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JUDGMENT
JONES DOTSE (J.S.C)
The facts in this appeal admit
of no controversy whatsoever.
The Plaintiff/Appellant and
Co-Plaintiff/Appellants
hereinafter referred to as the 1st
and 2nd Appellants
claimed in their amended writ of
summons in the High Court,
against the Defendant/Respondent
and later the
Co-Defendant/Respondent
hereinafter also referred to as
the 1st and 2nd
Respondents respectively, the
following reliefs:
-
“Declaration of title to all
that piece of land at North
Odorkor measuring on the
North West by 300 feet more
or less, South East by 70
feet more or less, North
East by 70 feet more or less
and South West by 70 feet
more or less.
-
Damages for trespass.
-
Recovery of Possession and
-
Injunction”.
The 1st Appellant’s
claim is that, he purchased this
piece of land for valuable
consideration from the 2nd
Appellant. The 1st
Appellant further contended that
his vendor, the 2nd
Appellant, was adjudged
victorious in Civil Appeal No.
25/80 entitled
ASHALEY OKOE
VRS
TOGBE HAHORMENE III & ANOR.
and declared to be the absolute
owner of all the land. The
Appellants also claimed that the
land in dispute before the High
Court forms part of the land in
respect of the Civil Appeal
referred to supra.
The Appellants, provoked by the
entry of the 1st
Respondent on to the land,
initiated the action against him
in the High Court claiming the
reliefs referred to supra. The 1st
Respondent, later joined by the
2nd Respondent upon
an order of the High Court, also
filed a counterclaim and claimed
to have purchased the land from
its original owners the Asere
stool.
After trial, the High Court
Accra, presided over by
Lutterodt J, as she then was,
dismissed the Appellants’ claims
before the court and gave
judgment to the Respondents on
their counterclaim.
Out of abundance of caution,
this is what Lutterodt J, said
in her judgment delivered on
31-7-91:
“Ordinarily the dismissal of the
Plaintiffs’ claim should have
ended the matter and left the
defendants in possession
possibly until another
challenger emerges. But, because
of their counterclaim I would
proceed to determine whether or
not they are entitled to the
reliefs sought. The co-defendant
acquired title from the
defendant.
I think they each succeeded in
establishing a prima facie case
of title to the land in dispute.
We do not only have their
respective deeds but the
evidence of their grantor
showing the land was validly
granted by him with the consent
and concurrence of the
accredited elders of the Asere
Stool of Nikoi Olai, those whose
signatures are needed”.
With the above words, the High
Court declared title in the land
to the Respondents as well as
perpetually restraining the
Appellants from interfering with
the Respondents’ title to the
land.
Aggrieved by the said decision,
the Appellants appealed to the
Court of Appeal, which by a
split decision delivered on 20th
February 1997 dismissed the
appeal with Lamptey J.A
dissenting, whilst Benin and
Essilfie-Bondzie JJA, upheld the
High Court decision.
Justice Essifie-Bondzie
dismissed the appeal and upheld
the judgment granted the
Respondents on their
counterclaim.
Justice Benin on the other hand
dismissed the appeal but upheld
the judgment in respect of the
counterclaim to the 1st
Respondent only, and dismissed
the 2nd Respondent’s
counterclaim.
Justice Lamptey dismissed both
the Appellants claims as well as
the Respondents claims and
ordered a re-trial.
It is against this judgment of
the Court of Appeal that the
Appellants have further lodged
the instant appeal to this court
with the following as the
grounds of appeal.
GROUNDS OF APPEAL
-
The judgment of His Lordship
Mr Justice Benin in favour
of defendant and that of His
Lordship Mr. Justice
Essilfie-Bondzie in favour
of the defendant and
co-defendant were against
the weight of evidence.
-
In view of the fact that the
trial in the High Court was
unsatisfactory His Lordship
Mr Justice Benin and His
Lordship Mr. Justice
Essilfie-Bondzie erred in
law in not ordering a
retrial of the whole suit
before differently
constituted HIGH COURT.
