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JUDGMENT
TWUMASI, JA.
This is an appeal from
the judgment of the circuit court, Odumase Krobo
delivered on the 19th May 1999 in a landsuit. The
plaintiff who initiated the litigation emerged
victorious with an award to him of all the reliefs he
sought against the defendant and the co-defendant. The
latter two have therefore mounted this appeal but I
prefer to adopt for the purposes of this appeal the
positions of the parties at the court below and
accordingly call them Plaintiff, defendant and
co-defendant wherever applicable. As I have already
hinted above the parties contested title to a certain
piece or parcel of land. The plaintiff based his title
to the said land on a grant to him of the land by a
family called the "Manya Akromuase." For his part, the
defendant relied on a grant to him by a family known or
called "Dokutse Peteye Abla." In conformity with the
practice and procedure in landsuits of this nature, the
co-defendant contested on behalf of his family upon
being joined as party to the suit to fight on the side
of the defendant to clinch common victory. In the event
what commenced as a contest between the plaintiff and
the defendant at the outset escalated into a full-blown
battle between the two families as to which of them
originally acquired the land by way of settlement. This
type of land litigation, as it is known by all lawyers
and judges, entails traditional histories or evidence of
varying degrees of complexity, uncertainty and
hyperboles sometimes of romantic flavour. In resolving
which of two competing traditional histories is the more
probable the practice of our profession has been to
approach the dispute by applying to the competing
traditional histories a time-honoured and time-tested
principle which can be found in leading cases such as
Adjeibi-Kojo v. Bonsie and Another (1957) 3 WALR 257;
Ntsin vii v. Doughan (1960) GLR 26; Beng v. Poku (1965)
GLR 167 SC; Darfour Jnr. v. Boateng (1976) 2 GLR 191 CA,
and the very recent cases of In re Kodie Stool; Adowaa
v. Osei (1998-99) SC GLR 23, In re Taayen & Asaago
Stools; Kumanin II (substituted by) Oppon v. Anin
(1998-99) SC GLR 1999 where the Supreme Court applied
the principle in Adjeibi-Kojo v. Bonsie (Supra). In
stating the principle no one should pretend to take any
credit by by-passing its progenitor, Lord Denning in the
leading case Adjeibi-Kojo v. Bonsie (supra) where Lord
Denning said at page 260 of the report:
"The dispute was all as
to the traditional history which had been handed down by
word of mouth from their forefathers. In this regard it
must be recognised that in the course of transmission
from generation to generation, mistakes may occur
without any dishonest motives whatsoever. Witnesses of
the utmost veracity may speak honestly but erroneously
as to what took place a hundred years ago. Where there
is a conflict of traditional history one side or the
other must be mistaken, yet both may be honest in their
beliefs. In such a case demeanour is little guide to
the truth. The best way is to test the traditional
history reference to the facts in recent years as
established by evidence and by seeing which of the
competing histories is the most probable."
A striking illustration
of the application of this principle could be found in
the recent case of Sophia Lamptey v Adumuah & Another,
Court of Appeal, unreported, dated 15th March 2001 where
this court in resolving the competing traditional
histories as to the ownership of a piece of land,
preferred the story of the appellant, basing its
decision on the accomplished fact that the only fetish
shrine which had for several years been on the land
belonged to the appellant's family, while the respondent
had no rival account as the existence of the shrine on
the disputed land. The court then accepted the
appellant's claim that the respondent's family were on
the land by permission of the appellant's predecessors.
Relating this approach
to the instant case, there are some vital recent facts
to consider. First in line was a document tendered by
the co-defendant. It was the well-known Jackson Report.
In 1954, the then Governor-In-council, appointed a
commission headed by Jackson to enquire into the
boundaries of the lands vested in the Osudoku stool with
any state or communities having boundaries contiguous
with the Osudoku stool, other than the boundary already
determined pursuant to the Stool Lands Boundaries
Settlement (Osudoku/Battor) Order 1953 and by a later
order dated 8 April 1954, to enquire into and determine
the Northern and Eastern boundaries of Ningo together
with the boundaries of any state or community that have
boundaries contiguous therewith. The following is what
Jackson said about the ancestor of the co-defendant -
Dokutse-Peteye:-
"On arrival
Dokutse-Peteye and his followers broke off from Mate
Aka's party and settled at America. They were the first
settlers on what are now known as the Akuse Lands."
