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Land - Ownership - Vesting
Assent - Lease Agreement -Whether
the Vesting Assent in the
records of the Lands Commission
registered as No. Ar. 3036/2005
is wrongful, null and void and
of no legal effect whatsoever -
Whether or not plaintiff’s
ancestral family settled on the
disputed land well over 300
years ago - Whether or not 1st
Defendant’s family that is the
Arden & Darpoh family acquired
the disputed land by settlement
many years ago - Whether or not
the Jackson Report as published
in the Gazette in 1956 affected
plaintiff’s family’s occupation
of the disputed land
HEADNOTES
The pleaded case of the
Plaintiff was that his family;
i.e. the Forzie Family of Old
Ningo were the beneficial and
lawful owners of this large
tract of land lying at a place
commonly known and called
Terkpenya. His forefathers
acquired the said land through
settlement over three hundred
(300) years ago and had
exercised ownership over same by
the rearing of cattle and
farming food crops on same. They
had also established forty (40)
settlements or sub-villages on
portions of the land. He
mentioned four (4) of such
settlements as Akahie, Namoe,
Mglame and Kpobino. Apart from
the settlements, they had built
a large Dam on the land and also
had eight (8) shrines in some of
the villages. However, recently,
his attention was drawn to a
Vesting Assent made on 24th day
of February 2005 and deposited
in the records of the Lands
Commission (2nd Defendant)
as No. V 4018 and registered as
No. AR 3036/2005 made in favour
of Nene Kwaku Darpoh (1st Defendant)
and others. This Vesting
Assent, according to him, was in
respect of a portion of his said
family land described under
paragraph 5 of his statement of
claim. He contended that neither
his predecessors nor himself or
any member of his family has
granted any portion of the land
to any person or group of
persons to warrant the execution
of the said Vesting Assent in
favour of Nene Kwaku Darpoh (1st Defendant).
The said Vesting Assent is
therefore wrongful, null and
void and of no legal effect
whatsoever. The 1st Defendant,
who said he was the Chief of
Dawhenya in his statement of
defence filed on 14/02/2007,
denied Plaintiff’s claim against
him. His pleaded case in brief
was that the very land Plaintiff
said belonged to his Forzie
Family of Terkpenya, Old-Ningo,
rather belonged to his family by
name the Arden & Darpoh Family
of Dawhenya of which he is the
head. The 1st Defendant,
who amended his statement of
defence three times, described
the land as forming part of
Prampram lands, which shares
boundary with Ningo at the Mile
30 post along the Accra-Aflao
motor road. He counter-claimed
for title to the same land as
belonging to his Arden & Darpoh
Family of Dawhenya who are
natives of Prampram, damages for
trespass and perpetual
injunction restraining the
Plaintiff, his agents, assigns,
etc. from entering, using or in
any way interfering with his
family’s ownership and
possession or control of the
said land, which he described as
the Dawhenya/Ladoku lands.
HELDThe
plaintiff's action was dismissed
because there was no doubt that
the 1st defendant’s
family owns some land in the
disputed area. But as a claimant
for declaration of title to
land, his action could not
succeed unless he leads
sufficient evidence as to his
title. The 1st
defendant woefully failed to
clearly identify the limits or
identity of the land he claimed
in his counter-claim, including
his boundaries with the 3rd
defendant.
STATUTES REFERRED TO
IN JUDGMENT
1992,Constitution, Article 131
(1) and (2)
Courts Act, 1993 [Act 459]
Supreme Court Rules [C.I. 16),
1996.
CASES REFERRED TO IN JUDGMENT
AKUFFO-ADDO v CATHERINE [1992] 1
GLR 337;
TUAKWA v BOSOM [2001-2002] SCGLR
61;
ACKAH v PERGAH TRANSPORT [2000]
SCGLR 728;
ARYEH v AYAA [2010] SCGLR 891.
KOGLEX LTD (No. 2) v FIELD
[2000] SCGLR 175;
NTIRI v ESSIEN [2001-2002] SCGLR
459;
ACHORO v AKANFELA [1997-97]
SCGLR 209;
SARKODIE v F.K.A. CO.LTD [2009]
SCGLR 79;
JASS COMPANY LTD. V APPAU [2009]
SCGLR 265;
GREGORY v TANDOH IV & HANSON
[2010] SCGLR 971;
MONDIAL VENEER (GH) LTD v AMUA
GYEBU XV [2011] 1 SCGLR 466.