-
Both the defendant and the
Co-defendant’s documents
were spurious; they also
failed to prove their title
as set out in their
counter-claim. His Lordship
Mr. Justice Benin and His
Lordship Mr. Justice
Essilfie-Bondzie erred in
law in not dismissing the
claim of both defendant and
co-defendant and ordering a
retrial of the suit.
-
Further grounds of appeal to
be filed when record of
proceedings is ready.
No additional grounds of appeal
have been filed in this appeal.
When the time for reception of
arguments was due, Learned
Counsel for the Appellant, in
his written statement of case
abandoned grounds 1 and 3 and
argued only ground 2 which deals
with the issue of ordering a
retrial before the High Court,
differently constituted.
In his written submission,
Learned Counsel for the
Appellants dwelt on certain
observations by Lamptey J.A in
his dissenting judgment. These
are:
-
That it was wrong for the
learned trial judge to have
entered judgment for the
defendants on their
counterclaim when there was
infact only one defendant
and a co-defendant.
-
That there are obvious and
apparent conflicts in the
pleadings and oral testimony
of the defendants on the
issue of the description of
the land in the
counterclaim.
-
That in a situation such as
existed in the instant
appeal, fresh evidence ought
to be have been led by
ordering a survey plan to
be drawn up to identify the
suit land with certainty.
Based on the above submissions,
learned counsel for the
Appellants stated that the trial
in the High Court was
unsatisfactory and invited this
court to order a retrial for all
the issues in controversy to be
resolved once and for all.
In his very brief but incisive
written submissions, learned
counsel for the Respondents
stated as follows:
1.
That since all three Justices of
Appeal, like their counterpart
in the High Court found no merit
whatsoever in the claims of the
Appellants and dismissed same,
no useful purpose would be
served by a retrial. Learned
counsel further stated that,
Justices Benin and
Essilfie-Bondzie found no cause
to order a retrial because they
found absolutely no merit in the
Appellants case.
2.
That the title of the 1st
Respondent, having been
positively proved and validly
declared by both the High Court
and the Court of Appeal as being
meritorious, the problem if any
that exists between any
uncertainty in the description
of the 1st
Respondents land as per the
counterclaim can easily be
sorted out between the 1st
and 2nd Respondents.
This is because, the 2nd
Respondent derived title from
the 1st Respondent
and both are blood relations.
3.
That under the circumstances it
will be extremely burdensome on
the parties to order a retrial.
We have carefully evaluated and
assessed the submissions of
learned counsel for the
Appellant and Respondents
vis-à-vis the entire appeal
record as well as the case law
on the subject matter.
We wish to observe that, the
burden of proof is always put on
the Plaintiff to satisfy the
court on a balance of
probabilities in cases like
this.
Thus, if in a situation, the
defendant has not
counterclaimed, and the
Plaintiff has not been able to
make out a sufficient case
against the defendant, then his
claims will be dismissed. See
case of Odametey v. Clocuh
[1989 -90] 1GLR, 15 holding 1.
This is perhaps why the learned
trial judge stated on page 71
lines 1-3 of the appeal record
that:
“Ordinarily the dismissal of the
Plaintiff’s claim should have
ended the matter and left the
defendants in possession
possibly until another
challenger emerges. But because
of their counterclaim I would
proceed to determine whether or
not they are entitled to the
reliefs sought”.
Thus, whenever a defendant also
files a counterclaim, then the
same standard or burden of proof
will be used in evaluating and
assessing the case of the
defendant just as it was used to
evaluate and assess the case of
the Plaintiff against the
defendant.
In the instant appeal, the
defendants counterclaimed and
this meant that they also
assumed the position of
Plaintiff in respect of their
counterclaim.
Having thus dismissed the
claims of the Appellants, the
learned trial judge in our view
proceeded to evaluate the case
of the Respondents in respect
of their counterclaim using the
time tested principles
enunciated long ago in
Majolagbe vs. Larbi [1959] 1
GLR 190, at 191.
But before we evaluate the
Respondent’s case, let us apply
to the Appellant’s case the same
litmus test that is required in
law. In the statement of claim,
the 1st Appellant
contended that he purchased the
plot of land in dispute for
valuable consideration from the
2nd Appellant in or about 1980.
