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JUDGMENT
MRS. WOOD, J.A.:
In this case in both parties,
claiming the same piece of land
through their respective late
grandfathers, have prayed for
similar reliefs, namely
(a) declaration of title,
(b) damages for trespass,
(c) perpetual injunction
Additionally, the plaintiff
appellant sought for an order
that the defendant respondents,
who were substituted for their
father, the original defendant
who died in the course of the
proceedings, do at torn tenancy
to her or alternately she does
recover possession of the
disputed property from them.
The appellant, who instituted
the action in her capacity as
the customary successor to her
late father for herself and on
behalf of her brother, did not
describe the land claimed in
either her writ or the statement
of claim. What she did, and
which in my view was contrary to
the rules governing pleadings
was to attach a plan and mark it
as Exh A and allege that is the
disputed land.
Her case was simply that her
late grandfather, who was the
Linguist to the Nungua Chief,
Mantse Tawiah, acquired a usur
fructury title to a larger piece
of land and farmed on it with
the consent of the stool and its
elders. According to her, her
father subsequently inherited
the disputed land from his
father and continued farming
thereon. The respondent she
claimed, sometime ago trespassed
unto their land by putting up a
self-contained house on a
portion of their land. But a
subsequent arbitration adjudged
them owners of the disputed land
and warned them off the said
land. She was however compelled
to institute these proceedings
in protection of her family’s
right when much to her chagrin,
she was subsequently prevented
by the respondents from making
further developments on the land
they in turn inherited from
their father.
The respondent did not merely
deny all the material averments
on which the claim was founded,
but contended that it was rather
the appellant, who by erecting a
one bed roomed house on the
disputed land was guilty of
trespass since their late father
had as far back as 1965 been an
owner in possession and have
exercised various overt and
undisturbed acts of ownership
over it. Additionally, they
maintained the claim is (1)
statute barred and (2) the
appellant is estopped by laches
and acquiescence from
institutions this action.
The interesting matter is that
both parties are building an in
occupation on the land. In this
appeal based on as may as 14
grounds, the first of which is
the usual omnibus ground, “the
judgment is against the weight
of evidence”, the grounds, 3, 4
and 6 raises two pertinent
issues; namely,
(1) whether or not she led
evidence in proof of a valid
arbitration and
(2) if yes, was she then
entitled to institute this fresh
proceedings, when the same issue
of ownership to the disputed
land had already been disposed
of by the arbitration?
Undoubtedly, one of the critical
issues which fell for
determination from the
pleadings, was whether or not
there had been a valid
arbitration between their
predecessors over ownership of
the disputed land. The
appellants claim that there had
been such an arbitration and
more importantly her averment by
the paragraph "13f" of her
amended statement of claim that
“the arbitrators made an award
in favour of the plaintiffs
father and warned and
consequently further that she
was stopped by conduct and the
award the defendant off the
land”, from challenging
appellants title was flatly
denied by the respondents.
After reviewing the evidence led
by the appellant in proof of the
alleged arbitration, the trial
judge rightly in my view, but
albeit for the wrong reasons,
concluded “that the fact that
plaintiff has brought this
instant action presupposes that
no such arbitration look place.”
In other words he drew the
inference that no arbitration
had taken place from the fact of
the institution of this action.
While I would say that that line
of reasoning is faulty, I am
nevertheless not in agreement
with appellant counsel that
there is cogent evidence to
support of the appellants
assertion of a valid
arbitration.
Undoubtedly, the burden of
establishing that there has been
a valid arbitration lay on the
appellant who asserted the fact
and is relying on the award to
stop the respondent from
challenging her title to the
disputed property. See S.10 and
11 of the Evidence Decree, 1975
NRCD 323.
Again, the essential ingredients
of a valid arbitration has long
been settled in a long line of
cases notably, Budu V Caesar
1959 GLR 410; Donkor vrs Issifu
1963 GLR 418, Nyaasemhwe V
Affibiyesan 1977 1 GLR 27, and
Sulia vr Glavee 1991 1 GLR 194.
Unfortunately, the appellant did
not in her evidence take the
trouble to prove any of the
prerequisites of a valid
arbitration so clearly outlined
in the decided cases. But
perhaps the default is
understandable. By the paragraph
8 of the amended statement of
claim, the alleged arbitration
took place in her absence.