JASS CO.LTD v APPAU [2009] SCGLR
265;
TETTEH & Anor v HAYFORD
(Substituted by) LARBI & DECKER
[2012] SCGLR 417;
NORTEY (No. 2) v AFRICAN
INSTITUTE OF JOURNALISM &
COMMUNICATIONS & Ors. (No. 2)
[2013-2014] 1SCGLR 703
BOOKS REFERRED TO IN JUDGMENT
Jackson Report
REFLECTIONS ON THE SUPREME COURT
OF GHANA’, published by Wildy,
Simmonds & Hill Publishing
Company, London, England (2015),
DELIVERING THE LEADING JUDGMENT
YAW APPAU, JSC:
COUNSEL
RAYMOND BAGNABU ESQ.
WITH HIM BELINDA PWAMANG FOR
THE 1ST
DEFENDANT/APPELLANT/APPELLANT.
HEWARD MILLS ESQ.
FOR THE 3RD
DEFENDANTRESPONDENT/RESPONDENT.
MICHAEL DONKOR ESQ.
FOR THE
PLAINTIFF/APELLANT/RESPONDENT
JUDGMENT
YAW APPAU, JSC:
My Lords, the appeal before us
is a progeny of a three-pronged
action initiated by the
Plaintiff Kweinor Tei Kwabla who
described himself under
paragraph 1 of his Statement of
Claim as the head of the Forzie
Family of Terkpenya, Old Ningo
on whose behalf he sued. The
endorsement on his writ of
summons filed on 14/02/2007 was
as follows:
1.
Plaintiff claims against 1st
and 3rd Defendants:
(a)
A declaration of title to the
vast tract and parcel of land
being, lying and situated at
TERKPENYA in the Greater Accra
Region containing an approximate
area of 9404.28 acres more or
less and which piece and parcel
of land is more particularly
described in paragraph 5 of the
accompanying statement of claim.
(b)
An order for perpetual
injunction to restrain 1st
and 3rd Defendants,
their agents, assigns, privies,
workmen, labourers or any
persons lawfully claiming
through 1st and 3rd
Defendants from having anything
to do with the said land, more
particularly entering thereto
with the purpose of developing
or alienating same or doing any
act or acts detrimental to the
right and interest of Plaintiff
in the said land.
(c)
General damages for trespass.
2.
Plaintiff claims against 1st
and 2nd Defendants:
(a)
A declaration that the
plotting of a Vesting Assent
(made on the 24th day
of February 2005 in the records
of the Lands Commission (2nd
Defendant) as No. V 4018 and
registered as No. Ar. 3036/2005
made in favour of NENE KWAKU
DARPOH and OTHERS is wrongful,
null and void and of no legal
effect whatsoever.
(b)
An order directed at the 2nd
Defendant to expunge the
registration of the said Vesting
Assent from its records.
3.
Plaintiff claims against the
Defendants for:
(a)
A declaration that a lease
Agreement executed by Numo
Awuley Kwao, the 3rd
Defendant herein dated the 10th
day of October 2004 plotted in
the records of the Lands
Commission (2nd
Defendant) as No. V 5380 and
registered as No. AR 7898/2005
is wrongful, null and void and
of no legal effect whatsoever.
(b)
An order directed at the
Lands Commission (2nd
Defendant) to expunge the said
plotting and registration of the
lease Agreement described above
from its records.
All the three Defendants entered
appearance to the Writ through
separate legal representations.
While the 1st and 3rd
Defendants defended the actions
against them, the 2nd
Defendant (the Lands
Commission), in its usual way of
handling such legal suits
against it, failed to defend the
action. The trial High Court
judge rightly commented on the
conduct of the 2nd
Defendant in his judgment of 27th
October 2011 as follows:
“By way of preliminary remark,
it must be noted that the 2nd
Defendant (Lands Commission) did
not participate in this case,
quite apart from entering
appearance. Perhaps, as has been
their trademark in cases of this
nature whereby they are being
called upon to cancel and
expunge title deeds, they cannot
but wait to abide the outcome
and the direction of the Court”.
The above description of the
conduct or usual practice of the
Lands Commission in such matters
is apt, as it always plays a
neutral role after it has
created a rift between rival
claimants over lands in the
exercise of its administrative
and/or oversight functions
relative to registration of
title interests.