On page 37 of the appeal record
the 1st Appellant,
represented by Joseph Awuley
Ashong, testified that the
company purchased the land in
dispute from the 2nd
Appellant. He then proceeded to
tender exhibits A & B which are
the site plan and the receipts
covering the transaction.
During cross-examination of the
Plaintiff therein, herein 1st
Appellant the representative
stated on page 38 lines 30-36 as
follows:-
Q. “Is it true the land was
granted you by co-Plaintiff in
1980?
A. Yes, that is true.
Q. Did he give you a
conveyance in 1980?
A. I was given a site plan.
Q. You know why he did not
give you a document of transfer
in 1980
A. I do not know that one”.
However, when the 2nd
Appellant testified on page 44
of the appeal record, he
confirmed that he sold the
disputed land to the 1st
Appellant company and also
established the fact that he
successfully litigated with one
Ashalley Okoe up to the Supreme
Court and tendered the said
judgment as Exhibit C. This
confirmed the fact that portions
of the land which he sold to the
1st Appellant company
formed part of his land covered
in Exhibit C.
For some strange and
inexplicable reasons, the 2nd
Appellant herein, therein
co-Plaintiff, denied having
ever passed on to the 1st
Appellant Exhibit B, which is
the site plan contrary to
earlier assertions by the 1st
Appellant.
Out of abundance of caution,
these are the question and
answer session on page 45 lines
24 – 30 of the appeal record
when the 2nd
Appellant testified under
cross-examination.
Q.
“You had the land surveyed.
A Yes
Q.
You have given a document to the
Plaintiff.
-
I have given him a
site plan.
Q.
Examine Exhibit “B” is that the
site plan you gave.
A.
Not at all, what I gave him bore
my name”.
We have observed that, in their
quest to prove their title, the
1st Appellant’s based
their proof of title principally
on Exhibits A and B. Since this
is a land transaction, Exhibit B
is of paramount importance
because it is the site plan of
the disputed land whilst Exhibit
A with all its legal
imperfections is the land
purchase receipt.
What must be noted is that,
Exhibit A does not contain the
description of the land that had
been sold to the 1st
Appellant, reference page 73 of
the appeal record.
The only exhibit that sought to
create any certainty and linkage
about the identity of the
disputed land bought by the 1st
Appellant from the 2nd Appellant
is exhibit B, the site plan
tendered by 1st Appellant as the
document given him by the 2nd
Appellant upon the purchase.
However, this is the site plan,
exhibit B, which was given to
the 2nd Appellant to examine and
after examination he declared
conclusively that, it is not the
document that he gave to the 1st
Appellant.
By that singular statement, the
2nd Appellant has
dealt a devastating blow to the
case of the 1st
Appellant which was already
weak. The result was that the
case collapsed and cannot by any
stretch of human ingenuity be
redeemable.
This being the case, the
conclusion reached by the
learned trial judge and the
majority of the Court of Appeal
decision in dismissing the
Appellants claims is in
complete accord not only with
the facts of the case as they
appear on the record of appeal,
but also in law.
This is because, our courts have
consistently refused to declare
title in any suit for land,
when the land cannot or has not
been clearly identified.
See cases such as
1.
BEDU
VS
AGBI, [1972] 2 GLR 238
2.
ANANE & ORS
VS
DONKOR & ORS [1965] GLR 188
where Ollennu JSC put the matter
succinctly as follows:-
“where a court grants
declaration of title to land or
makes an order for injunction in
respect of land, the land
subject matter of that
declaration should be clearly
identified so that an order for
possession can be executed
without difficulty”.
The 1st Appellant, in
our considered opinion failed
to lead that kind of evidence to
satisfy the trial court that on
their own strength and not on
the weaknesses in the
opponents case it has been able
to make out a case sufficient
to convince the court on a
balance of probabilities.
Under the circumstances, this
court is of the opinion that no
useful purpose would be served
in ordering a retrial of the
Appellants’ case which has been
destroyed from the foundation
stage.
In our estimation, whenever an
issue arises as to whether an
appellate court should consider
the issue of ordering a retrial
in a civil case, the primary
consideration is whether any
useful purpose would be served
by any such directive.
