamaklo
[1973 GLR 27 on the doctrine
of stare decisis, and submitted
that the decisions of the
Supreme Courts being relied upon
here by the defendant were
binding on this court and
further that this court cannot
criticize them. The cases being
relied upon here are the SAS
George and Richard Fliwoski
cases supra. This court has
already dealt with these
judgment and came to the
conclusion that the Plaintiffs
in the present suits, not been
parties or privies to those
suits, are not estopped from
bringing their present actions.
The Court also referred to the
prophetic vision of Wood JSC (as
she then was) when she
lamented that there would not be
finality in the matter by virtue
of the fact that the Aklomuase
family had not been joined.
Now to the issue of whether the
Plaintiffs in the two suits are
entitled to the land they are
claiming in these actions.
From the preponderance of the
evidence, the court is satisfied
that they have discharged the
burden about their claims.
The defendant after denying
that his family’s Western
boundary in relation to the
Volta River is the point where
the Okwe enters the Volta River,
eventually admitted this fact
under intense cross-examination
just as his northern boundary is
not the whole of the Volta
River, but from Okwe to the
Lomen, so his Western boundary
cannot be the whole of the Okwe
or even from the point where it
passes under the bridge on the
Somanya road, otherwise the
exact point of the land in
relation to the Okwe would have
be(sic) stated in the various
judgment and the Jackson Report.
The defendant, who is laying
claim to the Plaintiffs’ lands
at Kpong and Okwenya, also
eventually admitted that his
family land did not include
Kpong or Okwenya junction and
further that his family did not
claim the Krobo Hills. By these
eventual admissions he also
showed that he was not a
truthful witness. He also failed
to identify his land.
In sum therefore, whilst the
plaintiffs are adjudged entitled
to the relief they seek in their
respective suits, the
defendant’s counterclaim in
respect of both suits fail”.
Emphasis
We have had to quote in
extenso from the judgment of the
High Court to indicate the many
concrete findings of fact that
had been made and supported by
references to cogent historical,
documentary evidence as well as
legal arguments.
APPEAL TO COURT OF APPEAL AND
ITS DISMISSAL
Quite surprisingly, the
Defendants appealed this
decision to the Court of Appeal
which in a unanimous decision
rendered on the 10th
of February 2016 dismissed the
said appeal. Still undaunted the
Defendant has mounted this
appeal to this court on the 31st
day of March 2016 with the
following as the grounds of
appeal:
1. The judgment is
against the weight of evidence
on record.
2. The Court of Appeal
erred when it affirmed that “we
are satisfied that the land
described by the Jackson
Commission as land belonging to
the defendant’s family does not
extend to the disputed land.
3. The Court of Appeal
erred in holding that the
judgment tendered by the
appellant “could not be used as
per rem Judicatam”.
4. The Court of Appeal
erred in holding that from the
evidence “the Defendants
woefully failed to prove acts
and events within living memory
that would qualify as
undisturbed ownership or
possessory rights.”
5. The Court of Appeal
erred in affirming that “the
trial judge did not arbitrarily
award the damages and its award
did not infringe any law.”
6. The Court of Appeal
erred in affirming the wrong
findings of fact made by the
trial judge.
7. Further grounds of
appeal will be filed upon
receipt of the record of
proceedings.
3. The reliefs sought
from the Supreme Court are:
a. The reversal of the
judgment of the Court of Appeal
and the High Court and the grant
to the Appellants of judgment
with costs.
Out of the substantive six
grounds of appeal filed, ground
5 supra had been withdrawn by
learned counsel for the
Defendant, Alex Agyei-Agyiri.
Since no additional grounds have
been filed, we will confine
ourselves to the remaining five
grounds of appeal.
STATEMENTS OF CASE OF PARTIES
AND REPLY BY DEFENDANT
We have perused the
statements of case filed by
learned counsel for the parties
in this case, Godfred Yeboah
Dame for the Plaintiffs and Alex
Agyei-Agyiri for the defendant.
We take note also of the
reply filed by learned counsel
for the defendant. We have taken
note of all the arguments made
by the respective counsel in
their statements of case. We
want to reiterate the fact that
we have diligently perused the
pleadings, the evidence led in
this case, the reliance on the
many court judgments and other
exhibits of historical
importance as well as the many
Survey Plans and Site Plans that
have been tendered. Even though
we are of the view that most of
these exhibits and plans, were
not germane and relevant to the
case, we have taken time to
peruse and or study same to
enable us arrive at a just
conclusion in the matter.