The pleaded case of the
Plaintiff was that his family;
i.e. the Forzie Family of Old
Ningo were the beneficial and
lawful owners of this large
tract of land lying at a place
commonly known and called
Terkpenya. His Portions of the
land. He mentioned four (4) of
such settlements as Akahie,
Namoe, Mglame and Kpobino. Apart
from the settlements, they had
built a large Dam on the land
and also had eight (8) shrines
in some of the villages.
However, recently, his attention
was drawn to a Vesting Assent
made on 24th day of
February 2005 and deposited in
the records of the Lands
Commission (2nd
Defendant) as No. V 4018 and
registered as No. AR 3036/2005
made in favour of Nene Kwaku
Darpoh (1st
Defendant) and others.
This Vesting Assent, according
to him, was in respect of a
portion of his said family land
described under paragraph 5 of
his statement of claim. He
contended that neither his
predecessors nor himself or any
member of his family has granted
any portion of the land to any
person or group of persons to
warrant the execution of the
said Vesting Assent in favour of
Nene Kwaku Darpoh (1st
Defendant). The said Vesting
Assent is therefore wrongful,
null and void and of no legal
effect whatsoever.
His further contention was that
his attention was again drawn to
a lease agreement executed by
Numo Awuley Kwao (3rd
Defendant) dated 10th
day of October 2004 plotted in
the records of the Lands
Commission (2nd
Defendant) as No. V 5380 and
registered as No. AR 7898/2005,
which is also in respect of a
portion of his said family land.
With regard to this lease also,
neither his predecessors nor
himself or any member of his
family has ever executed any
lease agreement or any document
in favour of the 3rd
Defendant Numo Awuley Kwao. The
said lease agreement is
therefore wrongful, null and
void and of no legal effect. It
is as a result of the above
averments that he instituted
this action against all three
defendants claiming the reliefs
as endorsed.
The 1st Defendant,
who said he was the Chief of
Dawhenya in his statement of
defence filed on 14/02/2007,
denied Plaintiff’s claim against
him. His pleaded case in brief
was that the very land Plaintiff
said belonged to his Forzie
Family of Terkpenya, Old-Ningo,
rather belonged to his family by
name the Arden & Darpoh Family
of Dawhenya of which he is the
head. The 1st
Defendant, who amended his
statement of defence three
times, described the land as
forming part of Prampram lands,
which shares boundary with Ningo
at the Mile 30 post along the
Accra-Aflao motor road. He
counter-claimed for title to the
same land as belonging to his
Arden & Darpoh Family of
Dawhenya who are natives of
Prampram, damages for trespass
and perpetual injunction
restraining the Plaintiff, his
agents, assigns, etc. from
entering, using or in any way
interfering with his family’s
ownership and possession or
control of the said land, which
he described as the
Dawhenya/Ladoku lands.
In
the subsequent amendments of his
statement of defence and
counter-claim, the 1st
defendant changed the
description of the land which he
claimed belonged to his family
twice. He again changed the name
of the land from Dawhenya/Ladoku
lands to Arden & Darpoh Family
lands. This conduct of the 1st
defendant in giving three
separate descriptions of his
so-called family land in his
original statement of defence
and counter-claim and subsequent
amendments of same on 19/03/2009
and 10/02/2011, made the trial
judge in his judgment at page
449 of the ‘ROA’ to comment
thus:
“By 1st defendant’s
showing, their counter-claim
initially related to 9,404.28
acres, the same size of land
plaintiff claimed. By an
amendment, 1st
defendant shifted his claim to
2,616 acres and this size of the
land claimed was further reduced
to 2,434 acres. Quite clearly, 1st
defendant exhibited uncertainty
as to the size of the land he is
claiming. As the hearing of the
case proceeded, the 1st
defendant could not stand the
gaze of the incredulity of his
counter-claim and so he kept on
shifting the goal post to avoid
failure”.
The 3rd Defendant
Numo Awuley Kwao who said he is
the head of the Awuley Kwao
Family of Miotso, Prampram also
denied Plaintiff’s claim in his
statement of defence filed on
22/03/2007. He challenged
Plaintiff’s claim over portions
of the land described in his
statement of claim and claimed
those lands as belonging to his
family. Though he did not
counter-claim, unlike the 1st
defendant, he was certain about
the portions of the disputed
land that belonged to his family
and gave instances of the
exercise of overt acts of
ownership and possession by his
said family with the consent of
the 1st Defendant,
all of whom are natives of
Prampram. He again made
reference to the Jackson Report,
which was published in the
Gazette Extraordinary (No. 52)
of 3rd August 1956,
which demarcated the boundary
between Ningo and Prampram as
lying exactly at the Mile 30
post along the Accra – Aflao
motor road. He later tendered
this report in evidence in
support of his case.