Learned counsel for the
Appellant submits that a survey
plan should have been ordered to
delineate the exact boundaries
of the disputed land. That might
very well be the issue. However,
what document or documents would
be used for such an exercise on
behalf of the Appellant?
This is because the 2nd
Appellant from whom the 1st
Appellant derived title has
completely denied authorship and
knowledge of Exhibit B.
In the absence of any
descriptions on Exhibit A, the
purchase receipt, it will be a
wild goose chase if a retrial
would be ordered. No useful
purpose would be served, and
since the courts exist to make
reasonable, useful and purposive
decisions that will accord with
common sense and sound
principles of law, it stands to
reason that the invitation to
this court for a retrial should
be rejected.
In the same vein, when we
consider the pleadings, the
evidence that has been led and
the documents of title that have
been tendered by the
Respondents, we get the picture
that they have been able to
clearly identify the land that
they claim as per their
counterclaim.
Out of abundance of caution, we
refer to the following documents
that had been tendered by the
Respondents during the trial at
the High Court.
1. Exhibit 1
- This is an Indenture
that had been made
on 2nd February, 1979
between Nii Nikoi Olai Amontia
IV the then occupant of the
Asere Stool and the 1st
Respondent, herein.
2. Exhibit 2
- This is also an
Indenture that had been
made on 2nd August,
1979 between Nii Nikoi Olai
Amontia IV and the 1st
Respondent herein.
3. Exhibit 3
- This is a Search from
the Lands
Commission dated 1st
February, 1985 indicating that
land covered by a site plan
exhibited therein is owned by
the Asere Stool whose occupant
at the time was Nii Nikoi Olai
Amontia IV.
4. Exhibit 4
- This is also another
Search result
indicating that a search had
been conducted from the Lands
Registry dated 1st
November, 1984 confirming the
title of the Respondents’
vendors.
5. Exhibit 5
- This is an Indenture
dated 14th November,
1979 and made between the 1st
Respondent and the 2nd
Respondent who is reputed to be
a niece to the 1st
Respondent.
As we have already stated, the 1st
Respondent tendered exhibits 1
and 2 to support his oral
testimony given on page 53,
lines 32-37 where he testified
as follows:-
“I purchased the land in
question from NiKoi Olai Nii
Amontia IV. He is a divisional
Chief of the Asere Stool. This
was in 1978/79. The land is
situate at North Odorkor. I do
not know that area is also
called Alealu. It measures 70
feet by 200 ft for the two
plots”.
The 2nd Respondent
confirmed in all material
particulars the evidence of
the 1st Respondent
when she testified on page 57
lines 40 – 46.
Finally we take note of the
confirmatory evidence of D.W.1
NiKoi Olai Amantia IV on page
60, lines 27 – 33 of the
appeal record, when he testified
as follows:-
“I granted the land to the
Defendant in my capacity as
Asere Manche. I have seen
Exhibits “1 and 2”. They bear
my signature in my capacity as
Asere Manche the grantor. I made
the grant in 1978. He paid for
the documentation after he has
paid the necessary customary
drinks.”
Having considered all the above
pieces of evidence and Exhibit
1, 2 and 5 we come to the
irreversible conclusion that the
Respondents have been able to
prove their counterclaim on a
balance of probabilities.
For example, when one considers
the extent of Exhibits 1 and 2,
which are Instruments executed
between Nii NiKoi Olai Amontia
IV and the 1st
Respondent, on the one hand, and
Exhibit 5, the Instrument
executed between he 1st
Respondent and his niece the 2nd
Respondent, it is clear that 1st
Respondent conveyed to 2nd
Respondent portions of his land
already conveyed to him by the
Asere Stool per NiKoi Olai
Amontia.
It is therefore our considered
opinion that the learned trial
judge and the majority decision
of the Court of Appeal were
right when they decreed title to
the Respondents as regards their
counterclaim.
As a matter of fact, the
contention that a party must
prove the identity of the Suit
land with certainty to enable a
court decree title does not mean
mathematical identity or
certainty.
