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JUDGMENT
ASARE-KORANG, JA.
This is an appeal by the
Defendant/Appellant against the
decision of the Sefwi Wiawso
High Court wherein judgment was
entered in favour of the
Plaintiff/Respondent who had
sued the Defendant/Appellant for
a declaration of title to a
piece of land situate on Sefwi
Ahwiaa Stool Land, damages for
trespass and an Order of
perpetual injunction restraining
the Defendant, her against,
workmen, family members etc.
from entering the said land.
In this statement of claim the
Plaintiff/Respondent described
the land as being at a place
known as Afukaakrom and bounded
by one Kofi Mensah’s secondary
forest land: Kwabena Gyabeng’s
(deceased) secondary forest land
and the land of Kwasi Ahia.
In his evidence in chief, the
Plaintiff/Respondent stated his
boundary owners as his late
granduncle Kwabena Gyabeng,
Kwasi Aha and the Aboabo stream
and he added that the land of
the late Kofi Mensah was on the
opposite side of the Aboabo
stream.
The Plaintiff/Respondent
testified that he acquired a
piece of forest land at Sefwi
Ahwiaa at a place called Kwasi
Afukaakrom and planted Cocoa
thereon.
Subsequently the Cocoa trees
withered and apparently died as
the land turned into a secondary
forest. Portions of the land
have been reactivated Cocoa and
oil palm trees thereon. There is
an uncultivated portion of the
land which is the subject-matter
of this appeal.
The boundary owners stated by
the Plaintiff/Respondent in his
evidence were Kwabena Gyabeng,
Kwasi Aha and the Aboabo stream.
He said further that he shared
boundary with one Kofi Mensah
whose land was on the opposite
side of the Aboabo stream. The
boundary owners, Kofi Mensah and
Kwasi Aha had died and their
respective relatives had taken
possession of their land. In
support of his case the
Plaintiff/Respondent called two
boundary owners. The first
witness was the customary
successor of Kwabena Gyabeng and
the second was the granddaughter
of Kwame Mensah. It seems it was
this Kwame Mensah that the
Plaintiff/Respondent named as
Kofi Mensah.
The plaintiff/Respondent’s first
witness stated that he used to
assist his predecessor Gyabeng
on his land and in doing so he
saw the Plaintiff/Respondent
also working on his land.
In her evidence, the Plaintiff’s
second witness stated that the
boundary owner Kwame Mensah
(deceased) was her grandfather
and she was in possession of her
grandfather’s land. She
asserted, in effect, that the
Aboabo stream lies between her
land and Plaintiff/Respondent’s
Land.
The Defendant/Appellant in her
testimony described the land in
dispute as situate at
Mayebonikrom on Ahwiaa stool
land. She insisted that the land
in dispute was first cultivated
in its virgin state by her
brother Kwasi Asante who granted
part of the land to one Asua,
Plaintiff/Respondent’s paternal
uncle and it was Asua who
brought the
Plaintiff/Respondent’s father
also known as Kwasi Afukaa on to
the land. That is why, according
to the Defendant/Appellant, the
land is called Kwasi Afukaakrom
but the real name is
Mayebonikrom.
The Defendant/Appellant stated
that the land shares boundaries
with Kwabena Agyebeng, Opanin
Nyansa and the Aboaboka stream
but in cross-examination, she
declared that the Aboaboka
stream is far away from the land
in dispute. She relied on a CDR
arbitration report (Exhibit)
between her and the
Plaintiff/Respondent’s nephew,
one Brown, over the disputed
area in which one Kwabena SOR,
the Plaintiff/Respondent’s
paternal cousin gave evidence on
her behalf.
This arbitration report was not
filed as part of the record of
this appeal but it makes no
difference that it was not
because it was rejected by the
trial court in its judgment and
by Counsel for both parties
herein in their statements of
case as being of no relevance in
deciding this case one way or
the other.
In her statement of Defence the
Defendant/Appellant gave the
boundaries of the land as Agya
Nyansa and Kwabena Gyabeng’s
land marked by a footpath. This
is in contrast with her
testimony on oath where she gave
the boundaries as Agyabeng,
Opanin Nyansa and the Aboaboka
stream which she later reversed
when she stated that the
Aboaboka stream is far away from
the land in dispute.
The Defendant/Appellant called
no witness at the trial.