According to this report
prepared by the Jackson
Commission, which was
commissioned by the Colonial
Government to demarcate the
boundaries between these two
settlements including Shai, when
a dispute arose as to wherein
lies their respective
boundaries, lands lying beyond
the mile 30 post belonged to
Ningo while those before mile 30
belonged to Prampram. A greater
portion of the land that
plaintiff claimed in the action
falls within the range of mile
22 and mile 30 along the Accra –
Aflao motor road.
From the Jackson Report, that
portion of the disputed land
belonged to the people of
Prampram so the 3rd
Defendant’s contention was that
as a Ningo man, plaintiff could
not claim those lands as
belonging to his family. He also
challenged 1st
defendant’s claim over the same
land and contended that 1st
defendant’s family, which is
from Prampram and moved to
settle at Dawhenya only owns a
small portion of those lands
with the greater portion
including the whole of Miotso,
where the Central University is
situated, being his family land.
So
in effect, whilst the 1st
and 3rd defendants,
(all natives of Prampram) agreed
with the Jackson Report on the
correct boundary between the
people of Ningo and the people
of Prampram, which according to
them was at the Mile-30 post on
the Accra – Aflao motor road,
they disagreed on the boundary
between their respective
families; (i.e. the Arden &
Darpoh Family of Dawhenya and
the Awuley-Kwao Family of Lower
Prampram). This was because the
1st defendant had
counter-claimed for title to all
the lands claimed by the
plaintiff, which invariably
included 3rd
defendant’s family land.
So
strictly speaking, this boundary
issue between the 1st
Defendant’s Family and the 3rd
Defendant’s Family was not one
of the issues set down for
determination by the trial court
as it never surfaced in their
pleadings. The issues set down
for determination in the trial
court were as follows:
i)
Whether or not
plaintiff’s ancestral family
settled on the disputed land
well over 300 years ago;
ii)
Whether or not 1st
Defendant’s family that is the
Arden & Darpoh family acquired
the disputed land by settlement
many years ago.
iii)
Whether or not the
plaintiff is entitled to his
claim;
iv)
Whether or not the 1st
Defendant is entitled to his
counter claim;
v)
Whether or not the
Jackson Report as published in
the Gazette in 1956 affected
plaintiff’s family’s occupation
of the disputed land;
vi)
Whether or not
plaintiff’s family shares common
boundary with Prampram beyond
mile 30 or at the site earmarked
for the construction of the
National Olympic Stadium;
and
vii)
Whether or not the
two vesting assents prepared by
1st and 3rd
defendants are void and should
be expunged from the record of
the 2nd defendant.
It
was during the cross-examination
of one of 3rd
defendant’s only witness and
then the 1st
defendants second witness that
the issue of the boundary
between the 1st
defendant and the 3rd
defendant cropped up coupled
with the fact that 1st
defendant had counter-claimed
for title to the very land
plaintiff was claiming, which as
indicated above, happened to
include 3rd
defendant’s family land. Had it
not been that development, there
would have been no contest
whatsoever between the 1st
and 3rd Defendants
over their boundary as the
dispute was mainly between
Plaintiff as a Ningo man and the
1st and 3rd
Defendants as Prampram men.
The Decision of the trial High
Court on the respective claims
of the Plaintiff and 1st
Defendant
The trial High Court, in its
judgment of 27th
October 2011, found the
Plaintiff’s claim against all
the defendants unproven. It
accordingly dismissed same. In
like manner, it found the 1st
defendant’s counter-claim
against the Plaintiff as not
worthy of credit and dismissed
that also.
The main reason for dismissing 1st
defendant’s counter-claim was
that he had failed to establish
the limits of his boundary with
the 3rd defendant not
withstanding clear evidence on
record that his family (i.e. 1st
defendant’s family) also has
land within the disputed area.
As for the 3rd
Defendant, he did not
counter-claim for title to the
land he claimed belonged to his
family, so there was no onus on
him to establish anything as was
decided by this Court in the
case of ASANTE-APPIAH v AMPONSAH
‘alias’ MANSAH [2009] SCGLR 90.
Again, from the onset as could
be gleaned from the pleadings
and the issues agreed on for
determination in the application
for directions, no issue
surfaced for determination
concerning the boundary between
his family and that of the 1st
defendant’s family.
