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JUDGMENT
TWENEBOA-KODUA, J. A.
The plaintiff, qua respondent in
this appeal, obtained judgment
in the High Court, Kumasi
against the defendants and
Co-defendant, all as appellants
for relief as follows:—
"1. A declaration of title to
all that piece and parcel of
land with cocoa trees thereon
situate, lying and being at
Asokori on a land commonly known
and called Owirekokrom on
Asokori Stool lands bounded by
the properties of Kwasi Owusu,
Kwasi Dadaa, Yaw Darkwa and "mununkum"
and Yamoah Naama streams, and
"3. Perpetual injunction
restraining the defendants,
their agents, servants and/or
workmen from anyway interfering
with the subject matter in
dispute".
The Court below also granted
against the
defendants/appellants damages
assessed at ¢2,000 in favour of
the respondent. Above all, the
respondent was adjudged to
recover costs assessed at ¢5,000
against all the appellants.
The appeal herein has been
launched from the judgment of
the court below on grounds
formulated as follows:
"(i) The judgment is against
the weight of the evidence on
record.
(ii) The learned judge erred in
law in giving judgment for the
plaintiff when the plaintiff
failed to describe fully the
identity of the land.
(iii) The judge failed to make a
finding on the Co-defendant's
counterclaim."
In the submission filed on
behalf of his clients, counsel
for the appellants limited
the appeal to the second ground
and, in robust self-confidence
and self-satisfaction, hoped
that the argument urged upon us
on that crucial ground would
carry the day. He therefore
abandoned the other couple of
grounds.
Counsel for the appellants
submitted that there had been a
vague description of the
disputed land in the court
below. He adverted to the
endorsement on the writ of
summons and to the description
in the first limb of the claim,
viz" . . . . . all that piece or
parcel of land with cocoa trees
thereon situate, lying and being
at Asokore on a land commonly
called Owereko-Krom on Asokore
Stool land and bounded by the
properties of Kwasi Owusu, Kwasi
Dadaa, Yaw Darkwa, Munukum and
Yamoah Stream;" and contended
that the identity of the land
was not made manifest by this
description.
Counsel adverted to paragraph 2
of the respondent's statement of
claim in the Court below at page
7 of the Appeal Record which
carried a similar description of
the disputed land. As well the
respondent swore in-chief in the
court below, counsel submitted,
to an identity of the disputed
land in vague and nebulous
terms.
The respondent swore thus: "The
land is situated at
Owereko-Krom, it is on the
Asokore Stool land. The land is
bounded by Opanin Akwasi Owusu,
Akwasi Dadaa, Opanin Yaw Darkwa,
the stream Nununkum and Naama
Stream." Counsel for the
appellants found no satisfaction
with the respondent's
description, for it brought no
improvement to the nebulous
claim of the respondent.
Counsel at that juncture settled
for the exposure of what he
perceived as the weaknesses in
the description of the disputed
property: the acreage of the
land remained unknown, the
compass direction of the
boundary owners was not shown or
known; "the measurements of the
boundaries", whether in "poles,
ropes", were undisclosed in the
sworn evidence offered by the
respondent and his witnesses. It
was also contended that no plan
(I guess survey plan) was
tendered to make clear the
identity of land claimed.
Counsel next took the matter to
its legal dimension and
submitted that the ambiguous
description of the respondent's
claim was contrary to the
principle settled in the case of
ANANE & ANOR vrs. DONKOR & ANOR
[1965] GLR. 188 at pp 192/3. In
that case, Ollenu, JSC stated
the principle as follows:—
"Where a court grants
declaration of title to land or
makes an order for injunction in
respect of land, the land the
subject 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
punished. If the boundaries of
such land are not clearly
established, a judgment or order
of the court will be in vain.
Again, a judgment for
declaration of title to land
should operate as res judicata
to prevent the parties
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
with the land the subject-matter
of a suit."
