|
Land - Rights
of ownership - Declaration of
title - Damages for trespass -
Recovery of possession -
Purchase and allotment -
Customarily gift – Capacity -
Whether or not the plaintiff has
been able to make a case upon
his or her testimony to entitle
him or her to be granted reliefs
upon his claim - Whether or not
the plaintiff’s case will
entitle him to relief in view of
the defendant’s evidence –
Whether or not the the plaintiff
having failed to make a case
from his testimony can rely on
the weakness in the case of the
defendant and ask for relief -
HEADNOTES
In this case,
the plaintiff who sued as
descendants and successors of
the syndicate of Krobo farmers
who purchased land from Kwabena
Agyakwa, sued the defendant for
virtually claiming the entire
land purchased by the syndicate
as belonging to his Uncle Kwesi
Ghartey. In pursuit of the
claim that the land belonged to
his late uncle, the defendant
was reputed to have brought onto
the land many well built men
from the northern parts of the
country. As a result, the
defendant caused many acts of
trespass, pillage, plunder and
wanton destruction of the
plaintiff’s farms and buildings
The defendant also claimed that
it was after the purchase of the
land by his uncle that a group
of Krobo farmers, led by the
parents of the plaintiffs
approached him to re-purchase
portion of the land from him.
The defendant therefore denied
the claims of the plaintiffs and
asserted that his uncle
performed overt acts of
ownership in respect of the land
and this was acknowledged by all
and sundry, the High Court,
delivered judgment in favour of
the plaintiffs in both cases. As
was to be expected of a fighter,
the defendant appealed to the
Court of Appeal and their case
was dismissed
HELD
In this
appeal, there is no doubt that
the plaintiff herein is a
daughter of Kwabena Agyakwa.
However, because of the system
of inheritance among the Akan
generally, which is matrilineal,
the plaintiff not being a
customary successor to the
estate of her father cannot
automatically succeed him.
However, the plaintiff in her
testimony stated that her father
gifted the portion of land in
dispute to his children. The
defendant did not deny the said
evidence and infact did not
cross-examine the plaintiff when
she testified that the land had
been gifted to her and her other
siblings by their father,
Kwabena Agyakwa. We accordingly
endorse the conclusion of the
Court of Appeal
The order for
recovery of possession granted
by the learned trial Judge in
favour of the plaintiff therein
is in our opinion a natural and
consequential order that flows
from the facts and findings made
by the trial court. Having so
ably upheld the declaration of
title in favour of the
plaintiffs, the Court of Appeal
had no option other than to
confirm the order of recovery of
possession.
In the
result, we dismiss the appeals
filed by the defendant herein in
the two consolidated suits, No
L81/92 and 20/92 respectively.
The appeals are accordingly
dismissed as being without any
merit whatsoever. We therefore
affirm the judgment of the Court
of Appeal, dated 3rd
April 2008 and by necessary
implication that of the trial
High Court, dated 21st
January, 2003.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
1975, NRCD 323,
CASES
REFERRED TO IN JUDGMENT
Nartey v
Mechanical Lloyd Assembly Plant
Ltd. [1987-88] 2 GLR 314 S.C
Odametey v
Clocuh [1989-90] 1 GLR 14
Kodilinye v
Odu [1935] 2 WACA 336
Adwubeng v
Domfeh [1996-1997] SCGLR 660
Adzraku v
Dzatagbo, High Court, Ho 11th
February, 1993.
Assemblies of
God Church, Ghana v Rev.
Ransford Obeng & 4 others suit
No. J4/7/2009, 3rd
February 2010
Effia Stool v
Fijai Stool [2001-2002] SCGLR
893
Wordie v
Awudu Bukari [1976] 2 GLR 271
C.A at 380
Ricketts v
Addo [1975] 2 GLR 158 at 166 C.A
Nartey v
Mechanical Lloyd Assembly Plant
Limited [1987-88] 2 GLR 314,
Odoi v
Hammond [1971] GLR C.A
Odametey v
Clocuh & Anr [1989-90] 1 GLR 14
Ebusuapanyin
Kwame Ohember & Anr vrs Nana
Obura Asankoma III and Anr suit
No. 39/2000 17th
July, 2009
Achoro v
Akanfela [1996-97] SCGLR 209,
holding 2
Doku v Doku
[1992-93] GBR 367
Koglex Ltd
(No.2) vrs Field [2000] SCGLR
175
Fosua & Adu
Poku v Dufie (Deceased) &
Adu-Poku Mensah [2009] SCLGR 310
BOOKS
REFERRED TO IN JUDGMENT
Gold Coast
Order No. 17 of 1936. Page 216
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE
JSC:
COUNSEL
ALBERT ADAARE
FOR APPELLANT.
ODAME ADUFU
FOR THE RESPONDENTS.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
JONES DOTSE
JSC:
This an
appeal by the
Defendant/Appellant/Appellant in
both consolidated suits,
hereafter referred to as the
defendant against the judgment
of the Court of Appeal, dated 3rd
April, 2008 in favour of the
Plaintiffs/Respondents/
Respondents in both cases,
hereafter referred to as the
plaintiffs.
The plaintiff
in Suit No. 81/92 is the
daughter of Odikro Kwabena
Agyakwa now deceased, who was
the leader of a group of farmers
who purchased land from the Akim
Abuakwa and Begoro stools. The
portion of land in respect of
which (his daughter) the
plaintiff herein instituted the
action is the portion of land
that was apportioned to her late
father. Portions of the land
which Odikro Kwabena Agyakwa
purchased with members of the
syndicate and which was
apportioned to him formed part
of the land that he later sold
to a group of Krobo farmers led
by one Kwesi Ghartey a.k.a Kwesi
Photo or Photo Kwesi. The
defendant herein is the
customary successor of the said
Kwesi Ghartey.