It is enough, such as in the
instant appeal when the
Respondents have been able to
establish the identity of land
purchased from the Asere Stool
by the 1st Respondent
and that conveyed to the 2nd
Respondent by the 1st
Respondent. In a situation like
this, whenever there is a
boundary dispute between he 1st
Respondent and the 2nd
Respondent, or any third party,
they can do so by reference to
Exhibit 1, 2, and 5 which are
legally recognizable Instruments
that touch and affect land.
Before we conclude this
judgment, there is some other
legal issue that has arisen and
ought to be raised and dealt
with by this court.
This is the principle of law
that findings of fact made by a
trial judge who heard and
observed witnesses when they
testified before him or her are
generally not departed from by
an appellate court except when
those findings are clearly
unsupportable, having regard to
the evidence on record, as has
been stated by the Supreme Court
in the case of
ACHORO & ANOR
VRS
AKANFELA ANOR. [1996-97] SCGLR
209, holding 2 where the
principle was re-emphasized as
follows:-
“In an appeal against findings
of facts to a second appellate
court like (the Supreme Court)
where the lower appellate court
had concurred in the findings of
the trial court, especially in a
dispute, the subject matter of
which was peculiarly within the
bosom of the two lower courts or
tribunal, this court would not
interfere with the concurrent
findings of the two lower
courts unless it was
established with absolute
clearness that some blunder or
error resulting in a
miscarriage of justice was
apparnt in the way in which
the lower tribunals had dealt
with the facts. It must be
established eg that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied; or , that the
findings was so based on
erroneous proposition of the law
that if that proposition be
corrected, the finding would
disappear. It must be
demonstrated that the judgments
of the Courts below were
clearly wrong”.
The following cases also depict
the application of the above
principle.
1. THOMAS
VS
THOMAS, [1947] AER 582
2. AKUFO ADDO
VS
CATHLINE, [1992] 1 GLR 377
per Osei Nwere J.S.C
3. ASANTE
VS
CFAO [1961] GLR 125 P.C
holding 3 thereof
4.
NTIRI & ANOR
VRS
ESSIEN & ANOR [2001-2002] SCGLR
451
5.
POWELL
VS
STREATHAM MANOR NURSING HOME
[1935]
A.C. 243 at 250 H.L
Basing ourselves on the above
decided local and English
authorities, we are of the firm
opinion that an appellate
court should be slow in
dismissing findings and
conclusions reached by a trial
court based on the observations
made during the trial of the
case as a result of the
advantages enjoyed in seeing,
hearing and observing the
demeanour of the witnesses by
the trial court. Any attempt
by an appellate court such as
ours to come to different
conclusions on the facts and not
on the law must be based on
strong evidence which is
apparent from the appeal record.
Just as was stated in the
ACHORO vs AKANFELA case already
referred to supra.
In the instant appeal, we find
that there is absolutely no
basis whatsoever to depart from
the concurrent findings of fact
and conclusions reached by the
learned trial judge and the
lower appellate court.
We therefore find the
observations made by Lamptey
J.A. as he then was about the
reference to the “Appellants”
by the learned trial judge as
plaintiffs instead of referring
to them as plaintiff and Co-
Plaintiff as too petty and
devoid of any merit deserving
attention from this court.
The result is that, this court
dismisses the appeal lodged
against the Court of Appeal
decision of 20th
February 1997, for the following
reasons.
1.
The Appellants have woefully
failed to prove their case to
the satisfaction of the Court
and their claims stand dismissed
by this court.
2.
The Respondents have been able
on a balance of probabilities to
establish and prove their
counterclaim to the satisfaction
of this court. The court
accordingly affirms title to the
Respondents.
3.
Since no useful purpose will be
served in ordering a retrial
(because the Appellants have not
been able to establish the
certainty about their land) the
invitation extended to this
court to order a retrial is
hereby rejected.
The appeal is accordingly
dismissed.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
I agree
S. A. B. AKUFFO (MS)
( JUSTICE OF THE SUPREME COURT)
I agree
DR. S. K. DATE-BAH
( JUSTICE OF THE SUPREME COURT)
I agree
S. O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I
agree
R.C. OWUSU (MS)
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
A. G. BUOADU FOR THE 1ST
APPELLANT
MOHAMMED SAHNOON FOR THE
RESPONDENT |