Counsel for the appellants found
the application of the principle
above compelling in this case
against the backdrop of the
overwhelming evidence on record
that the predecessor and uncle
of the Co-defendant/appellant,
under whom the other appellants
derive their interest, held
title to land in the same or
relevant area.
Counsel demonstrated that the
respondent admitted unabashedly
in cross-examination that one
Denteh, an uncle of the
Co-defendant [the sixth of the
appellants] owned property in
the area. As well one Yaw Agyei,
a star witness for the
respondent also asserted
positively on Oath that the late
Denteh held title to land in the
location.
We hasten to indicate here that
both the respondent and the said
star witness were categorical in
the record of appeal that the
respondent's ancestral land was
not coterminous with Darteh’s
property that devolved on the
6th appellant. (See page 9l)
Counsel for the appellants took
a cue from the Anane case per
Ollennu JSC and from YENU vrs.
ASARF Suit No. 2810/86
unreported where Brobbey, J.A.
(as he then was) ordered a
survey plan to be made for the
resolution of conflicting claims
of title to a parcel of land and
counsel then suggested the
vacation of the judgment on
appeal herein and the retrial to
feature the survey plan of the
disputed land in the surrounding
circumstances of the cause of
action herein.
Counsel for the respondent saw
no merit in the appeal and
called for its dismissal with
speed. It was stoutly denied
that the identity of the
disputed land was not
established; no one, in
counsel's estimation, was left
in doubt as to the land claimed
by the respondent; no wonder
that the appellants raised no
question about the identity
thereof in the court below.
Counsel drew attention to the
description of the land claimed
by the respondent/ suitor in the
endorsement of the writ of
summons. He also adverted to the
adoption of the description in
paragraph 2 of the respondent's
Statement of Claim (at page 2 of
the record of appeal). The full
description reads:—
"A declaration of title to all
that piece or parcel of land
with cocoa trees thereon,
situate, lying at Asokore on
land commonly known and called
Owerekokrom, on Asokore Stool
land and bounded by the
properties of Kwasi Owusu, Kwasi
Dadaa, Yaw Darkwa and (the)
Mununkum and Yamoah Naama
Streams."
Counsel as well submitted that
the victorious respondent in the
court below swore in-chief to
facts similar to those asserted
in both the endorsement of the
writ of summons and the
statement of claim
aforementioned.
Counsel was categorical that the
adequacy of the description was
beyond doubt for all purposes;
the identity of the land claimed
by the respondent in the action
was/is patent to high heaven and
there was no basis for that
ground of appeal.
Poised for battle, counsel for
the respondent made brief
responses to two abandoned
grounds of appeal mentioned
above. Counsel referred us to
the evidence proffered by one
Yaw Agyei, PW3, who was said to
be the respondent's star
witness. PW3's crucial evidence
provided the solid prop for the
judgment of the Court below.
Incidentally, PW3 was a real
nephew and blood relation of the
6th appellant; it goes without
saying that this witness has a
huge—even monumental—stake (at
customary law in Ashanti) in his
uncle's proprietary interest.
PW3 swore that he purchased from
his uncle 20 oil palm trees
growing on the latter's land to
fell and tap or drill the sap
therefrom for his palm wine
industry. In the course of
operation, the witness
overstepped the firm boundary
between his uncle's extensive
parcel of land and the
respondent's so-called ancestral
land or landed heritage.
It was trespass, pure and
simple. PW3 was made to pay the
purchase price for each tree
felled on the respondent's land
in reparation. The 6th appellant
did not protest at nor interfere
with the resolution of the
problem at that time.
Counsel for the respondent
quoted section 26 of NRCD.323 as
follows:—
"26. Except as otherwise
provided by law, including a
rule of equity, when a party
has, by his own statement, act
or omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
such belief, the truth of that
thing shall be conclusively
presumed against that party or
his successors in interest in
any proceedings between that
party or his successors in
interest and such relying person
or his successors in interest."