The trial High Court, having
dismissed all the claims of the
Plaintiff against the three (3)
defendants and the counter-claim
of the 1st Defendant
against the Plaintiff, awarded
costs of GHc10, 000.00 in favour
of the 3rd Defendant
against the Plaintiff and
another costs of GHc7,000.00 in
favour of the 3rd
Defendant against the 1st
Defendant.
Plaintiff and 1st
Defendant’s appeals to the Court
of Appeal
The Plaintiff, not satisfied
with the judgment of the trial
High Court, filed a notice of
appeal against same to the Court
of Appeal on 13/11/2011. The
relief sought in the notice of
appeal was to set aside the said
judgment and enter judgment for
the Plaintiff. The grounds of
appeal, which were four in all,
were:
a)
The learned trial
judge failed to give any or
adequate consideration to the
case of the Plaintiff and
thereby erred in law by giving
judgment which is against the
weight of evidence.
b)
The learned trial
judge misdirected himself on the
issue of the burden of proof and
thereby erred in law in imposing
a higher standard of proof on
the Plaintiff.
c)
Having found that the land
claimed by the 1st
Defendant falls within the lands
of the Plaintiff, the learned
trial judge erred in law in not
giving judgment for plaintiff as
against the 1st
Defendant.
d)
The learned trial judge erred in
law by failing to resolve the
issues of dispute that arose
between the Plaintiff and the 3rd
Defendant.
The 1st Defendant
also filed a notice of appeal
against the dismissal of his
counter-claim on 12/12/2011. The
relief he sought from the Court
of Appeal was to reverse the
judgment of the trial High Court
and to enter judgment in his
favour on his counter-claim.
Like Plaintiff, his grounds of
appeal were four and they were
as follows:
1)
The judgment of the Court in
relation to the 1st
Defendant’s counter-claim was
totally against the weight of
the evidence on record.
2)
The learned trial judge did not
adequately consider the case put
forward by the 1st
Defendant and the Court thereby
erred in dismissing the 1st
defendant’s counter-claim.
3)
The learned trial judge
misdirected himself making
wrongful evaluations and
findings in respect of Exhibits
1 and 3D6 in favour of the 3rd
Defendant to the detriment of
the 1st Defendant. By
so doing, the Court occasioned a
grave miscarriage of justice to
the 1st Defendant’s
case.
4)
The award of costs made in
favour of the 3rd
Defendant against the 1st
Defendant was excessive.
Both appellants; i.e. Plaintiff
and 1st Defendant,
lost their respective appeals
before the Court of Appeal,
which affirmed the judgment of
the trial High Court in its
entirety. The Plaintiff,
realising that it was not worth
climbing further the appeal
ladder, succumbed to the
decision of the 1st
appellate Court and allowed
sleeping dogs to lie
undisturbed. He therefore did
not appeal against that
judgment. The 1st
Defendant, however, thought it
necessary to go on further. He
therefore filed a notice of
appeal on 14/07/2014 against the
judgment of the Court of Appeal
to this Court.
The relief sought by the 1st
Defendant in his notice of
appeal before this Court was for
the judgments of the trial High
Court and the Court of Appeal
against him to be set aside and
judgment entered in his favour
on his counter-claim. The
grounds of appeal were:
i)
The judgment of the Court of
Appeal in dismissing the 1st
Defendant/respondent/appellant’s
appeal is against the weight of
evidence on the record.
ii)
The Court of Appeal did not
adequately consider the case put
forward at the trial court by
the 1st Defendant on
record and therefore erred in
dismissing the 1st
defendant/respondent/appellant’s
appeal.
iii)
The Court of Appeal did not
adequately consider the evidence
of the 1st
defendant’s witnesses on record
and thus erred in its conclusion
that the 1st
defendant failed to describe the
boundaries of his land.
All three grounds of appeal
basically fall under the first
ground since 1st
Defendant’s contention was that
both the trial court and the
Court of Appeal did not
adequately consider his
testimony and that of his
witnesses in arriving at their
respective decisions; meaning
the judgment was against the
weight of evidence.
In
such a situation, the
authorities are legion that it
is incumbent upon us to analyse
the entire record of appeal,
taking into account the totality
of the evidence on record, both
oral and documentary, so as to
satisfy ourselves that on the
preponderance of the
probabilities, the conclusions
of the trial court and the 1st
appellate court, are reasonably
and amply supported by the
evidence adduced at the trial.