The
plaintiff’s in suit No.L20/92
are the children of members of
the syndicate of Krobo farmers
who purchased portions of the
land from Kwabena Agyakwa and in
turn apportioned the said land
to members of the group
including Kwesi Ghartey, who
facilitated same.
The allotment
to Kwesi Ghartey seems therefore
to be a just recompense for his
services in ensuring the
purchase of the land by the
Krobo farmers, whose parents are
the predecessors of the
plaintiffs herein.
GENESIS OF
THE ACTIONS
SUIT NO L
81/92
The
plaintiff, a surviving daughter
of Kwabena Agyakwa, claimed that
her late father and a group of
other farmers in or about 1924,
after the purchase of the
land
from the Akim Abuakwa and Begoro
stools, had his own portion of
land allotted to him as did
other members of the group.
After the
purchase
and allotment, Kwabena
Agyakwa was reported to have
sold portions of his land to a
group of Krobo farmers led by
Kwesi Ghartey.
The portions
of Kwabena Agyakwa’s land which
remained after the land
transactions between him and the
Krobo farmers were
customarily gifted by him to
his children. The plaintiff
therefore described the said
parcels of land as schedules A &
B.
On the other
hand, the defendant claimed that
his uncle the late Kwesi Ghartey
purchased a large parcel of land
comprising an acreage of about
1,052.52 of land from the
plaintiffs’ father, Odikro
Kwabena Agyakwa. The defendant
therefore claimed the entire
portion of land as belonging to
this late Uncle, Kwesi Ghartey.
Having therefore succeeded him,
the defendant entered the land
and brought onto it a lot of
farmers, reputed to have come
from the northern part of the
country. These people caused a
lot of discomfort, pillage and
plunder on the land that the
plaintiff and his brother, who
had since predeceased her,
initiated the action herein in
the High Court wherein they
claimed the following reliefs
against the defendant:
i.
Declaration of title
to the parcels of land described
in the schedules described as A
& B
ii.
Damages for trespass
iii.
Order for
recovery of possession
iv.
Order for account
v.
Order for perpetual injunction
SUIT NO 20/92
In this case,
the plaintiff who sued as
descendants and successors of
the syndicate of Krobo farmers
who purchased land from Kwabena
Agyakwa, sued the defendant for
virtually claiming the entire
land purchased by the syndicate
as belonging to his Uncle Kwesi
Ghartey.
In pursuit of
the claim that the land belonged
to his late uncle, the defendant
was reputed to have brought onto
the land many well built men
from the northern parts of the
country. As a result, the
defendant caused many acts of
trespass, pillage, plunder and
wanton destruction of the
plaintiff’s farms and buildings.
The plaintiff therefore claimed
the following as reliefs in the
suit before the High Court,
Koforidua.
i.
Declaration of title to the
parcel of land described therein
ii.
General and special damages for
trespass
iii.
Perpetual injunction against the
defendant
iv.
An order of account in respect
of proceeds from tenant farmers
on portions of the land which
the defendant has been
collecting.
On the
contrary, the defendant denied
the claims of the plaintiffs and
asserted that it was his late
uncle who bought the large
parcel of land encompassing
about 1,052.50 acres from
Kwabena Agyakwa in his personal
capacity and not as a leader of
any group of Krobo farmers.
The defendant
also claimed that it was after
the purchase of the land by his
uncle that a group of Krobo
farmers, led by the parents of
the plaintiffs approached him to
re-purchase portion of the land
from him.
The defendant
therefore denied the claims of
the plaintiffs and asserted that
his uncle performed overt acts
of ownership in respect of the
land and this was acknowledged
by all and sundry.
JUDGMENT BY
HIGH COURT
Both the
above two cases were
consolidated, and after an
exhaustive trial in which a
court appointed Surveyor
prepared a plan which he
tendered,
the High Court, Koforidua on 21st
January 2003 delivered judgment
in favour of the plaintiffs in
both cases.
After making
very important findings of fact
in favour of the plaintiff in
suit No. 81/92, the learned
trial Judge held thus:
“I noticed
that this suit was initially
commenced by two of Agyarkwa’s
children for and on behalf of
the other children of Agyarkwa.
Mrs. Agyarkwa testified that the
land was gifted to them by their
father. She was not
cross-examined or challenged on
this….
I accept the
evidence of the plaintiff and
their witnesses in this suit and
reject that of the defendant. I
find that the plaintiffs have
proved their claims by a
preponderance of the evidence
led in court and hold that they
are entitled to judgment on
their respective claims.”
i.
Accordingly, the learned trial
Judge declared the plaintiff and
her other siblings as being
entitled to the schedules of
land claimed as per the writ of
summons
ii.
The plaintiff was also declared
as being entitled to recover
possession of the land declared
as being their property.
iii.
The defendant was perpetually
restrained from having anything
to do whatsoever with the land.
iv.
In view of the order of special
damages that was granted the
plaintiff, the learned trial
Judge declined to grant the
order for accounts.
v.
All monies deposited with the
Registrar of the Court as
receiver and manager were
ordered to be paid to the
plaintiff.
SUIT NO 20/92
The learned
trial Judge entered judgment in
favour of the plaintiff in suit
No. 20/92 and held thus:
i.