In this respect therefore,
we shall proceed to deal with
the resolution of the grounds of
appeal on the basis that the
arguments of both counsel had
been considered and applied
where necessary.
1. GROUND I
Anybody with sound
principles of land law would
appreciate the fact that, both
the learned trial High Court
Judge and the learned Judges of
the Court of Appeal considered
in detail the entire evidence
led before the court in
addition to all the exhibits
referred to therein. Some of
these documents relied upon are
the following:-
-
Exhibit CE1 – Site Plan –
This is the composite Plan
-
Exhibits A & B are all
Survey Plans
-
Exhibit C – is the
document on the (Krobo
Traditional Social and Religious
life)
-
Exhibit D is the Jacksons
Report together with an
authentication note from the
office of Public Record and
Archives Administration
Department (PRAAD)
-
Exhibits G, H, D, K, L, M
and N which are Rulings,
Letters, Indentures, Lease
Agreement, Minutes etc.
-
Exhibit “A” “B” “C” and
“E” in the second suit
representing, plans, judgment,
Letters and Survey Plan
respectively.
-
Exhibit 2 – Judgment in
the case of Maria Maku Ata Abla
and Anr. v Josephina Otibo &
Ors, High Court, dated 29/4/1975
-
Exhibit 3 – Judgment in
the case of SAS George v Johnson
Hilodjie & Anr – Supreme Court
dated 20/4/2005
-
Exhibit 7 – Theodore T.
Dugbartey and Anr. v Richard
Flisowski and 2 Ors just to
mention a few.
In considering the
submissions of learned counsel
for the Defendant on why the
appeal should be allowed,
learned counsel made really
strenuous efforts to convince
this court why the two judgments
of the lower courts should be
set aside
The duty cast on the first
appellate court in that, an
appeal is by way of rehearing
and that a party who alleges
that a judgment is against the
weight of evidence is asking the
appellate court to review the
entire evidence on record, that
is both oral and documentary and
then correct all errors that
arose during the evaluation of
the evidence and apply them to
relevant case laws, statutory
provisions etc. has not been
lost on the learned Judges of
the Court of Appeal in this
case.
We have found in the Court
of Appeal judgment that they
properly evaluated the judgment
of the learned trial Judge
vis-à-vis the entire evidence,
oral and documentary and
concluded as follows:-
“The Defendant’s position is
that the Plaintiff’s lands form
part of his land and the trial
Judge made wrong findings of
fact when he concluded that
Akuse Lands do not include land
at Akuse junction and Akuse town
is at least five miles away from
Akuse junction. According to
the Defendant, the above wrong
findings of fact which
influenced the decision of the
trial High Court is not
supported by the evidence on
record. The trial Judge
considered the composite plan
Exhibit CW1 (sic) (CE1) and we
agree with the trial Judge that
it did not disclose any of the
area covered by the Judgments
obtained by the Defendants in
the various suits wherein he
pleaded in his statement of
defence and tendered in
evidence. The important facts
depicted from the composite plan
are the parties respective
boundaries shown on the ground
and the site plans, the
Defendant’s building, some
grants made by the Defendant and
the disputed area. The trial
Judge never said in the record
that the composite plan was not
relevant”. Emphasis
We on our part have also
taken a look at this Exhibit
CE1, which is the correct
denotion of the composite plan.
We have studied it, and found
all the comments made by the
learned trial Judge and
confirmed by the learned Judges
of the Court of Appeal as borne
out by the said Exhibit. It must
be noted that, since Exhibit
“CE1”, is the composite Plan, it
is a very important document
whose bearing on the case must
be really incisive. This is
because it is the Survey Plan
which positions the lands as
shown to the Court appointed
surveyor by the parties during
the survey as well as the
superimpositioning of any site
plans or land documents that
they have in relation to court
judgments as well as any overt
acts of ownership and of
trespass, shown to the surveyor
during the survey if at all.
We on our part, having
critically studied this Exhibit
“CE1” are of the considered view
that the Court of Appeal and by
necessary implication, that of
the High Court were right.