The following averments
in the co-defendants statement of defence are
significant.
"(4) In answer to
paragraphs 3 and 4 of the statement of claim the
co-defendant says that his family, the Dokutse
Peteye-Atta Abla family of Akuse and Nuaso are the
accredited owners of all that piece or parcel of land
stretching from the Akuse township (inclusive) to the
Okwe stream. The only family dwelling within the area
with the acknowledgment of co-defendants predecessors
are the Narh Titriku family, of Natriku.
(5) In further response
to the said paragraphs 3 and 4 of the statement of claim
the Co-defendant says that neither Chief Sasraku III of
Manya Kpongunor nor any entity called "Akromuase People"
own or possess land in the area. Plaintiff shall be put
to strict proof of the averments pertaining to the said
persons ownership.
The plaintiff in his
pleading describes his land as follows:-
"It contains an
approximate area of 34.65 acres and bounded on the South
East by Akromuase people's property measuring on that
side 1,000 feet more or less, on the North by
Akosombo-Afienya Motor Road measuring on that side 1,000
feet more or less, on the South West by Somanya-Akuse
Motor Road measuring on that side 1,000 feet more or
less and on the North East by Akromuase people's land
measuring on that side 1,500 feet more or less which
piece of land is more particularly delineated on the
plan attached and therein shown edged Pink which shows
the relevant measurements."
By the above
description and the evidence tendered, plaintiff
contended that the land in dispute formed part of land
owned by the Akromuase Division of the Manya krobo
Traditional and that the part claimed by him was granted
to him by Nene Sabraku III, Chief of that division.
Further evidence led on behalf of the plaintiff was that
the land was situate at a place commonly called and
known as "Okwenya". The traditional history offered by
the Akromuase family was that their forefathers settled
on the Krobo Mountain and acquired the land, the right
to which has devolved upon them and the family had kept
possession. The co-defendant contradicted this
traditional history by an account to the effect that his
forefathers first settled on the Krobo mountain and that
the Okwenya land formed part of the lands known as "The
Akuse Lands". The learned trial Circuit Court Judge
rejected the traditional history of the co-defendant
basing himself on a historical account given by two
eminent authors namely NAA Azu in his book entitled
"Adamgbe History" and the other one MJ Field. The
learned judge stated at page 171 of the appeal record
thus:
"In the said Jackson
report tendered as Exhibit 8, Commissioner Jackson
accepted the history of the Krobos as recorded by NAA
Azu and MJ Field"
These two authors
stated that at the time Manya people went to live on the
Krobo mountain they were ruled by fetish priests. This
is the judge's finding. The judge went on further at the
same page to say:-
"In fact it was
Akromuase and Madzu the fetish priests of Naousi and
Kroweku who led the Manya people to the Krobo mountain."
According to NAA Azu at
the time the Krobos went to the mountain, it was
uninhabited. The trial judge therefore concluded,
rightly in my view, that the history told by the
co-defendant was more probable. The co-defendant had
claimed that his great ancestor was the first settler on
the Krobo mountain and in fact it was he who gave land
to the Manya and Yilo Krobos when the latter met him on
the Krobo mountain. Obviously because the textbook
writers version adversely affected the co-defendant's
traditional history his counsel contended as one of the
grounds of appeal that the learned trial judge erred in
basing his finding on extraneous matters, an apparent
reference to the account from the history books. I
consider it important to stress that it does not stand
to reason for a party who tenders a document or calls
oral evidence on a matter in issue to urge the court to
accept that part of the document or oral evidence which
favours part or the whole of his case but to reject
another part of the same document or oral evidence which
supports the case of his opponent, because equity frows
upon unfair treatment in the conduct of human affairs.