I declare the plaintiffs’ and
their Krobo syndicates’ title to
all that parcel of land bounded
on the North by W. D. Ghartey’s
land now in possession of the
defendant, and on all other
sides by the properties of
Agyarkwa and company (now Mrs.
Aboa and company) as demarcated
in exhibit 2
ii.
¢5 million general damages for
trespass against defendant
iii.
Perpetual injunction restraining
the defendant, his agents,
assigns etc.
APPEAL TO
COURT OF APPEAL
As was to be
expected of a fighter, the
defendant appealed on many
grounds of appeal to the Court
of Appeal.
But like the
trial court, the Court of
Appeal, in a unanimous decision
on the 3rd day of
April 2008 dismissed the appeal
filed by the defendant.
Concluding
the judgment of the Court of
Appeal, Aryeetey JA (as he then
was) stated thus:
“For the
reasons given in this judgment I
am of the view that the
conclusions of the learned judge
in the court below should not be
disturbed. The appeal in respect
of the two consolidated cases
fails and it is accordingly
dismissed. The judgment of the
court below in the consolidated
cases, suit No. L 20/92 and suit
No. L 81/92 is affirmed”.
This is the
judgment that is on appeal to
the Supreme Court.
GROUNDS OF
APPEAL IN THE SUPREME COURT
SUIT NO.81/92
1.
The learned Judges of the Court
of Appeal erred when they held
affirming the holding of the
Court of Appeal (sic) that the
Plaintiff/Respondent/Respondent
had capacity to institute the
action against the
Defendant/Appellant/Appellant.
2.
The learned Judges of the Court
of Appeal erred in entering
judgment for the
Plaintiff/Respondent/Respondent
as she failed to prove title to
the land in dispute.
3.
The learned judges of the Court
of Appeal erred when they held
affirming the holding of the
learned trial judge that the
boundaries of the land owned by
the Ghartey (the predecessor of
the
Defendant/Appellant/Appellant)
are as shown in exhibit Z
(marked 1) and exhibit E
4.
The learned Judges of the Court
of Appeal erred when they made
an order for recovery of
possession of the disputed land
in favour of the Plaintiff/
Respondent/Respondent.
5.
Additional grounds will be filed
on the receipt of the record of
proceedings.
SUIT NO. L20
/92
1.
The learned Judges of the Court
of Appeal erred when they held
affirming the holding of the
learned trial judge, that on the
evidence the Krobo farmers
purchased the land jointly with
W.D. Ghartey.
2.
The learned Judges of the Court
of Appeal erred when they held,
affirming the decision of the
learned trial Judge, that the
boundaries of the land owned by
Ghartey (the appellants
predecessors) are as shown in
exhibit Z (marked 1) and exhibit
E.
3.
The learned judges of the Court
of Appeal erred in entering
judgment for the
Plaintiffs/Respondents/Respondents
as they failed to prove the land
in dispute.
4.
The learned judges of the Court
of Appeal erred when they held
affirming the holding of the
learned trial judge, that the
Defendant/Appellant/Appellant
had trespassed on
Plaintiff/Respondent
/respondent’s land when, on the
evidence on record, the
Respondent had clearly failed to
prove that title on the disputed
lands was vested in them or that
they had right to possession
superior to that of the
appellant.
5.
Additional grounds will be filed
on the receipt of record of
proceedings.
SUBMISSIONS
BEFORE SUPREME COURT
It should be
noted that no additional grounds
have been filed and the above
were the grounds in respect of
which learned Counsel filed
their respective statements of
case.
BY THE
DEFENDANT
The main
thrust of the submission of
learned counsel for the
defendant, Mr. Albert Adaare, is
that the Court of Appeal in
totality did not appreciate the
arguments made in support of the
defendants appeal. In that
regard, learned counsel for the
defendant stated in unequivocal
language that the learned
Justices of the Court of Appeal
did not understand the nature of
the case of the defendant. From
the statement of case of the
defendant, the following issues
stand out as the core arguments
proffered by the defendant
against the Court of Appeal
judgment.
1.
The Court of Appeal in
evaluating the evidence adduced
before the trial High Court
failed to apply the well
established principle of proof
in actions for declaration of
title to land as has been laid
down in sections 11 (4) and
12 of the
Evidence Act, 1975, NRCD 323,
and also in decided cases like:
a.
Nartey v Mechanical Lloyd
Assembly Plant Ltd. [1987-88] 2
GLR 314 S.C
and
b.
Odametey v Clocuh [1989-90] 1
GLR 14
at 28
Learned
Counsel for the defendant
submitted very forcefully that
the learned Justices of the
Court of Appeal in evaluating
the evidence of the defendant
applied an old principle of law
in the case of
Kodilinye v Odu [1935] 2 WACA
336 at 337 –
338 which is to the
effect that a plaintiff in an
action for declaration of title
to land had to succeed on the
strength of his own case and not
on the weakness of the
defendant’s case.
2.
Learned Counsel for the
defendant also submitted that
the Court of Appeal confused the
land transactions of the
predecessor of the defendant, W.
D. Ghartey with the predecessor
of the plaintiff Opanyin Kwabena
Agyakwa in suit No. 81/90. In
this respect, leaned Counsel for
the defendant submitted that
instead of appreciating the fact
that W. D. Ghartey had two
distinct transactions with
Opanyin Kwabena Agyarkwa, to wit
80 and 120 ropes of land
respectively, the Court of
Appeal failed to take these
transactions into account.