We accordingly dismiss
this ground of appeal as lacking
in merit and substance.
GROUND 2
We would not detain
ourselves for any considerable
length of time on this ground.
This is because, apart from
perusing the entire Jackson’s
Report, we have also put the
said report in proper context.
Having done just that, we
realize that the Court of Appeal
quoted relevant portions of the
trial court judgment in which
they gave reasons why the
Jackson Report, upon which the
Defendant relied and based his
case, did not require the type
of advantage they sought from
the court.
In concluding this matter,
we agree substantially with the
Court of Appeal when they stated
as follows:-
“From exhibits “CE1” and “1” the
Akuse Lands include Akuse,
Amedeka. The disputed land is
far away from the stretch of
land from Okwe to the lemon
creck on the right side of River
Volta. There is undisputable
evidence that the Krobo’s, that
is both Manya and Yilo people
were the first settlors of the
Krobo Hills and they conveyed it
to the British. We are
satisfied that the land
described by Jackson Commission
as land belonging to the
Defendant Family does not extend
to the disputed land.” Emphasis
From the above, we have no
hesitation in dismissing this
ground of appeal as well.
GROUND 3
We are indeed surprised,
that learned counsel for the
Defendants, with the benefit of
the records of appeal formulated
the above ground of appeal. What
is this judgment? This is the
case of SAS George v Johnson
Hilodjie and Emmanuel Teteh
Kwasie delivered by the Supreme
Court on 20th April
2005 and reported as Hilodjie &
Anr v George [2005-2006] SCGLR
974. In the first place, the
subject matter of the suit
therein was 34.6 acres of land
lying and being at Okwenya and
was described thus:-
“On the South-east by
Akromase people property
measuring on that side 1,000
feet more or less, on the
North-West by
Akosombo-Afienya Motor Road
measuring on that side, 1000
feet more or less, and on the
North-East by Akromase peoples
Land measuring on that side
1,500 feet more or less
enclosing an area of 34.65
acres.”
Another judgment relied on
by the Defendants is the Supreme
Court of the Gold Coast Colony,
Eastern Province dated
11/11/1924 intitutled, Acting
Manche Tetteh Anime v T. K.
Otibo, tendered by
Defendants as exhibit 5.
The third judgment relied
upon by the Defendants in the
case is that of the Court of
Appeal intitutled Theodore T.
Dugbartey v Flisowski and 2 Ors
dated 14/10/2002, covering an
acreage of 20.6 acres of land at
Okwenya.
The trial court made very
notable and pronounced comments
on the efficacy of the said
judgments. But the coup de Grace
was delivered by the Court of
Appeal, speaking unanimously
through Adjei JA as follows:-
“The Plaintiffs admitted the
descriptions of the defendant’s
land as contained in the Jackson
Commission Report and affirmed
by the Supreme Court in Hilodjie
v George (supra) but went
ahead to describe their land
which is entirely different from
the Defendant’s land. The
Defendant failed to rebut this
important evidence except
relying on the numerous
judgments and Jackson’s Report
in which none of them included
the Plaintiffs lands as part of
the Defendant’s land. From the
evidence on record, we affirm
the decision by the trial Judge
that Okwenya refers to all the
lands where River Okwe stretches
through and some of the
settlements at the banks of
River Okwe are also known as
Okwenya. It is not true that
there is only one town or
settlement known as Okwenya.
We are also satisfied that
Okwenya means the edge of River
Okwe and the Defendant’s land is
part of the land where River
Okwe enters the Volta and not
any land on which River Okwe
stretches.” Emphasis
At this stage, we wish to
reiterate the oft cited
principle propounded long ago in
a long line of respected
authorities and referred to by
Abban JA, (as he then was) in
the case of Nyikplokpo v
Agbodortor [1987-88] GLR 165 at
171 where the Court of
Appeal unanimously spoke through
Abban JA (later to become Chief
Justice, now of blessed memory)
thus:-
“To succeed in an action for a
declaration of title to land,
recovery of possession and for
an injunction the Plaintiff must
establish by positive evidence
the identity and limits of the
land which he claims.”
This holds good for the
plaintiffs as well as the
Defendant.