For this reason, the submission that the judge erred was
untenable. Within the scope of the principle in
Adjeibi-Kojo v. Bonesie (supra) the Jackson report was a
fact established by the evidence. Quite apart from the
Jackson report the trial judge was right in using the
history book account as a matter for judicial notice
pursuant to paragraph 9 of the Evidence Decree 1975
(NRCD 323) and page 57 of the Commentary on the
Evidence Decree 1975 and, more importantly, to Order 37
rule 56 of the High court (Civil Procedure) Rules 1954
LN 140A which states as follows:-
"Order 37 rule 56: On
matters of public history, literature, science, or art,
the court may refer, it shall think fit, for the
purposes of evidence, to such published books, maps, or
charts as the court shall consider to be authority on
the subject to which they relate".
This procedure takes
its sustenance from the rule of evidence that a court
may and can take judicial notice of notorious facts-
here public history.
Now the identity of the
land subject-matter of the litigation takes its turn for
consideration. There is no gainsaying the fact that
proof of the identity of a land to which a plaintiff or
defendant-counterclaimant claims a declaration of title,
when in dispute on the evidence, must be positively
discharged by the claimant if he should succeed in his
action or counterclaim as the case may be: see Buruwa v.
Ogwahola (1938) 4 WACA 159; Sasraku v. Ahiaku (1942) 8
WACA 76 at 82 and Sowa v. Amahire (133) II NLR 82 (FC)
Page 85, all cited by counsel for the respondent and all
apposite to the law on the subject. The rational behind
the insistence on strict proof of the identity of land
was stated by the Supreme Court of the First Republic in
the case of Anane v. Donkor (1965) GLR 188 at 192 where
the court speaking through Ollenu JSC (as he then was)
said:-
"Where a court grants
declaration of title to land or makes an order for
injunction in respect of land, the land the subject
matter of that declaration should be clearly identified
so that an order for possession can be executed without
difficulty, and also if the order for injunction is
violated the person in contempt can be published. If the
boundaries of such land are not established, a judgment
or order of the court will be in vain. Again a judgment
for declaration of title to the land should operate as
res judicata to prevent the parties from relitigating
the same issues in respect of the identical subject
matter, but it cannot so operate unless the subject
matter thereof is clearly identified. For these reasons
a claim for declaration of title or an order for
injunction must always fail if the plaintiff fails to
establish positively the identity of the land to which
he claims title, subject matter of the suit".
In the instant case,
the plaintiff who claims that his land is situate in a
place called Okwenya within the Manya Krobo Traditional
Area has clearly identified it on a Deed of Conveyance
duly registered at the lands Registry at Koforidua. He
contends that the Okwenya land does not form part of
Akuse lands as contended by the co-defendant who says
that Akuse land extend to Okwenya. The Jackson report on
which the co-defendant relied did not state the extent
of 'Akuse Land'. In such circumstances a legal issue
arises as to the party who carries the burden of
persuasion. Clearly, it is the co-defendant who asserts
the affirmative of the issue: see Amah v. Kaifio (1959)
GLR 23 and Edah v. Hussey (1989-90) 1 GLR 359 CA. In
Amah v. Kaifio Ollenu J (as he then was) stated at page
25 of the report that:
"The principle of law
is that the burden of proof rests upon the party who
would fail if no evidence at all, or no more evidence,
as the case may be, were given on either side - ie it
rests before evidence is gone into upon the party
asserting the affirmative of the issue; and it rests
after evidence is gone into upon the the party against
whom the tribunal, at the time the question arises,
would give judgement if no further evidence were adduced
"(Phipson on Evidence 7th edition at page 31; and see
Abrath v. North Eastern Railway Company (1896) 1 Q6D 189
and 196)".
Applying the foregoing
principle of law which we fully endorse, it is
significant to note that after evidence had been gone
into, it was clear that the plaintiff had emerged the
victor on the traditional evidence and was so adjudged,
rightly in our view by the trial judge. Figuratively
speaking, the plaintiff at that juncture had secured a
comfortable place on Okwenya land on Manya Krobo
Traditional Area leaving the co-defendant on the Akuse
lands to prove that Akuse lands stretched or engulfed
Okwenya. This was the much needed further evidence which
the co-defendant ought to have offered to avert judgment
against him handed down by the tribunal which in fact
occurred. This appraisal of the issues that arose from
the evidence coincided fortuitously with a vital part of
the submissions made by counsel for the first defendant.