In this respect, learned counsel
for the defendant anchored his
submissions on exhibits 16 and
16 B to support his arguments.
By this confusion, which learned
counsel attributed to the
learned Justices of the Court of
Appeal, which according to
counsel led the Judges to
conclude that the land described
in schedule A in suit No. L
81/92 had been gifted to the
plaintiff therein by her father
and not purchased by the
defendant’s predecessor is not
borne out by the record of
appeal.
3.
Learned counsel for the
defendant submitted that on the
principle of “Nemo dat quod
non habet” the father of the
plaintiff in suit No. L 81/92,
Opanyin Kwabena Agyarkwa having
divested himself of all title in
the land had no interest left in
the land to have gifted to his
children as the trial court
found and which was confirmed by
the Court of Appeal.
Finally,
learned counsel for the
defendant anchored his
submission in respect of the
trial court’s rejection of
exhibit I and its confirmation
of same by the Court of Appeal
as erroneous and totally
unsupportable.
Learned
Counsel submitted that the basis
upon which the Court of Appeal
affirmed the decision to reject
exhibit I and rather use
exhibits Z and E are based on
speculation.
Based on the
above submissions, learned
counsel for the defendant prayed
this court to allow the present
appeal and give judgment in
favour of the defendant.
BY THE
PLAINTIFF’S
From the
arguments of learned Counsel for
the plaintiffs in suit No. L
20/92 and L81/92, the following
points of substance have been
made.
1.
Learned Counsel for the
plaintiff on the other hand
argued that the learned Justices
of the Court of Appeal assessed
the evidence of the parties
using the accepted principles on
the standard of proof on the
basis of the principle of
preponderance of probabilities
as is provided in sections 11
(4) and 12 of the Evidence Act,
1975 NRCD 323 and the
decision of Acquah JSC (as he
then was) in the case of
Adwubeng v Domfeh [1996-1997]
SCGLR 660 at 670 and
the unreported case of
Adzraku v Dzatagbo, High Court,
Ho dated 11th
February, 1993. Learned
Counsel for the plaintiff
therefore submitted that the
Court of Appeal properly applied
the correct principles of
evidence in evaluating the case
for the plaintiffs and
defendants.
2.
Leaned Counsel for the plaintiff
submitted that there is no
evidence on record to support
the contention of the defendant
that his predecessor had two
separate land transactions with
Opanyin Kwabena Agyarkwa.
Learned Counsel for the
plaintiff’s in both suits
therefore submitted that it was
only one land transaction that
was entered into by Kwesi
Ghartey and Kwabena Agyarkwa and
this is as follows:
There was only one land
transaction by Kwabena Agyakwa
to the Krobo Syndicate led by W.
D. Ghartey and that the
remaining portion of land of
Kwabena Agyakwa was the one
gifted to the children.
3.
Learned Counsel argued that,
since Kwabena Agyakwa did not
completely divest himself of all
the parcels of land he bought
from the Begoro stool as far
back as 1924 or thereabout, he
retained title in the remaining
portion of land that he
purchased. That meant that
Kwabena Agyakwa still had an
interest in the remaining
portions of land which he could
divest to his children as he
did. The principle of “Nemo
dat quod non habet” is thus
inapplicable in the
circumstances of this case.
Finally,
learned Counsel for the
plaintiff submitted that there
were really very cogent reasons
why exhibit I had to be
rejected. This is because,
having divested title in the
land as far back as 1924, or
thereabout to Kwabena Agyakwa &
Co. the Begoro Stool had no
interest left in the land to
divest in 1967 to W.D. Ghartey.
Therefore, it was palpably wrong
for the defendant’s predecessor,
Kwesi Ghartey, to have given
exhibit I to the successor of
the Begoro Chief to
authenticate the sale of land
whereas that same land had in
1924 been conveyed to Kwabena
Agyakwa and his company.
Counsel for
plaintiff submitted that, on a
proper application of the
principle of “Nemo dat quod
non habet” it will mean that
the Begoro Stool had no interest
left in the land to divest.
Therefore exhibit I which
purports to convey title in land
that had already been conveyed
and transferred to Kwabena
Agyakwa & Co. by the Begoro
Stool meant the Begoro stool had
no interest left to convey.
Counsel therefore submitted that
exhibit I was properly rejected.
Before we
proceed to deal with the issues
that need to be dealt with in
order to finally dispose of this
appeal, we feel bound to comment
on two issues namely:
1.
Use of inappropriate and
intemperate language by counsel
in their statements of case.
2.
The legal effect of the exhibits
tendered in this case and their
application and effect on the
outcome of this appeal.
USE OF
INAPPROPRIATE AND INTEMPERATE
LANGUAGE BY COUNSEL
We have times
without number complained about
the use of inappropriate,
intemperate, offensive and
insulting language by counsel in
their submissions before the
courts.
Ours is a
learned profession and this
demands a very high standard of
behavior not only in the
etiquette at the Bar, but also
in the use of language. Use of
language in this case finds
expression in the choice of
words by defendant’s counsel to
express opinions on the
judgments of the lower courts in
this appeal.
Secondly, it
also finds expression in the use
of words to express opinion on
the work of counsel on the other
side. What must be noted is
that, since the statement of
case is for the consumption of
this court, use of
inappropriate, insulting,
offensive and intemperate
language is an indictment and
sign of gross disrespect to the
court.
In the
instant appeal a few examples
from either side will suffice.