However in the context in
which the Defendant relied on
the cases such as SAS George
v Hilodjie, (supra) and Theodore
Dugbartey v Flisowski
(supra) and then was unable to
call any of the human boundary
owners such as the Akromase
family who were not even called
as boundary owners to support
the identity of the lands which
they claimed. This fact was even
commented upon by Wood JA (as
she then was) in the said SAS
George case supra.
It follows therefore that,
in the real terms of the
principle stated supra, the
defendant’s predecessors having
failed to establish the identity
of the lands in the said cases
referred to supra cannot use
same as operating as estoppel
against the Plaintiffs.
The Court of Appeal, per
Adjei JA, then proceeded to make
the following pronouncements
based on concrete findings of
fact.
1. After examining all
of the Defendant’s judgments
against different families and
people, none relates to the
subject matter of the instant
suit.
2. The Defendant failed
to make even one copy of a
judgment plan available to the
Surveyor when he was ordered to
make a composite plan. There
could have been a
superimposition of these plans
on the composite if they had
been made available.
3. Based on the above,
the court concluded that it was
because the Defendant knew that
none of the lands in the said
judgments is referable to the
land in dispute.
4. That all the
judgments relied on by the
Defendant are referable to Akuse
land.
5. That the judgments
relied upon by the Defendant as
well as the Jackson Report
cannot be used as judgments per
rem judicatam.
6. This is because of
failure to meet the following
conditions:-
i. That the parties in
the earlier judgments are the
same, or their privies, assigns,
agents or their successors in
title.
ii. The capacities in
which the actions had been
instituted and contested in the
earlier judgments should be the
same and must be in reference to
the same subject matter.
It must be noted that, a
party who relies on estoppel per
rem judicatam must prove that
the identity of the previous
suit in respect of which
judgment was given in his
favour are the same in the
subsequent suit under
consideration. See the case of
Ababio v Kanga (1932) 1 WACA
253 at 254 where the
principle was explained.
We therefore on the basis
of the above discussions and
analysis, conclude just as the
Court of Appeal had done that,
“having concluded that Akuse
lands do not extend to the land
in dispute, the question of
estoppel per rem judicatam does
not arise”.
This ground of appeal is
also accordingly dismissed.
GROUNDS 4 & 6 TOGETHER
The law is settled that
where both parties rely on
historical evidence and there is
no conflict in resolving these
rival claims, the best way is to
test the traditional evidence by
reference to facts in recent
years as established by
evidence. That is the only way
by which it can be established
which of the two conflicting
pieces of historical evidence is
most probable. In this respect,
we find as convincing the
conclusion reached by the two
lower courts on why they
preferred the historical
evidence of the Plaintiffs as
against the Defendant.
We wish to refer to the
locus classicus on this legal
principle in the case of
Adjeibi –Kojo v Bonsie (1957) 3
WALR 257 at 260 PC. See also the
application of the above
principle in the following
cases, Adjei v Acquah [1991]
1 GLR 13, Achoro v Akanfela
[1996-97] SCGLR 209, and
Adwubeng v Domfeh [1996-97]
SCGLR 661.
In this instant, we
observe that the trial court
made definite and positive
findings of fact and this has
been affirmed by the first
appellate court. We are also
very mindful of the warnings and
danger associated with an
appellate court departing from
settled findings of fact, unless
same are unsupportable and are
in any case very perverse.
However, after evaluating all
the findings of fact made by the
trial court and concurred in by
the appellate court, we do not
see any real, genuine or
putative grounds to depart from
the said findings of fact. See
cases like, Obeng v
Assemblies of God, [2010] SCGLR
300, Akuffo-Addo v Cathline
[1992] 1 GLR 377 Achoro v
Akanfela (supra), Fosua & Adu
Poku v Dufie (Deceased) & Adu
Poku Mensah [2009] SCGLR 310 at
313, and Gregory v Tandoh IV &
Hanson [2010] SCGLR 971. See
also the unreported Supreme
Court case of Mrs. Christian
Aboa v Major Keelson,
consolidated Suit No.J4/11/2010
dated 16th March,
2011
Having reviewed all the
above authorities, we are of the
opinion that, not finding any
justifiable reasons whatsoever
to depart from the said findings
of fact by the trial court and
concurred in by the first
appellate court, we are certain
that the invitation being made
to us by the Defendant to depart
from these findings because they
were wrong and on the contrary
substitute our own findings will
not only be arbitrary but also
subversive of the settled legal
principles referred to supra.