For at page 7 of Counsel's Statement of case he states
as follows:—
"28. There is a
serious conflict on the question of whether the "res
litigiosa" which is at Okwenya is part and parcel of
Akuse lands. This conflict could have been easily
resolved if the trial judge had ordered for a plan of
the land in dispute and Akuse lands to be drawn. In the
case of Anane & others v. Donkor and Kwarteng & Another
v. Donkor and Another (Consolidated) (1965) GLR 188 the
Supreme Court held that a claim for declaration of title
to land or for an order for injunction must always fail,
if the plaintiff fails to establish positively the
identity of the land claimed".
In my view, this
concession on the part of Counsel for the first
defendant typifies his innate commitment to the ethics
of the legal profession which insists upon honesty,
sincerity and truth as the only guarantees to true
justice for litigants in our courts. To demonstrate my
sympathy with counsel as he agonises over the failure of
the trial judge to order a survey, I would first refer
to the case of Sowa v. Amachinea (supra) courtesy
counsel for the plaintiff where the court went to the
extreme to say that:
"It is impossible to
make a declaration of title without a plan to which such
declaration can be tied."
I would say that a
plan, although very helpful, has never been the only
mode of proving the identity of land although there is
no gainsaying the fact that it is an improvement upon a
visit to the locus in quo which confirms the rule
'seeing is believing'. Be that as it may, it seems to me
clear that in the instant case it is too late in the day
for the defendants to pass the buck to the trial judge
and, as it were, to make him a scapegoat for the initial
omission, of the defendants. The defendant filed a
counterclaim but he subsequently discontinued. The
co-defendant did not file any counterclaim. If the idea
of a counterclaim had dawned on the co-defendant he
would have realised that his burden of proof was going
to be the same as that of the plaintiff on the totality
of the evidence. The co-defendant would have felt
compelled to prove that "Akuse lands" included Okwenya.
Instead of brazing himself on equal terms with the
plaintiff, the co-defendant chose to hide behind the
facade of an old rule enunciated in the case of
Kodilinye v Odu (19) 2 WACA page 337 and, as it were,
adopted a wait and see stance to see the plaintiff fail
so that he would get judgment on the principle in
Kodilinye case that the plaintiff must succeed on the
strength of his own case and not on any weakness of the
defence case. This is borne out by the passage at page 7
of the statement of case filed by counsel for the first
appellant where he reproduces in extenso the dictum of
the diction of Webber CJ in Kodilinye v Odu (supra)
approved by the Supreme Court of the First Republic in
Serwah v Kesse (1960) GLR 227 at 228 as follows:-
"The onus lies on the
plaintiff to satisfy the court that he is entitled on
the evidence brought by him to a declaration of title.
The plaintiff in this case must rely on the strength of
his own case and not on the weakness of the defendant's
case. If this onus is not discharged, the weakness of
the defendant's case will not help him and the proper
judgment is for the defendant. Such a judgment decrees
no title to the defendant, he not having sought the
declaration. So if the whole evidence in the case be
conflicting and somewhat confused, and there is little
to choose between the rival traditional stories the
plaintiff fails in the decree he seeks, and judgment
must be entered for the defendant. Per Webber, CJ in
Kodilinye v Odu (2 W.A.C.A. at page 337)."