Pronouncing judgment in favour
of the Plaintiff/Respondent, the
learned trial judge cited among
other cases the decision in
LAMPTEY (alias NKPA) vrs. FANYIE
(1988-89) CLR SC (1) holding (1)
of which reads:
“. . . . On general principles
it was the duty of the Plaintiff
to prove his case. However, when
on a particular issue he had led
some evidence then the burden
would shift to the defendant to
lead sufficient evidence to tip
the scales in his favour. The
defendant would win only if, he
was able to do that . . . ”
On the basis of this principle
the learned trial judge in the
instant case held as follow. “It
is surprising, to say the least,
why the Defendant, in the face
of overwhelming odds, failed to
call a single witness to come
and testify for her. Generally
in a civil action, a party with
the burden of producing evidence
must produce sufficient evidence
to require the judge to weigh
the evidence before deciding
(see CROSS, EVIDENCE 3rd De.
1974) The test for measuring
sufficiency of evidence to meet
the burden of Producing evidence
is that the evidence is
sufficient if a reasonable mind
would hold that the existence of
the fact in issue was more
probable than its non-existence.
(see EVIDENCE DECREE, 1975—NRCD
323, Section 11(4)….
The present case shows that the
onus of proof lies on the
balance of Probabilities as
found in Section 11(4) of the
EVIDENCE DECREE, 1975, (NRCD
323). The analyses of the facts
and evidence in this judgment
are sufficient to tilt the
balance of probabilities in
favour of the Plaintiff and it
is the considered view of this
court that the Plaintiff has
established his case by the
preponderance of facts and
evidence adduced before me and I
hereby decree that the Plaintiff
is entitled to the reliefs he is
seeking.”
In the instant appeal against
the decision of the learned
trial judge, three grounds of
appeal were filed by the
Defendant/Appellant but only one
consistent ground was argued by
Counsel for the
Defendant/Appellant in his
Statement of Case, namely:
“The judgment was against the
weight of evidence.”
Counsel for the
Defendant/Appellant then
proceeded to review and weigh
the evidence led by the
Plaintiff/Respondent and his
witnesses and then examined the
law which he considered was
applicable to those pieces of
evidence.
The submission made by Counsel
for the Defendant/Appellant was
that from the evidence led
before the learned trial judge,
it was clear that the
Plaintiff/Respondent was not
able to prove the boundaries of
his land.
According to counsel the grounds
for saying so were that Kofi
Attah, the
Plaintiff/Respondent’s first
witness alleged in his
evidence-in-chief that as
successor of Opanin Agyabeng he
inherited the land of Opanin
Agyabeng which land shares
boundaries with the land of the
Plaintiff/Respondent and Agya
Mensah and Kwasi Aha.
Then in cross-examination, Kofi
Attah recanted and stated:
“I now say my land does not
share boundary with Kwasi and
Agya Mensah.”
Again whilst the second witness
for the Plaintiff/Respondent
claimed that her land shares
boundaries with
Plaintiff/Respondent’s land and
the land of Kwame Mensah and
Opanin Kwasi Aha, she explained
during cross-examination that:
“The Plaintiff’s land is on side
of the stream Aboabo. My land
and that of Aha are on the
opposite bank of this stream.”
The significance of this piece
of evidence, Counsel submitted,
was that the
Plaintiff/Respondent does not
share boundary with his second
witness as the
Plaintiff/Respondent had himself
given evidence that the late
Kofi Mensah’s land is on the
opposite bank of Aboabo stream.
Counsel further submitted that
because the indorsement on the
Plaintiff/ Respondent’s writ of
summons was at variance with his
own evidence and that of his
second witness, the
Plaintiff/Respondent was
uncertain about his boundary
owners, and on the authority of
Bedy vrs. Agbi (1972) 2 GLR 238
at 241 and Nyikplorkpo vrs.
Agbodotor (1987-88) 1 GLR at p.
171, the failure of the
Plaintiff/Respondent to prove
his boundaries and the limits of
his land was disastrous to his
claim.
The basic rule is that “an
appeal shall be by way of
rehearing and in AKUFO ADDO vrs.
CATHLINE (1992) 1 GLR 377 at p.
403, the Supreme Court held that
where an appellant appealed
against a judgment on the
general ground that “the
judgment was against the weight
of evidence”, the Appellate
Court had jurisdiction to
examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts.
The appeal herein being based on
the general ground, it is open
to this court to look at the
whole of the evidence given at
the trial, which in fact is the
approach taken by the
Defendant/Appellant.