Grounds 4 and 6 are
accordingly dismissed.
EPILOGUE
We have observed from the
record of appeal that, the
defendant herein whilst opening
his Defence in the 1st
writ or suit therein in the High
Court, tendered Exhibits “7” and
“8” and testified as follows:-
There was another judgment in
2002 an Appeal Court judgment
titled Theodore T. Dugbartey
& Anr v Richard Flisowski & 2
Ors. This is the copy of the
judgment and with permission I
would like to tender same in
evidence. Judgment of the
Court of Appeal dated 14th
October 2002 being tendered
accepted and marked as Exhibit
“7”. “
Continuing, the Defendant
testified thus:-
“Apart from the cases that I
have mentioned involving Dokutse
Peteye Attah Ablah family land,
there was another judgment in
1975 titled Maria Maku Ata
Ablah & Anr v Josephina Otibo
and Chief Sackitey as the
Co-Defendant. This is the
document and with permission I
would like to tender same in
evidence. Judgment of the
High Court, dated 29th
April 1975 being tendered and
marked as Exhibit “8”.
We believe that, pursuant
to the above pieces of evidence,
the defendant applied for and
obtained an Ex-parte,
application for writ of
possession from the Circuit
Court, Akropong-Akwapim. We have
also noted in the record of
appeal that there is an exhibit
in Volume 3, page 171 with the
following entries:-
“In the
Circuit Court of Justice
Akropong
Akwapim
Suit No. 62/94
Theordore
Tetteh Dugbartey and Another
– Plaintiffs
vrs
Richard Flisowski and 2 others
- Defendants
Order for writ of possession
Upon reading the affidavit of
Emmanuel Tetteh Kwashie,
Co-defendant herein of the
Dokutse Peteye Attah Ablah
family House No. P. 3/1 of
Okwenya filed on the 25th
of June 2007, in support of
motion Ex-parte for an order for
Writ of Possession
And upon hearing Alex Agyei
Agyiri Esquire of Counsel for
and on behalf of the
Defendants/Applicants/Respondents
herein,
It is hereby ordered that the
applicants herein go into
possession of the land in
dispute having won their case at
the Higher Courts.
It is further ordered that the
Police Service at Akuse assist
in this exercise.
Given under the hand and the
seal of this court, this 12th
day of July 2007. “Emphasis
In order for the matters
in controversy to be understood
in proper context, we consider
it worthwhile to relate what
transpired in court on the said
12th July 2007, when
the order we have just referred
to in detail was drawn up.
It reads as follows:-
“Circuit Court, Eastern Region
Akropong-Akwapim, on the 12th
July 2007, Before His Honour Yaw
Owusu Kwarteng, Circuit Judge
Suit No. 62/94
Theodore Tetteh Dugbartey –
Plaintiff/Respondent/Appellant
Per His Lawful Attorney
John Teye Dugbartey
Mawuena chambers
Odumase-Krobo
Samuel Nartey
Degbor -
Defendants/Appellant/Respondent
Emmanuel Tetteh
Kwashie -
Co-Defendant
Head of
Dokutse-Teteye Attah Ablah
Appellant/Respondent
Family, Attah Ablah
Memorial
House, No. P. 31,
Okwenye
Plaintiffs
absent
1st
and 2nd Defendants
absent
3rd
Defendant present
Mr. Alex Agyei Agyiri for T.D.
Brodie-Mends for Defendants/
Appellants /Respondent present.
Mr. Agyiri: this is an ex-parte
application by the defendant for
an order, authorizing the
defendants to apply for
possession. We move in terms of
the motion paper and supporting
affidavit. The matter originally
was against the defendant, but
there was an appeal at both
Court of Appeal and Supreme
Court. At the Supreme Court, the
Plaintiff failed to prosecute
and their appeal for further
enlistment was refused. They had
installed several people on the
land. But it is the prayers of
the Defendant/Applicant that the
Court orders them to go into
possession. The judgment of the
Court of Appeal was on 14/10/02
and Supreme Court on 30th
January 2007.