For example, learned counsel for
the defendant, Albert Adaare, on
page 9 of his statement of case
stated thus:-
“Their
Lordships in the Court of Appeal
confused the second
purchase transaction and the
dealings with the 80 ropes of
land initially bought by Ghartey
from Agyakwa”
Again on page
10 of the same statement,
learned counsel for the
defendant stated thus:-
“In respect
of suit No. L81/92, the errors
of their Lordships in the Court
of Appeal are even more
grievous”
The use of
very strong, inappropriate and
sometimes insulting language on
the part of learned Counsel for
the plaintiffs, Mr.
Asante-Ansong & Co. was more
prevalent and pronounced.
For example,
on page 4 of the statement of
case for the plaintiffs, para
13, it is stated thus:
“I submit
that my learned friend
unfortunately doctored the
evidence on record to give
him a leeway to attack the
Judges of Appeal Court”
Then on page
5, paragraph 18, learned Counsel
again wrote thus:-
“I submit
that my learned friend
for the appellant
disingenuously massaged the
evidence when he wrote
‘What the
plaintiff in suit No. 81/92 is
claiming as part of what she
alleges Agyakwa gifted to his
children, when infact she, Mrs.
Aboa, the plaintiff in L 81/92
witnessed the payment of the
balance of the purchase price
for this land to Opanin Berkoe
her father’s successor by
Ghartey.’
On page 10 of
the statement of case, learned
counsel for the plaintiff states
again as follows:-
“My learned
friend is either too ill at
ease in telling the truth or he
totally misapprehended the
evidence even that of his
own client, the appellant”.
Finally, this
is what learned counsel for the
plaintiffs stated in concluding
the use of strong and
intemperate language thus:-
“Moreover if
my learned friend had read
the record properly he would
have found that what Keelson
said in cross examination on
exhibit 17 was …”
One need not
be an Angel to conclude that the
words referred to supra used by
both learned counsel are strong,
inappropriate and intemperate
language.
The Supreme
Court, speaking with one voice
through me in the recent
unreported case of
Assemblies of God Church, Ghana
v Rev. Ransford Obeng & 4 others
suit No. J4/7/2009, dated 3rd
February 2010 stated on
abusive and insulting language
by counsel as follows:-
“We will
henceforth urge all learned
counsel involved in preparation
of statement of case for their
clients especially at the
Supreme court level to be
mindful of the following:-
Avoid abusive
and insulting language not
suitable for use in a court of
law such as this Supreme Court.
It is to be noted that learned
counsel can still make their
points and arguments very
strongly without the use of
language that is sometimes
associated with persons in some
other vocations. Not so however
in a court of law.”
Even though
this is not a judgment, they are
proceedings which have been
processed and put before the
highest Court of the land, the
Supreme Court. We therefore find
the caution and admonition by
the Supreme Court in the case of
Effia Stool v Fijai Stool
[2001-2002] SCGLR 893
where the court deprecated the
use of offensive language in the
writing of judgments and rulings
by Judges and Adjudicators as
appropriate and applicable to
counsel as well. Bamford Addo
JSC (as she then was), speaking
on behalf of the Supreme Court
in the above case stated as
follows:-
It should be
remembered by Judges and
adjudicators that language is
their working tool from which is
deduced their intention and
reason for their findings,
judgments and rulings. For this
reason, it is important to use
words advisedly and to resort to
judicial language whenever
possible. Further, their choice
of words must be clearly
appropriate and
non-controversial so as to avoid
charges of neglect of duty to
evaluate evidence properly, as
has happened in this case, as
well as charges of unfairness
and bias which may be wrong and
non-existent. The use of
prudent, temperate and judicious
language by Judges will no doubt
prevent complaints of the nature
raised in the grounds of
appeal”.
In a recent
address to Judges and
Magistrates of Ghana, on 1st
October 2009, Her Ladyship the
Chief Justice also had occasion
to admonish Judges and
Magistrates on the need to use
decent language in their
judgments. She stated thus:-
“But perhaps
the worst damage we inflict on
ourselves is when we use
unsavory language in our
judgments to attack fellow
judges when we find ourselves in
disagreement with them. I have
had occasion to speak about this
unprofessional behaviour,
conduct which in my view, smacks
of total lack of humility, but
it does appear some of us are
unrepentant. It is difficult to
fathom why a judge would choose
to treat his or her colleague in
that manner, seeing that none of
us can claim infallibility, and
for all we know the one
castigating the other may rather
be in error.”
The combined
effect of all these is that,
Lawyers, just like Judges and
Magistrates should endeavour at
all times (especially in all
their pleadings and processes
filed before the courts and in
their viva voce submissions in
court) to use words
advisedly and use words that are
very decent and appropriate as
the circumstances demand. A
lawyer can still make his point
very forcefully with the best of
meanings without the use of
offensive, intemperate, clumsy
and insulting language.
In our
opinion, a lawyer who measures
up to the above standards is one
that lives up to the expectation
as a learned friend.
A word of
caution, advice and admonition
should equally go to all lawyers
who take the privilege of
venting their frustration in the
loss of cases in the lower
courts on the Judges and
Magistrates of those courts with
the use of harsh, offensive,
intemperate and inappropriate
language in the formulation of
their grounds of appeal and
statement of cases to desist
from such conduct. This court
clearly frowns upon and
deprecates such conduct as not
only inappropriate and
unprofessional but also
unlearned and ungentlemanly. It
is expected that lawyers will
henceforth take note and desist
from the above conduct as has
been illustrated in this appeal.
EVALUATION OF
EXHIBITS
1.