This is the principle laid down
by this Court in several cases
including: AKUFFO-ADDO v
CATHERINE [1992] 1 GLR 337;
TUAKWA v BOSOM [2001-2002] SCGLR
61; ACKAH v PERGAH TRANSPORT
[2000] SCGLR 728; ARYEH v AYAA
[2010] SCGLR 891.
Again, the circumstances under
which a second appellate court
like this Court may interfere
with the concurrent findings of
fact of two lower courts; (i.e.
the 1st appellate
court and the trial court), are
well-established in a long line
of cases. Some of these cases
are: KOGLEX LTD (No. 2) v FIELD
[2000] SCGLR 175; NTIRI v ESSIEN
[2001-2002] SCGLR 459; ACHORO v
AKANFELA [1997-97] SCGLR 209;
SARKODIE v F.K.A. CO.LTD [2009]
SCGLR 79; JASS COMPANY LTD. V
APPAU [2009] SCGLR 265; GREGORY
v TANDOH IV & HANSON [2010]
SCGLR 971; MONDIAL VENEER (GH)
LTD v AMUA GYEBU XV [2011] 1
SCGLR 466.
Wood, C.J. in the Mondial
case (supra), cited with
approval the dictum of Acquah,
JSC (as he then was) in the
Achoro case (supra) on the
position of the law 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
apparent in the way in which
lower tribunals had dealt with
the facts. It must be
established; e.g. 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 finding 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”.
As
the trial judge rightly asserted
at page six (6) of his judgment
which appears at page 442 of the
ROA; “the consideration of
issues (i), (iii) (v) and (vi)
relates to the determination of
plaintiff’s claim, to wit;
whether or not the plaintiff has
any title to the disputed land,
whilst the consideration of
issues (ii) and (iv) would
relate to the determination of 1st
defendant’s claim, namely;
whether or not the 1st
defendant is entitled to his
counter-claim, thus leaving
issue (vii) namely, whether or
not the two vesting assents are
liable to be expunged from 2nd
defendant’s records for being
null and void.
There was therefore no contest
between the 1st
Defendant and the 3rd
Defendant in the trial court. At
the end of the day, the trial
court dismissed both plaintiff’s
claim and 1st
defendant’s counter-claim. The
trial court did not grant
plaintiff’s request that the two
vesting assents or leases of the
1st and 3rd
defendants be expunged from the
records of the 2nd
defendant. The 1st
defendant’s vesting assent made
on the 24th day of
February 2005 as No. V 4018 and
registered in the records of the
2nd defendant (Land
Commission) as No. AR 3036/2005
therefore remain intact. The
same applied to the 3rd
defendant’s lease agreement
dated 10th October
2004 plotted in the 2nd
defendant’s records as V 5380
and registered as No AR
7898/2005.
The subsequent affirmation of
the trial High Court’s judgment
by the Court of Appeal on the
ground that 1st
Defendant could not establish
the boundaries of the land he
claimed was relative to his
counter-claim against the
plaintiff but not a dispute
between him and the 3rd
Defendant as there was no such
dispute to be determined by the
two lower courts. That judgment
did not therefore affect the 1st
defendant’s vesting assent. So
clearly, there was no basis for
the 1st defendant’s
appeal before this Court.
All the arguments canvassed by
the 1st Defendant in
this Court were just a
repetition of his arguments
before the 1st
appellate court. In fact, he did
not demonstrate in any way that
the judgments of the two lower
courts dismissing his
counter-claim, were not
supported by the evidence on
record.
As
was rightly asserted by the 1st
appellate court per the judgment
of Aduamah Osei, JA at page 802
of the RoA (Volume 2); there is
no doubt that the 1st
defendant’s family owns some
land in the disputed area. But
as a claimant for declaration of
title to land, his action could
not succeed unless he leads
sufficient evidence as to his
title and as to the identity and
limits of the land claimed by
him: JASS CO.LTD v APPAU [2009]
SCGLR 265; TETTEH & Anor v
HAYFORD (Substituted by) LARBI &
DECKER [2012] SCGLR 417; NORTEY
(No. 2) v AFRICAN INSTITUTE OF
JOURNALISM & COMMUNICATIONS &
Ors. (No. 2) [2013-2014] 1SCGLR
703, apply.