Like other fundamental
principles of law, the rule in Kodilinye v Odu (supra)
has had its fair share of transformation and
vicissitudes, however adamant or conservative judges
have stood against its change. Kodilinye dominated the
legal horizon for several decades until the enactment of
the Evidence Decree 1975 (NRCD 323), section 11 (1) to
(4) thereof. Despite the enactment of the decree which
abolished the rule in Kodilinye that a plaintiff in an
action for a declaration of title must prove his case
with the degree of proof required in criminal cases in
favour of proof on the balance of probabilities,
conservative judges His Lordship Mr. Justice Francoise
JSC (as he then was) being the most vocal, still stuck
to the old rule. Thus, despite the firm decision of the
Supreme Court in the case of Odametey v Clocuh and
Another (1989-90) 1 GLR 14 which disapproved of
Kodilinye on the 8th March 1989 Francoise JSC (as he
then was presiding with Ampiah and Lamptey JJA) in a
subsequent case before the Court of Appeal, Banga and
Others v Djanie and Another (1989-90) 1 GLR 510 at 519
stated as follows:
"The principle (that
the plaintiff should succeed on the strength of his
case) has for several decades been the fulcrum for
determination of ownership in land matters in our
courts. In recent times a dangerous trend has been
erupting equating this burden with the normal burden in
civil cases in measuring success by a balance of
probabilities. In my view the requirement of a higher
burden of proof in land matters cannot be whittled away
by glosses on the principle. Suffice it to emphasise
that a high measure of proof is necessary to sustain
victory in a plaintiff seeking a declaration of the
title to land."
Needless to emphasise
with the greatest respect to the eminent judges the
decision in Banga v. Jainie (supra) must be jettisoned
as having been given per incuriam by the Court of Appeal
in so far as it proceeded in flagrant defiance of an
earlier decision of the Supreme Court in Odametey v
Clocuh (supra). It is gratifying, however, that there
can no longer be any lingering doubt about the demise of
Kodilinye as the recent supreme Court case of Adwabeng
v. Domfeh (1996-97) SC GLR 660 nailed its coffin by a
unanimous decision thus laying finally to rest the
controversy. The last straw that broke the camel's back
in that case was holding (3) which is as follows:-
"(3) Sections 11 (4)
and 12 of the Evidence Decree 1975 (NRCD 323) (which
came into force on 1 October 1979) have clearly provided
that the standard of proof in all civil actions was
proof by preponderance of probabilities - no exceptions
were made. In the light of the provisions of the
Evidence Decree, cases which had held that proof in
titles to land required proof beyond reasonable no
longer represented the present state of the law."
On the balance of the
probabilities, this court is not in anyway whatsoever
confronted with any difficulty in affirming the holding
of the learned trial judge that the plaintiff proved
title to the land by a preponderance of evidence because
as I have endeavored to demonstrate, the failure on the
part of the co-defendant to discharge the evidential
burden that shifted to him on the issue of whether Akuse
lands included Okwenya inured advantageously to the
strength of the plaintiff's case. This is typical
example of a situation which Taylor JSC (as he then was)
alluded to in Odametey v Clocuh & Another (supra) where
he stated at page 8 of the report that:
"Per Taylor JSC: The
mechanical application of this so called principle (in
Kodilinye case) in actions for declaration of title -
the genesis of which is traceable to the (dictum) of
Webber CJ in Kodilinye v Odu that "the plaintiff must
rely on the strength of his own case and not rely on the
weakness of the defendant's case" should be deprecated.
If the dictum of Webber CJ stated over half a century
ago supports the proposition that a weakness in the
defendant's case in an action for declaration of title
must not be considered in evaluating the strength of the
plaintiff's case no matter the plaintiff's case then the
dictum is now no more true of the legal position in
modern Ghana, at least since the coming into force of
the Evidence Decree 1975. If there was ever a doubt
about the true position ........ then NRCD 323 has now
definitely cleared all possible doubts.
"In the course of the
trial a number of judgments were tendered by the parties
on either side. The probative value or the legal effect
of such judgments is fully well-known. They may serve to
oust the jurisdiction of the court upon a plea of
estoppe per rem judicatam: see Ababio v Kanga, 1 WACA
253 in the sense that once a court has adjudicated over
a subject matter between parties that matter cannot be
relitigated between the same parties or their privies.
Previous judgments may also serve as evidence of acts of
ownership or possession as the case may be; Akoto v
Agyeman (1962) 1 GLR 524. Upon examination of the
various judgments I was not satisfied that they in
anyway helped resolve the thorny issue of whether 'Akuse
lands' as stated in the Jackson report included to
Okwenya. All the judgments tendered on behalf of the
co-defendant describe boundaries up to the Okwe stream
and no mention anywhere is made of Okwenya. Even in the
instant case nowhere in their pleadings did the
defendant or the co-defendant make mention of Okwenya.