Exhibit A
This is an
exhibit that was tendered by the
plaintiff Mrs. Christiana Edith
Aboa in suit No. 81/92 on 23rd
February, 2001. It is an extract
from the National Archives of
Ghana and it is
Gold
Coast Order No. 17 of 1936. Page
216 Area R of this exhibit
reads as follows:-
Name of Right
Holder: Kwabena Agyakwa
Address:
Mampong
Right:
Ownership of land, Area R on
plan, 1710 acres (exclusive of
mining and timber rights) on
Akim Abuakwa land.
Extent:
Area R, – 1710 acres
From the
above exhibit, it is clear that
the father of the plaintiff
bought the land from the Akim
Abuakwa stool in 1924 or
thereabout.
2.
Exhibit B
This exhibit
is significant in many respects.
In the first place, the
plaintiff testified that after
the purchase of the land by her
father Kwabena Agyakwa in 1924,
the land in the area was
declared a forest reserve in
1928, that is the Worobong
Forest Reserve (Akim Abuakwa
Portion). After the
hearings of various claims made
by the interested claimants, the
Reserve Settlement Commissioner,
His Worship Christopher Herbert
Cooke, on the 11th of
March, 1953 made the following
orders on page 58 of the exhibit
in respect of land belonging to
the plaintiff’s father:-
“At Mr.
Beeton’s enquiry, there were
some fifteen sets of claimants
whose claims to have purchased
land from Akim Abuakwa were
allowed. Two of these namely,
Tetteh Kwaku Kwao and Tetteh
Kwaku Adjowee mentioned above,
were successful in their appeal
to the West African Court of
Appeal, by whose orders their
lands were excluded from the
area of the proposed Reserve.
As a result of the subsequent
revision of the boundaries of
the Reserve, the lands of seven
more sets of claimants have now
been totally excluded from the
proposed Reserve, namely:-
1.
Tei Kassaw and Asare Kwao
2.
Nelson Darko
3.
Kwasi Bodua Yohuno, Successor of
Okyeame Kwaku Yohuno
4.
Narh Adjebeng
5.
Kwabena Agyakwa
6.
Kwaku Larbi
7.
Tetteh Kwaku Carpenter”
It is
therefore significant to note
that, as at 1952, when the
enquiries into the Worobong
Forest Reserve commenced,
Kwabena Agyakwa, the father and
predecessor of the plaintiff in
suit L81/92 was firmly ensconced
upon the land. The enquiry
report and judgment validated
his
rights of ownership and
excluded same from the Forest
Reserve. This in our view is a
significant recognition of an
overt act of ownership in
respect of which sight should
not be lost.
This is
especially so if one considers
the commencement year of the
enquiry 1952 and the date of the
report and judgment, 11th
March, 1953. Kwesi Ghartey, the
predecessor of the defendant was
conspicuously absent in all the
above proceedings, even though
he was alleged to have been
present on the land.
3.
Exhibit C
This exhibit
relates to the judgment in the
transferred suit No. L 3/1956
dated 21st day of
May, 1962 before Ollennu J,
(as he then was) in a case
intitutled
1.
Nana Amoako Atta IV –
substituted for Nana Ofori Atta
II – Okyenhene, Kibi, Akim
Abuakwa
2.
Benkumhene Nana Antwi Awuah III
substituted for Benkumhene Nana
Antwi Awuah II of Begoro, Akim
Abuakwa -
Plaintiffs
Bafour Kwabena Agyakwa Odikro of
Onuku, near Begoro for and on
behalf of himself and 24 others
commonly known as the Agyakwa
Company of Mampong Akwapim
-Co-Plaintiffs
Vrs
1.
Nana Osei Kofi II Ohene of Kwahu
Tafo
2.
Nana Kwabena Adakwa Ohene of
Bepong
3.
Odikro Dankwa of Worobong, in
the Kwahu Stool -
Defendants
4.
Nana Akuamoa Ampong II
substituted for Nana
Boateng Akuamoa
VII
- Co-Defendant
The plaintiff
in explaining the reason for the
tendering of this document
stated that, after the enquiry
report in exhibit B, her father
shared the land to members of
his group with whom he had
purchased the land. After the
sharing of the land, the
plaintiff testified that, her
father sold a portion of the
land to a group of Krobo farmers
at a cost of £2,000. The names
of the Krobo farmers were given
as follows:-
i.
Daniel Otieku
ii.
Odonkor Appiah
iii.
Paddy Agbor
iv.
Dikye Kofi Wayo
v.
Awo Tei Amoah and
vi.
Osei Kakri
According to
the plaintiff these Krobo
farmers were led by one Kwesi
Photo aka Kwesi Ghartey, the
defendant’s predecessor, who
acted as interpreter between her
Twi speaking father and the
Krobo farmers. She gave the
expanse of land sold by her
father to the Krobo farmers as
80 ropes at the base and 40
ropes at the side.
According to
the plaintiff, her late father
performed various overt acts of
ownership on the land to wit,
building of houses and
establishment of a village,
planted cocoa, plantain and a
host of food crops.
However, when
portions of the land were
released after the Worobong
Forest Reserve Enquiry, because
it was on the border of the
Kwahu State, a host of Kwahu
farmers invaded the land and
committed acts of trepass.
As a result,
the suit in respect of which
judgment in exhibit C was given
was commenced in the High Court,
Accra by the stools of Akim
Abuakwa and Begoro respectively
against the Kwahu Stool.
However, as plaintiff’s father
and the other farmers had by
then firmly settled on the land,
they had to join the suit as
co-plaintiff.