Clearly, as the trial court
rightly observed, which
observation was concurred by the
1st appellate court,
the 1st defendant
woefully failed to clearly
identify the limits or identity
of the land he claimed in his
counter-claim, including his
boundaries with the 3rd
defendant. In one instance, he
described his land as sharing a
common boundary with the 3rd
defendant’s family land around
mile 27 or thereabout. In
another instance, he described
his family’s land as lying
between mile 22 and mile 30
where Prampram shares boundary
with the Ningos. In yet another
instance, he described his land
as sharing boundary with the 3rd
defendant’s family at mile 30.
His witnesses too did not help
him on this his alleged boundary
with 3rd defendant.
Aside of this failure to clearly
identify his boundaries with the
3rd defendant,
Exhibits 1, 8, and 8a, which
were a court ordered plan and
site plans respectively, did not
help his case with regard to the
correct boundaries of the land
he claimed in his counter-claim.
A
careful review of the whole
record before the Court shows
without doubt that the 1st
defendant, with the kind of
evidence led before the trial
court, could not have succeeded
on his claim for declaration of
title to the land he variously
described in his original and
amended statements of defence
and counter-claim as covering
9,404.28 acres in one instance,
2,615 acres in another instance
and 2,434 acres in the last
instance. The trial court and
the 1st appellate
court could therefore not be
faulted in coming to that
conclusion.
Since both lower courts were ad
idem that the 1st
defendant’s family owns land in
the disputed area; the only
problem being that 1st
defendant could not clearly
identify same during the trial,
with the dismissal of
plaintiff’s claim by the trial
court and the Court of Appeal,
nothing stops the 1st
and 3rd defendants
who are all natives of Prampram,
from meeting to decide
positively their boundary
between mile 22 and 30, since
the two appear to have been
working in concert prior to the
institution of the present
action against them by the
plaintiff. It was not for either
the trial court or the Court of
Appeal to set or demarcate their
boundary as that was not an
issue before the trial court.
We
also want to point out that both
the trial court and the Court of
Appeal did not disregard the
grants made by the 1st
and 3rd defendants as
recorded in the records of the 2nd
defendant (Lands Commission).
They (the two lower courts)
again did not state in any way
that the vesting assents made in
favour of the 1st and
3rd defendants and
registered in the records of the
2nd defendant (Lands
Commission) were not proper and
therefore should be expunged
from the records.
Again, the 3rd
defendant has not laid claim or
challenged grants made by the 1st
defendant. He only challenged
the 1st defendant’s
claim to all the lands lying
between mile 26 and 30, which
included Miotso. He did not say
that the 1st
defendant has no land in the
area. It was the 1st
defendant who did not describe
properly the land he claimed
belonged to his family with
certainty and clarity as between
him and the plaintiff, thus the
dismissal of his counter-claim.
Also, the 1st
defendant never made any claim
against the 3rd
defendant in his counter-claim
so the trial court and the Court
of Appeal could not have assumed
that there was a dispute between
the 1st defendant and
3rd defendant to be
resolved. The appeal of the 1st
defendant to this Court was
therefore unwarranted and same
is dismissed. The judgment of
the Court of Appeal is
accordingly affirmed.
Though Plaintiff did not appeal
against the decision of the
Court of Appeal affirming the
trial High Court’s dismissal of
his claim, he also filed written
submissions on 14/07/2015 as if
he was an appellant. In his
submissions, he was referring to
the grounds of appeal that he
filed in the Court of appeal as
if they were grounds of appeal
filed in this Court. We wonder
how plaintiff managed to
convince this Court to grant him
extension of time to file a
statement of case in support of
a non-existent notice of appeal,
since he claimed to have filed
the statement of case pursuant
to leave granted by this Court
on 7th February 2015.
As a non-party in the appeal
before us, plaintiff’s
submissions as contained in his
statement of case were a
procedural aberration. Same is
therefore struck-out from the
records as unwarranted and a
complete abuse of the Court’s
process.
By
way of obiter, I wish to make
the following suggestions:
Article 131 (1) and (2) of the
Constitution, 1992, makes
provision for the appellate
jurisdiction of the Supreme
Court in both Civil and Criminal
matters. It reads:
“131 (1) An appeal shall lie
from a judgment of the Court of
Appeal to the Supreme Court:
(a)
As of right in a
civil or criminal cause or
matter in respect of which an
appeal has been brought to the
Court of Appeal from a judgment
of the High Court or a Regional
Tribunal in the exercise of its
original jurisdiction; or
(b)
With the leave of the
Court of Appeal in any other
cause or matter, where the case
was commenced in a Court lower
than the High Court or a
Regional Tribunal and where the
Court of Appeal is satisfied
that the case involves a
substantial question of law or
is in the public interest.