By Court: I have heard counsel
for the
defendants/Appellants/Appellant
herein, I have also seen the
various exhibits, attached to
this application supporting this
application. The court will
hereby order that the applicants
herein go into possession of the
land in dispute, having won
their case at the higher courts.
Let the Police Service at
Akuse assist in this exercise.
Sgd. Y. Owusu Kwarteng
Circuit Judge
It was upon the basis of
the above proceedings on the 12th
of July 2007 that the orders of
the court with even date
referred to supra were drawn up.
From these proceedings, and
orders respectively, the
following issues stand out
clear.
1. That it was on
ex-parte application
2. That the case was not
prosecuted at the Supreme Court,
since the appeal was struck out
and an application to re-list
was not successful.
3. In that regard, it is
only the Court of Appeal
judgment dated 14/10/02 and
tendered in the proceedings in
the High Court as Exhibit 7,
that can validly be referred to.
4. Some documents and
exhibits had been attached to
this ex-parte application at the
circuit court, Akropong Akwapim,
but the Circuit Judge did not
take the trouble to itemize the
said documents and or exhibits.
5. The result is that,
we have to turn to the exhibits
tendered and find out what
documents were infact exhibited
to this application.
6. The ex-parte
application for the Writ of
possession, the affidavit in
support and any attaching
exhibits have not been exhibited
and tendered anywhere in the
three volumes of this appeal.
7. The only document of
relevance is the judgment of the
Court of Appeal dated 14/10/02
which is on record as having
been tendered as Exhibit 7. It
is to this judgment that we now
have to turn to in order to
understand what actually
happened and the basis for the
grant of the Writ of Possession.
We also take note of the
following entries in the record
of appeal, pages 115 and 116,
volume 2 thereof as follows:
“There has also been writ of
possession and it was granted by
the Circuit Court, Eastern
Region at Akropong-Akwapim and
this writ of possession is in
respect of Akuse lands. I have
the document with me here and
with permission from the Court I
would like to tender same in
evidence, per Defendant”.
“A writ of possession from the
Circuit Court, Akropong-Akwapim
dated 12th July, 2007
being tendered accepted and
marked as Exhibit “10”.
The Defendant continued
his evidence thus:
“After the writ of possession
was granted to us we were
accompanied by the Akropong –
Police to demolish some of the
structures on the land. It is
not true that we have trespassed
on the land of the Plaintiff
measuring 16,325.27. We don’t
share boundary with the
plaintiffs on any portions of
our family land.”
It must also be noted
that, the proceedings pursuant
to the grant of the writ of
possession and the order that
was drawn up are those exhibits
referred to in the exhibits
register as exhibit No 10. This
therefore means that the gaps
referred to earlier as existing
towards an understanding of the
writ of possession still exist.
We have decided to focus
on the processes towards the
grant of this writ of possession
because of a phenomenon that has
crept into our legal/judicial
system, where courts that grant
writs of possession do not take
their time to peruse the
enabling judgments so as to
limit the operation of the writs
of possession to the extent of
the orders made by the courts
that delivered the said
judgments. A typical example is
what has happened in the instant
appeal. The exhibit 10 reads
“The court will hereby order
that the applicants herein go
into possession of the land in
dispute”.
What is the land in dispute?
Where is the land in dispute
situate?
What are the boundary features
and boundaries of the land in
dispute?
These are just some of the
questions that can legitimately
be asked and interrogated.
This is just one of the
laxities that are being
exhibited in the quest of
judgment creditors in executing
their judgments.
In the absence of the
Judge setting out the boundaries
of the land in dispute either by
clearly demarcating the
boundaries or by a survey plan
or map as we have in this
judgment, all that we have is
that, the applicants should go
into possession. What happens in
most cases is that the parties
who have applied for the writ of
possession are those who direct
the Bailiffs and the Police as
to the extent of the land in
dispute. This practice is
clearly unacceptable. We take
judicial notice of the fact that
many other writs of possession
had been poorly executed in the
past which has led to the
demolition of houses and
properties of people who were
not parties to the judgments in
respect of which the executions
had been levied. In this
instant, the Defendant conceded
that, pursuant to the said
orders for possession, several
houses had been demolished with
the assistance of the police.