It is
significant to note that
judgment in exhibit C was in
favour of the plaintiff therein
and the co-plaintiff who was the
plaintiff’s father, Kwabena
Agyakwa in respect of:-
i.
Declaration that the boundary
fixed as per a survey map is the
boundary between the stool lands
of Akim Abuakwa and the stool
lands of Kwahu
ii.
Recovery of possession and
ejectment of the defendants and
co-defendants therein from the
land
iii.
£2,000 special damages for
trespass
iv.
Injunction restraining the
defendants and co-defendants
v.
Accounts of mesne profits and
cost
Another
significant thing about exhibit
C is that, even though the
defendant’s predecessor Kwesi
Ghartey was visibly around, he
was neither a party to the suit
nor called as a witness by any
of the contesting stools
therein. This therefore means
that Kwesi Ghartey did not
appear in any of the enquiries
in exhibit B and the proceedings
in exhibit C. This then creates
a very big doubt as to whether
the claims by the defendant as
to the extent of land holding
the said Kwesi Ghartey was
reputed to have owned before his
death in 1975 or thereabout is
sustainable.
5.
Exhibit E
This exhibit
is a plan of the land that was
prepared by a licensed Surveyor,
Anin-Ayeko at the instance of
the then Eastern Regional
Commander, Colonel Takyi. The
title of the plan reads thus:-
“Showing the
property of Opanyin Kwabena
Agyakwa & Company situate at
Akwamu Kotoku, Begoro Area
2040.60 acres.”
The
Boundaries of land as indicated
and shown on the plan are as
follows:-
On one side by Kwaku Larbi & Co.
On another
side by Begoro Stool.
On another
side by Adjabeng & Co, Kwaku
Yohuno and Tettey Kwaku Adjiwe
and
On the last
side by Kwahu stool land
The date of
the plan is 1st
August 1976, and was admitted
into evidence without objection
on 20th July 2001.
According to P.W.3 who tendered
exhibit E, the defendant’s
predecessor Kwesi Ghartey took
P.W.3 round his land and
indicated to him the boundaries
of the land.
On exhibit E,
it is clear that the said Kwesi
Ghartey’s land is No. 7 and the
features therein are:
1.
Ghartey’s Village
2.
Concrete pillar marked W. D.
Ghartey
3.
Broken concrete pillar and
4.
Deduakro village
It should
also be noted that, apart from
Kwabena Agyakwa whose land was
also delineated on the said plan
as No I, all the Krobo farmers
whose children or descendants
have taken action against the
defendant in suit No. L 20/92
all have their parcels of land
clearly delineated on the land
in exhibit E.
It should
also be noted that in all, about
127 farmers were indentified at
the time of the preparation of
the plan in early 1975 as being
present on the land.
It should
also be noted that PW3 knew
Kwesi Ghartey long ago in the
1950’s and in fact was reputed
to have prepared exhibit I,
which is a plan of Kwesi
Ghartey’s land which was
accordingly tendered through
him.
That being
the case, it is clear that PW3
with his prior knowledge of
Kwesi Ghartey and the land,
should be considered as having
performed his job as a
professional.
In view of
the relationship of exhibit 1
with exhibit E, we will tie it
up with a discussion so that the
two will follow a sequence.
Exhibit I –
Tendered by the defendant
through PW3
1.
The first significant thing of
substance about exhibit (one) I
is the heading. It is headed
thus:
”Plan of Land The Property of
Mr. W. D. Ghartey of Winneba &
Co, situates at Akwan Kotoku on
Akim Begro (sic) Stool land,
Akim Abuakwa District Shewn
edged Pink Area 1052.50 acres or
1.645 sq miles”.
What is
significant is the description
of “W. D. Ghartey & Co”.
who and who are the
company that has been used to
denote the names of the persons
who own the land covered by the
plan?
Is this an
admission of the fact that
indeed the group of Krobo
farmers, actually requested W.
D. Ghartey to lead them in their
land purchase transactions with
Kwabena Agyakwa?
It should
also be noted that the
plaintiffs in suit No. 20/92 are
the descendants or children of
the original Krobo farmers who
purchased land from Kwabena
Agyakwa.
2.
The second substantial point of
significance about exhibit (one)
I is the fact that it is signed
by Nana Begorohene, Antwi Awuah
III dated 6th
February 1967.
This is a
serious misnomer. The undisputed
fact is that, Kwabena Agyakwa &
Co. obtained their grant of land
from the Begoro and Akim Abuakwa
stools in or about 1924.
At the time,
the Chief of Begoro was Nana
Antwi Awua II and the Okyenhene
was Nana Ofori Atta II.
The above
were the principal characters at
the time that Kwabena Agyakwa &
Co. purchased the parcels of
land from the respective stools.
For example,
if one refers to exhibit B, the
Worobong Forest Reserve Enquiry
report, it is clear that Nana
Antwi Awua II the chief of
Begoro was the person who
appeared before the Enquiry
proceedings and confirmed the
status of Kwabena Agyakwa and
the other purchasers of land
from them.
Again, if one
refers to Exhibit C, it is clear
that it was Nana Ofori Atta II
and Nana Antwi Awuah II who
together with Kwabena Agyakwa
commenced the action in the High
Court against the trespassers
from the Kwahu Stool.
It was only
after the death of the two
chiefs that they were
substituted by Nana Amoako Atta
IV for Nana Ofori Atta II and
Nana Antwi Awuah III for Nana
Antwi Awuah II.