By a necessary implication, a
case was being made that the
respondent had remained in the
firm belief that his title to
the land unto which PW3
trespassed with his palm wine
brewing operation was inviolable
and free from blemish.
Counsel accordingly invoked the
principle of estoppel by own
conduct provided in the law
fully set out above against the
appellants herein.
But more significantly, counsel
for the respondent pointed out
that the appellants, the 6th in
particular, sat in humble
silence when PW3 led evidence as
shown and they scarcely
challenged any part of the sworn
testimony. That, in Counsel's
view, spelt the doom of the
appellants' claim.
We think the single, most
decisive and most useful
question in the entire appeal is
whether the description of the
property claimed by the
respondent was vague or nebulous
and/or inadequate in the
judicial process. The question
can be answered on the facts
pleaded and the evidence
proffered.
The facts set out in the
endorsement of the respondent's
writ of summons and those
pleaded in the statement of
claim as well as evidence
offered in respondent's
testimony on Oath, shown
hereinabove, offered the
identity of the land in issue
for the various high points in
the judicial process such as the
enforcement of a judgment, the
enforcement of orders such as
interlocutory injunction and for
punishing those committing
contempt. It could give rise to
res judicata.
The description sufficed to
indicate all the corners of
respondent's property; it
located the land in Asokore
Stool land: it spelt out
boundaries and the owners
sharing them with the respondent
or features marking the
boundaries (i.e. streams). Of
course, measurements sounding in
feet, yards or meters and so on
were not offered or given;
compass or cardinal points were
conspicuously absent in the
identification of the land. No
survey plan was made available
for sketching out or outlining
the identity of the respondent's
claim in clear and unambiguous
term.
By and large, the simple and
straightforward, that is to say
unsophiscated, representation or
depiction of the respondent's
land claim, to us, was
sufficient or adequate, or both
for the enforcement of any
judgment or interlocutory order
like an injunction and for
purposes of punishing any person
in contempt of Court for
disobedience, for disrespect the
court into disdain and
disrepute.
So that the description of "the
property claim" in the case,
though simple and
straightforward and untouched by
sophiscation, fell within the
parameters of the principle,
settled on the case of Anane vrs.
Donkor (first cited above). We
approbate it.
We also agree that the
appellants were caught by the
law of estoppel as provided in
section 26 of NRCD. 323. It is
therefore not open to the
appellants—all six —to lay claim
to any part of the landed
property at Asokore in Ashanti
and fully identified by the
description in the endorsement
of the writ of summons
afore-mentioned.
We agree as well that the
judgment of the Court below was
well-founded, for it found that
the evidence led or adduced by
PW3 that passed unchallenged
corroborated the (land) claim
brought by the respondent before
the court below.
PW3's sworn testimony made the
boundary that he (PW3)
overstepped to commit trespass
with dire consequence a
notorious demarcation between
the contending parties within
popular or public notice and it
offered, in the result, a proof
of the respondent's claim of
land on the other side of the
notorious boundary on "the
preponderance of probabilities"
within the meaning of section 12
of Evidence Decree, 1975
(NRCD.323). Both the abandoned
grounds are therefore of no
account.
On balance, the judgment
appealed from emerges wholly
unscather and is accordingly
sustained in entirety. We
therefore firmly dismiss this
crumbled appeal on all the
grounds, abandoned or pursued.
K. TWENEBIA-KODUA
JUSTICE OF APPEAL
FARKYE, J.A.
I agree.
S.T. FARKYE
JUSTICE OF APPEAL
ASIAMA, J.A.
I also agree.
S.K. ASIAMAH
JUSTICE OF APPEAL
COUNSEL
Mr. A.G. Boadu—for
Defendants/Appellant.
Mr. Asirifi Asare—for Mr.
Asumadu Sekyi for
Plaintiff/Respondents. |