Consequently, she stood in no
position to depose to matters
outside her knowledge. But
certainly the same cannot be
said of the PW2, the only
alleged surviving arbitrator.
But, in all honesty it is very
doubtful whether he was indeed
an arbitrator. According to the
appellant, this only surviving
arbitrator is known as Okuwornu
Kwei, the present head of
family. But the PW2 gave his
name as Stephen Out Okey and we
have no explanation offered
about this marked inconsistency.
Even so, this man gave no
evidence of two important
matters: (1) a voluntary
submission or (2) a prior
agreement to be bound by the
award; two of the critical
ingredients which must be
present in any valid and
consequently binding
arbitration.
Another disturbing matter is
this. This witness’s testimony
does not point to a valid
arbitration. He testified that
money for drinks which were
allegedly served at the said
hearing was provided, as the law
would have expected not by the
parties to the arbitration, i.e.
the disputants, but by the
arbitrators themselves. In the
absence of clear evidence from
the appellant in proof of a
valid arbitration, I have no
option, but to conclude, as did
the trial judge, that no
arbitration (Kwaw v Awortwi
1989-90 1GLR 190 CA refers) nor
a building award has been
proved. It is because I find
none proved that the appellant
is entitled to institute this
present action. Therefore the
trial judges view that he could
relitigate the issue of
ownership is perfectly valid,
the clear position of the law
being that parties to a valid
arbitration are estopped from
relitigating the same issues in
a subsequent action. These
apart, it was absolutely
essential that she proved the
award, her contention being that
the respondent begged and was
allowed a continued stay in the
house and warned not to carry
out further developments on the
disputed land. Even so, I do
find that the evidence of the
appellant and her witnesses on
the award made, conflicting.
Whereas she contended that his
apology was accepted and he was
warned off the rest of the land,
his version was that he was
asked to remain in the house
until he found another house and
relocated to that place.
It would, under these
circumstances be manifestly
wrong to hold that he is bound
by any such an award of the
arbitrators, or even a
negotiated settlement since by
the paragraph 13K of her
statement of claim, she also
spoke of respondents being bound
by “Terms of understanding”
This takes us to the ground 7
namely
“The trial judge misdirected
himself and erred in law in
holding that the plaintiff
failed to prove her root of
title whereas the plaintiff
proved both a prior possession
by her grandfather and own
fathers family followed by
documentation in her name by the
Nungua stool after her father’s
death.”
It is trite learning that in
this instant action, the burden
of persuasion lay first on the
appellant and then the
respondent counterclaimant. Each
succeeded on the strength of his
or her own case. The learned
trial judge, rightly recognizing
the duty cast on the appellant
summed it up correctly as
follows:
“For plaintiff to succeed in
this action she must be able to
positively define her boundaries
and establish the identity of
the land.”
It is not only the case of
Kwabena V Atuahene 1981 GLR 136
relied on by the trial judge,
which laid down this
proposition, but the more recent
cases like Nyikplokpor v Agbodo
for 1987-1988 1 GLR 165,
reiterates the same principle.
This court unanimously speaking
through Abban JA (of blessed
memory) as he then was held as
follows:
“To succeed in an action for
declaration of title to land,
recovery of possession and for
injunction, the plaintiff must
establish by positive evidence
the identity and limits of the
land which he claimed.”
In that case, the court
specifically held that:
“No court of justice could be
expected to give a declaration
of title or recovery of
possession to a plaintiff in
respect of an area whose
boundaries were so uncertain.”
A more recent authority is
Yomervu v Awutu 1987 – 1988 1
GLR 9. This court, in defining
the duty cast on a claimant who
admits his opponent had land
adjoining his or hers said:
“The plaintiffs claim was
founded in trespass which was in
law a violation of his
possessory rights. And since he
had admitted that the defendants
had land adjoining to his, in
order to succeed it was
necessary to have described the
trespass area and the area in
his possession with clarity.”
Again, the fact that the
boundaries of a claimant are
clearly shown on a survey plan
does not relieve a claimant from
proving his boundaries by
credible evidence eg. calling
his boundary owners to
corroborate his claim as shown
on the survey plan. Thus in Badu
v Agbi 1972 2 GLR 238 CA, the
2nd plaintiff who failed to call
his northern boundary owner as a
witness lost the action, even
though his survey plan showed
the identity of the land
claimed.