It is quite
clear that, the Plaintiffs
herein and their predecessors in
title were not parties to the
phlethora of cases relied on by
the Defendant. We also take a
cue from the decision of the
Supreme Court in the case of In
Re Ashalley Botwe Lands; Adjetey
Agbosu and Others v Kotey and
Others [2003-200] SCGLR 420 at
holding 9, where the court held
as follows:-
“The court would, in the
interest of justice, disallow
the order of the trial Judge
made under Order 20 r 5 of the
High Court (Civil Procedure)
Rules, 1954 (LN140A) directing
the second defendant to take
steps to annul all documents
which derived their title from
the statutory declaration
registered by the Lands
Commission.”
The rationale
for the above decision was
further explained by Wood JSC
(as she then was) in the
following terms:-
“I see an order directed at the
beneficiaries who were never
parties to this action, persons
who have acquired lands from the
defendant, but who were,
however, not heard in these
proceedings, contrary to the
fundamental and plain rule of
natural justice, the audi
alteram partem rule. to order an
annulment or cancellation of
their documents without any
notice to them and without
having giving them a hearing ,
is in my view erroneous as the
intention clearly is to disposes
them of their properties.”
We find the
above very relevant to the
circumstances of this case. This
is because, in the instant case
the Plaintiffs lay claim to the
lands in dispute as part of
their ancestral lands.
In order for
the judgments which the
Defendant holds and has been
parading with, to be applicable
to the Plaintiffs, there must be
a nexus that the said lands in
respect of the previous suits,
i.e. SAS George v Hilodjie
supra, Dugbartey v Flisowski &
Ors supra and the others are
the same as the land in dispute
and that the Plaintiffs or their
predecessors were parties
therein.
It has been
already established that the
plaintiffs were not parties to
any of these suits, and by
parity of reasoning and based on
sound principles of law, the
said judgments cannot be held
applicable to them.
APPLICATION FOR THE WRIT OF
POSSESSION AND EXECUTION
From exhibit
7, the Court of Appeal judgment
of 14/10/02 in respect of which
the Co-Defendants applied for
and were granted the writ of
possession, Wood J.A. (as she
then was) whilst dismissing the
appeal by the Plaintiffs and
Co-Plaintiff, however granted
judgment to the Co-Defendant.
The Defendants
and Co-Defendant had no
counterclaim as that had been
withdrawn with the leave of the
court dated as far back as
11-12-92.
What this
meant was that, whilst the
Plaintiff and Co-Plaintiff lost
the action; the Defendant and
Co-Defendant won, but not having
counterclaimed, no writ of
possession could have been
executed in their favour.
It is
therefore clear that the grant
and execution of the writ of
possession by the Circuit
Court, Akropong-Akwapim in
respect of the case in exhibit 7
supra, dated 12th
July 2007 is null and void and
is accordingly set aside.
As a Practice Direction, this
Court directs that henceforth,
trial courts to whom writs of
possession are applied from must
study the judgments upon which
the executions are based and
clearly delineate the boundaries
of the land in respect of which
the writ of possession had been
applied for and granted.
Where however there is a survey
map or site plan and the
judgment has been based on such
a survey map or site plan, then
the writ of possession must be
referable to the said plans.
This practice direction it is
hoped will prevent the needless
and incompetent writs of
possession that have been
carried out in the past.
We observe that, since the
judgment which was executed by
leave of the Circuit Court,
Akropong-Akwapim, commenced from
the High Court, and terminated
with the execution of the Court
of Appeal judgment already
referred to supra, it is Order
43, rules 3 (1) and (2) and 13
that are applicable. Order 43 r.
3 (1) (a) and (2) of the High
Court (Civil Procedure) Rule,
2004 C. I. 47 provides as
follows:-
“Subject to these Rules, a
judgment or order for the
recovery of possession of
immovable property may be
enforced by one or more of the
following means:-
(a) a writ of possession
(b) in a case in which
rule 5 applies, an order of
committal or a writ of
sequestration”. – This is not
relevant and applicable.
2. “A writ of possession
to enforce a judgment or order
for the recovery of possession
of immovable property shall not
be issued without leave of the
court except where the judgment
or order was given or made in a
mortgage action to which order
56 applies.”