In my opinion, there was no
uncertainty about the boundaries
given by the
Plaintiff/Respondent and his
witnesses.
The Plaintiff/Respondent
consistently gave his boundary
owners as Opanin Kwabena
Agyabeng, Kwasi Aha and Kofi
Mensah, with the Aboabo stream
lying between his land and that
of Kofi Mensah.
I think it was a strain on
language when the
Plaintiff/Respondent stated in
his evidence-in-chief that the
Aboabo stream was one of hiossic
boundary owners, because the
Aboabo stream cannot by any
stretch be a boundary owner. A
stream may only be a boundary
feature and no more.
The only proper and consistent
interpretation I place on the
evidence of the
Plaintiff/Respondent and his
second witness is that the
Aboabo stream is a boundary
feature separating and
distinguishing his land from the
land of Kwame Mensah and Kwasi
Aha who are on the other bank of
the Aboabo stream.
Counsel for the Defendant also
argued that because the
Plaintiff/Respondent’s first
witness claimed that he shared
boundaries with Kwasi Aha and
Agya Mensah and later back
pedaled that he did not, to the
extent that the witness changed
his story, the
Plaintiff/Respondent did not
know his boundaries.
In my view, this is only an
inconsistency in the evidence of
the Plaintiff/Respondent’s first
witness and is not a departure
from the claim or allegation by
the Plaintiff/Respondent that
his land shared boundary with
the land of his second witness.
Furthermore the fact that the
land of the first witness of
Plaintiff/Respondent is not
bounded by the land of Kwasi Aha
and Agya Mensah in no way
conflicts with this evidence
that he shares boundary with the
Plaintiff/Respondent.
What the trial court was called
upon to decide in this case was
strictly not a boundary dispute
for when asked whether the
Aboabo stream would be found at
the area in dispute, the
Defendant/Appellant while being
cross examined replied:
“A: It is far away from the land
in dispute.”
Further asked in
cross-examination whether the a
Plaintiff/Respondent’s boundary
is marked by Aboabo stream the
Defendant/Appellant answered:
“A: Kwasi Afukaa (Plaintiff) has
got no land in the area. I do
not share boundary with him.”
(Emphasis mine).
What the trial court had to
determine, therefore, was a
clear cut dispute involving
ownership of and title to land.
In circumstances where the
controversy between the parties
is not strictly concerned with
boundaries but where a
particular piece of land is
situated, it has been held that:
“where a party was claiming a
declaration of title to land the
Defendants gave evidence showing
that they themselves were not
boundary owners to the land
being claimed and on the
evidence, the controversy was
not strictly a boundary dispute
but where the land was situated,
it would be irrelevant to call
all the boundary owners to
testify. What was important in
such a case was the traditional
evidence as to how the parties
or their respective ancestors
acquired the land in its virgin
state,….....
acts of ownership and evidence
of people who knew the facts who
could be either boundary owners
or farmers on the land.”
See NUAMAH vrs. ADUSEI & Ors.
(1989-90) GLR.
In this appeal since the
Plaintiff/Respondent maintained
that he and members of his
family were working on the
disputed land and called
witnesses who claimed to have
seen him cultivating the land in
dispute, when the
Defendant/Appellant testified
that the land was virgin forest
owned by his brother Kwasi
Asante who first cultivated the
land in its virgin state and
that Kwasi Asante gave part of
the land to the
Plaintiff/Respondents
predecessor, ASUA had come on to
the land to meet the
Defendant/Appellant’s KWAW NTORI
there.
That burden was not discharged
when defendant/appellant alone
went into the witness box and
testified on the traditional
history of the land without
calling other members of her
family with knowledge of the
history of the land or
independent witnesses such as
those she mentioned as sharing
boundaries with the disputed
land.
In view of the oblique admission
by the defendant/appellant that
she gave the land in dispute to
her daughter to farm on two or
three years before she gave
evidence in the High Court,
because she had grown old I
hold, and find the judgment of
the trial High Court, entered in
favour of the
Plaintiff/Respondent to be
unexceptionable.
The judgment of the said High
Court is affirmed and the appeal
of the Defendant/Appellant
accordingly dismissed.
I agree
B. T. ARYEETEY
JUSTICE OF APPEAL
I also agree
E. K. PIESARE
JUSTICE OF APPEAL
COUNSEL
ANTHONY NORVOR FOR
DEFENDANT/APPELLANT
PAUL NKUA-GYAPONG FOR
PLAINTIFF/RESPONDENT |