The appellant had, per paragraph
6 of her statement of claim
averred that “her grandfather
and the defendant grandfather
abutted each other”, a fact the
respondent unequivocally
admitted.
Appellant however failed to call
a single boundary owner to prove
positively and with clarity her
land and the trespassed area.
Worse still, the court appointed
surveyor who drew a demarcated
composite plan of the area, by a
survey and super imposition of
the disputants plans, gave this
telling answer to a question put
to him under cross examination.
“Q. What the plaintiff is
claiming on the plan is
different from what she is
claiming the land.
A. Yes”.
Indeed a look at the composite
plan exh CE 1 shows that the
land claimed by the appellant
per her plan, is miles away from
the physical land she pointed
out to the surveyor as belonging
to her.
Again, her attempt to prove her
title by tendering the Exh B as
corroborative proof of her oral
assertion, proved her undoing.
Exh B turned out to be
inconsistent with and
contradictory of her mode of
acquisition as pleaded and as
testified to. So in short, she
failed to prove her root of
title, for it spoke of a
leasehold interest granted to
her by the Nungua stool from the
9th of April and at the yearly
rent of ¢ 600,000.
She was asked under
cross-examination
“Q. What is the basis of your
claim?
A. I want my land back.
Q. What authority do you have of
any in bringing this action?
A. The land belongs to my late
father and that is why I have
brought this action.
Q. What do you have to show that
the land belongs to your late
father?
A. I have a document to cover
it.
That document is the Exh B which
as I have shown is patently
inconsistent with her claim.
It does follow on her own
showing that she was not
entitled to succeed and the
learned trial judge was right in
denying her title to the
disputed property.
In this connection, I find that
grounds 8, 9 and 10, which are
inexonerably linked with the
ground 7, would not alter the
fortunes of the appellant.
The more pertinent and
self-explanatory ground states:
“(8) The court below erred by
holding that the registered
document that replaced the
earlier frustrated document,
displaced the plaintiffs pleaded
root of title whereas the law
clearly stated in Bruce v
Quarnor 1959 GLR was that a
subsequent conveyance might add
to but derogate from either
usufructury right or on express
prior customary grant.”
(9) The trial judge erred in law
in supporting that once a
document prepared for execution
by Chief of Nungua had been
frustrated from execution by the
said chief’s death, it was
impossible for a fresh document
to be prepared and executed in
the successor chiefs name.”
I would concede that since a
stool has perpetual succession,
the new Nungua chief could only
be entitled to execute a
conveyance in his name in
respect of the land in question.
But then, one would have thought
that narrative recitals in the
instrument, would have set the
records straight by the removed
of all doubts, and setting out
the facts inconsistencies and
contradictions. Admittedly
narrative recitals are not
generally strictly speaking
necessary, but they serve, (and
could have served) a useful
purpose in this instant case.
There being none in the Exh B,
it has resulted in her Exh,B
being found inconsistent with
her case as pleaded and the oral
evidence led.
I would not interfere with the
trial judges findings and
dismissal of her claim, which
was supported by the record.
On the facts, the respondent’s
counterclaimants were as
correctly found by the trial
judge entitled to relief (a) a
declaration of their possessory
title to the disputed land.
The reason being that
(1) they have demonstrated that
they have also been in
undisturbed possession of the
land since 1965.
Unlike their appellants, the
disputed land falls squarely
within their land as claimed for
their site plan (see the
composite plan Exh CR1). I have
already held they have not been
adjudged to be trespassers as
alleged by their appellant.
Contrary to the learned trial
judges finding they would also
be entitled to damages, though
in my view minimal, for the
trespass to the land. They are
also entitled to the order of
permanent injunction save that
persons claiming through her,
and who are already in
possession of parts of the
disputed land and in respect of
whom no order for recovery of
possession has been sought,
shall remain in such undisturbed
occupation.
I would in the circumstances
dismiss the appeal and subject
the orders in respect of the
respondent to the variation made
in this judgment.
G. T. WOOD
JUSTICE OF APPEAL
FARKYE, J.A:
I agree.
S. T. FARKYE
JUSTICE OF APPEAL
OMARI-SASU, J. A:
I also agree that the appeal be
dismissed.
K. OMARI-SASU
JUSTICE OF APPEAL. |