On the other hand, however, the plaintiff and his
grantors had no other word in their mouth than Okwenya.
In his statement of case counsel, for the co-defendant
stated at page 21 thereof certain matters which did not
appear at the trial in the testimonies of the witnesses
and which in my view did not resolve the issue raised by
Counsel for the first defendant in his statement of case
about whether Akuse land stretched to Okwenya. The
statement is as follows:-
"In all the cases which
have been litigated in the courts from 1910 onwards, the
Akuse lands have been described as extending to the Okwe
Stream. Okwenya is merely the name of a village near the
Okwe Stream. The name Okwenya simply means before or in
front of the Okwe. A separate entity Okwenya land never
featured in Jackson's enquiry. The evidence of the Konor
of Many Krobo before Jackson quoted on earlier in this
statement recognised Akuse land as extending from Akuse
to Lomen.
In my view the most
reasonable and safest construction that one can place on
counsel's statement is that the Konor's evidence rather
confirmed the theory of a separate entity called Okwenya.
The Konor must be deemed to have known his villages in
his traditional area. That the plaintiff's grantors
treated Okwenya as a separate entity is borne out by the
following evidence during cross-examination of pw 1
(vide pages 7 & 8 of counsel for first defendant's
statement of case).
Q Between 1967-75 the
mother of co-defendant litigated the family land
including the area in dispute at the High Court and had
judgment.
A She litigated over
Akuse land and not over Okwenya land.
But there is yet
another more significant portion of the evidence which
reveals a fundamental misconception of the real burden
of the action instituted by the plaintiff. It is the
cross-examination of pw 1 at p 137 of the record:-
Q. The co-defendant
has put up a house opposite the land you claim belongs
to your family and he did so without a challenge from
Nana Sasraku?
A Nana Sasraku was
old. I also travelled. When I returned I instituted an
action against him.
Q. You have not sued
the co-defendant in respect of that house.
A. The house is on the
disputed land and if I win this case I will get that
land. I granted the land to some people. The
co-defendant trespassed on that land. The people have
sued him at the Somanya Court and I have joined that
suit".
It is rather strange
that the Akromuase family did not find it prudent to
join this litigation as co-plaintiffs to litigate title
to the land part of which they granted to the plaintiff
on the basis of the traditional history they led. If
they had done so a larger area which pw 1 now talks
about in his cross-examination could have been
adjudicated one way or the other in this suit to avoid
multiplicity of suits in the future. I do not know what
explanation counsel for the plaintiff had for not
advising this approach to the case. The subject matter
of this case for the purposes of any order decreeing
title to land is the land described by the plaintiff in
his writ of summons against the defendant. As far as
that land is concerned the judgment of the court below
is unassailable. An attempt was made to fault the
validity of the Deed of Conveyance registered in the
name of the plaintiff but I found no substance in the
allegation. The defendant was in law deemed to have had
constructive notice of the plaintiff's title to the land
because the registration constituted a notice to the
whole world (see section 25(1) of the Land Registry Act
1962 (Act 122).
In addition to the two
cases cited by the learned trial judge namely, Wilson v
Hart (1866) 1 Ch App 467 where Jurner LJ stated:
"Generally speaking, a
purchaser is bound to inquire into the title of his
vendor and will be affected with notice of what appears
upon the title if he does not so inquire",
I would refer to the
local decision of our Court of Appeal in the case of
Boateng v Dwinfour (1979) GLR 360 at page 366 where the
Court of Appeal supported the principle that a purchaser
who fails to make prudent enquiry is deemed to have had
notice of existing title. On the facts of the case, I
would affirm the judgment of the court below and dismiss
the appeal.
JUSTICE OF APPEAL
ESSILFIE BONDZIE
I agree that the appeal
be dismissed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
AMONOO-MONNEY:
I also agree that the
appeal be dismissed.
J.C. AMONOO-MONNEY
JUSTICE OF APPEAL |