Order 43 r. 13 reads as
follows:-
“Forms
applicable to this Order
“Forms 18 to 18 K provided in
the schedule to these Rules
shall be used for the respective
purposes provided for in this
order.”
We observe from an
examination of the forms
pursuant to order 43 r. 13 that,
Forms 18C and 18D are relevant
for our purposes whilst form 18C
is titled “Request for writ of
Possession “ and contains an
indication for detailed
description of the property or
premises in respect of which the
Writ has been applied for. It is
not surprising that, this
request is therefore to be
signed by the Lawyer for the
party applying.
On the contrary, Form 18
D, is titled, Writ of
Possession, and is to be signed
by the Registrar of the issuing
court. This Form has the
following particulars to be
indicated as follows:-
a. Insert name of
party applying
b. Insert name of
party against whom writ is
issued
c. Describe the
land delivery of which has been
adjudged or ordered.
We observe that the
examination of the writ of
possession in the instant case
is contrary to the said
provisions and format. Indeed,
as provided under the Rules and
the relevant forms, if these are
complied with, the laxities
complained with in most
executions of writs of
possession will be absent.
For the above reasons, the
execution of the Writ of
Possession as ordered by the
Circuit Court, Akropong-Akwapim
is null and void and accordingly
set aside.
We will end
our epiloque with the caution to
all practitioners, magistrates
and judges in particular to
ensure that in granting writs of
possession in respect of
disputed title to land where one
party claims to have been
granted possession, the
judgments decreeing title and
possession are perused and the
exact areas granted are
specified in the order as
directed by Order 43 r. 13
(supra) by the use of the
relevant Forms 18C and 18D.
CONCLUSION
From the
proceedings which we have
perused in this case, what has
become very clear is that the
parties therein and their
predecessors in title have been
litigating over various parcels
of land for a considerable
length of time. All these
support the contention of the
importance of protecting
proprietary rights which is even
a constitutional right see
Article 18(2).
In this
respect, we find this quotation
attributed to a U.S. Statesman,
John Adams, on Thoughts on
Government published on page 284
“in the Quotable Founding
Fathers, edited by Buckner F.
Melton” appropriate, and it
states as follows:
“Each individual of the
society has a right to be
protected by it in the enjoyment
of his life, liberty and
property, according to standing
laws. He is obliged,
consequently, to contribute his
share to the expense of this
protection, and to give his
personal service, or an
equivalent, when necessary. But
no part of the property of any
individual can, with justice, be
taken from him, or applied to
public uses, without his own
consent, or that of the
representative body of the
people”. Emphasis.
The parties
herein are therefore justified
in taking all constitutional and
legal steps that are needed to
protect their properties. That
might well be fine, but this
cannot go on unabated. The
massive resources that are
deployed to pursue such disputes
can best be employed in other
productive areas of human
endeavor like education, health
care, shelter etc.
In this
respect, we recommend to all the
parties herein, to consider the
use of Alternative Dispute
Resolution (ADR) mechanisms in
future in case any dispute
erupts.
It is
imperative from the quotation
from Ollennu’s book that,
because the uses to which lands
are normally put are very
extensive, people tend to go all
out to protect it. It is in this
respect that acts of trespass,
which prevents legitimate owners
of lands from enjoyment of the
resources therein become really
burdensome. It is however our
hope that families and
communities who live together
whilst exercising their
legitimate rights to protect
their properties, will exercise
some decorum in the land use and
seek to preserve it for their
future generations.
The wanton
disposition of the lands by the
present owners must therefore be
regulated.
FINAL ORDERS
In the
premises, the appeal herein
lodged by the Defendant against
the court of Appeal judgment
dated 10th February,
2016 is accordingly dismissed as
woefully lacking in substance
and merit. On the contrary,
judgment is entered in favour of
the Plaintiffs in both suits as
per the Court of Appeal judgment
of even date. The Judgment of
the Court of Appeal in favour of
the Plaintiffs herein is thus
affirmed, and by necessary
implication, that of the High
court, dated 5th Day
OF February, 2015.
Appeal fails
and is thus dismissed.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A.A. BENIN
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALEX
AGYEI-AGYIRI FOR THE
DEFENDANT/APPELLANT/APPELLANT.
YAW OPPONG FOR
THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS. |