(2) Notwithstanding clause (1)
of this article, the Supreme
Court may entertain an
application for special leave to
appeal to the Supreme Court in a
cause or matter, civil or
criminal, and may grant leave
accordingly”.
Part One, Section 2 (1) of the
Courts Act, 1993 [Act 459] on
the general jurisdiction of the
Supreme Court also provides:
“By virtue of article 129 of the
Constitution, the Supreme Court
is the final court of appeal
and has appellate and other
jurisdictions conferred on it by
the Constitution or by any other
law”.
Section 4 (1) and (2) of the Act
goes on to replicate the
provisions of the Constitution
under article 131 (1) and (2) on
the appellate jurisdiction of
the Supreme Court.
By
the provisions of the
Constitution and Act 459
referred to above; particularly
131 (1) (a) of the Constitution,
1992 and Section 4 (1) (a) of
Act 459, which give automatic
right of appeal in respect of a
civil action that commenced in
the High Court, any party at all
who loses his/her case in both
the High Court and the Court of
Appeal, can invoke the appellate
jurisdiction of the Supreme
Court no matter how frivolous
and vexatious the appeal is;
provided he/she satisfies the
procedural requirements under
rule 8 of the Rules and
Procedures of this Court [C.I.
16), 1996.
Judging from the frivolous
nature of some of the civil
appeals that manage to reach
this apex court, this particular
appeal being one of such
appeals, I think it is high time
the suggestion made by the
eminent jurist, scholar and
author Date-Bah (Dr), JSC on the
automatic right of appeal to
this Court at Chapter 12, page
254 of his recent invaluable
book; ‘REFLECTIONS ON THE
SUPREME COURT OF GHANA’,
published by Wildy, Simmonds &
Hill Publishing Company, London,
England (2015), was given a
reflective consideration. He
wrote: “Strategic
considerations also suggest that
the right of appeal to the
Supreme Court should not be
automatic. If appeals to the
Supreme Court were to be made
subject to the leave of the
Court, this would enable a
sieving process to ensure that
only cases presenting
substantial issues of law are
allowed on appeal to the highest
court of the land. Limiting the
automatic right of appeal to the
Supreme Court should not be
regarded as short-changing those
whose appeals terminate at the
Court of Appeal. Not every
appeal deserves to travel all
the way to the Supreme Court
before justice is done. Some
appeals with simple points of
law are best finally disposed of
in the Court of Appeal. Reform
of the law on this issue,
therefore, deserves attention”.
The above are words of wisdom
from a great jurist like
Date-Bah (Dr), JSC, which need
serious consideration and
re-thinking.
Granted legislative reform to
actualize such a suggestion
would be a daunting task in the
shortest possible time, I would
suggest that, in order that
precious man hours and labour of
justices of this Court is not
wasted on frivolous and
vexatious appeals, the Records
of Appeals (RoA) in respect of
cases listed for hearing or
determination by this Court be
made available to the panel of
judges a couple of weeks or a
month before the date slated for
hearing instead of the current
practice whereby such records
are submitted to judges only
three or four days (including
week-ends) prior to hearing
dates .
This will enable the justices
who are to hear these cases have
ample time to digest the records
properly before the hearing
dates. So that those appeals
which do not deserve
adjournments for detailed
written judgments to be
delivered, could be given
instant treatment in the form of
dismissals. It will also reduce
the load of cases that deserve
written decisions. In this way,
judges of this Court would be
able to come out with quality
judgments that would stand the
test of time as the Court of
last resort, taking cognizance
of the fact that, in the absence
of law clerks to assist in
research work, judges have to
labour to conduct their own
research in the writing of
resourceful judgments.
It
will also contribute in no small
measure, to reducing the number
of undeserved review
applications that parties who
lose before original panels file
in this Court, which have now
become a norm and have assumed
the character of another appeal
hierarchy.
I
hope this suggestion, which is
made in good faith, would be
given the needed attention.
(SGD) YAW APPAU
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREM
COUNSEL
RAYMOND BAGNABU ESQ.
WITH HIM BELINDA PWAMANG FOR
THE 1ST
DEFENDANT/APPELLANT/APPELLANT.
HEWARD MILLS ESQ.
FOR THE 3RD
DEFENDANTRESPONDENT/RESPONDENT.
MICHAEL DONKOR ESQ.
FOR THE PLAINTIFF/APELLANT/RESPONDENT |