A very
significant point is that, the
portions of land in dispute, and
indeed covered in this exhibit
(one) 1 had long been divested
by the Akim Abuakwa and Begoro
stools.
There was
therefore no interest and title
left in those particular parcels
of land for the chief of Begoro,
Nana Antwi Awua III to be
conveying to W. D. Ghartey & Co.
on the plan as at 6th
February, 1967.
What should
be noted is that the land had
already been conveyed to Kwabena
Agyakwa & Co., and the two
stools had confirmed the said
conveyance by their support of
Kwabena Agyakwa’s title to the
parcels of land in both exhibits
B and C.
It therefore
follows that Nana Antwi Awuah
III did not have any title in
the purported conveyance he
seemed to be conveying to W. D.
Ghartey & Co. The principle of
nemo dat quod non habet
will therefore apply in this
case to further discredit and
support the reason why the court
rejected exhibit I.
Indeed, as
was held by the Court of Appeal
in
Wordie v Awudu Bukari [1976] 2
GLR 271 C.A at 380,
applying the principle of
nemo dat quod non habet in
similar circumstances:-
“It follows
that, although the conveyance
the first appellant took from
the Osu stool is valid so far as
the necessary legal formalities
are concerned, yet it conveyed
nothing because the Osu Stool
had no land in the area in
dispute on the maxim nemo dat
quod non habet. The first
appellant cannot therefore
legally rely on exhibit C the
conveyance from the Osu stool
which was a party to the
consolidated suit before
Jackson.”
In the
instant case, since the Begoro
and Akim Abuakwa Stools had
already divested themselves of
title in the very parcel of land
to Kwabena Agyakwa, any attempt
by W. D. Ghartey, the
defendant’s predecessor to
obtain a conveyance and secure
validity for his document
exhibit (one) 1 cannot hold
since there was no interest or
title left for them to convey.
It can thus
be safely concluded that, the
principle nemo dat quod non
habet applies whenever an
owner of land who had previously
divested himself of title in the
land previously owned by him to
another person, attempts by a
subsequent transaction to convey
title to the new person in
respect of the same land cannot
be valid. This is because an
owner of land can only convey
what he owns, and having already
divested himself of title, the
new occupant of the Begoro stool
Nana Antwi Awuah III cannot
revoke what his predecessor had
done. Exhibit I is therefore a
worthless document.
With the
above, we are of the considered
opinion that exhibit I has no
evidential value capable of any
consideration. The trial court
and the Court of Appeal were
therefore right by not relying
on it
Exhibits F
and 18
Both exhibits
F and 18 relate to series of
minutes taken at meetings
convened at the instance of the
Eastern Regional Commissioners
or Ministers to solve the
worsening security problems
arising from the land disputes
touching and concerning the
lands in dispute.
These
exhibits are significant in the
sense that they give a
historical background to the
plan prepared at the instance of
the Regional Minister Colonel
Takyi and tendered in evidence
as exhibit E.
Exhibit 18 on
the other hand is significant in
the sense that it confirms the
following positions:-
1.
That it was Kwabena Agyarkwa and
members of his company who
bought land from the Akim
Abuakwa and Begoro stools.
2.
Kwabena Agyakwa on his part sold
portions of the land to W. D
Ghartey and the Krobo farmers.
3.
W. D. Ghartey never bought land
from the Akim Abuakwa or Begoro
stool directly.
4.
There was the admission of the
presence of a large number of
Zabrama or people of northern
origin on the disputed land.
5.
There were series of acts of
trespass, plunder, pillage and
lawlessness on portions of land
occupied by the plaintiff’s
herein by third parties
introduced onto the land by the
defendant.
6.
These acts of insecurity
received the serious attention
of the Regional Ministers for
the Eastern Region
7.
The persons reputed to be
working for the defendant herein
alone number close to about 144
as at 19th August,
1977.
As a matter
of fact, DW2 Kwabena Osei, in
answers to questions under
cross-examination stated that
defendant had about 74 Grunshie
farmers on the land, and not
Zabrama people. This in our view
supports a material averment of
the plaintiffs, in that, the
defendant brought people of
northern origin who committed
acts of trespass on the disputed
land. It is like defendant’s
witness, supporting plaintiff’s
case.
Exhibit 2
This is the
Letters of Administration
granted the defendant in respect
of the Estate of his Uncle
William David Ghartey. From this
exhibit, it is clear that W. D.
Ghartey died on the 1st
day of March 1975 and that the
defendant then Capt. John Kwesi
Keelson had been appointed as
the Administrator of the Estate
of W. D. Ghartey with effect
from 18th November,
1975.
It is
therefore clear that the said
defendant has the requisite
capacity so far as all matters
concerning the estate of W. D.
Ghartey are concerned.
For a very
long time, many litigants and
counsel have taken the view that
Letters of Administration are
procured only to support and
validate their capacity. That
might very well be the case.
However, there is also a
declaration of the movable and
immoveable properties of the
deceased Intestate, which is a
key ingredient of a Letters of
Administration Certificate.
In the
instant case, it is boldly
written on exhibit 2, that the
net worth of the entire assets
of W. D Ghartey as was sworn to
by the defendant which qualified
him and enabled him to obtain
the Letters of Administration is
under ¢2,103.00 (Two Thousand,
One Hundred and three cedis) as
at 18th November,
1975.
Indeed, if as
is stated by the defendant that
W. D. Ghartey left a total of
1052.50 acres of land including
several other assets then the
amount of ¢2,103.00 as the net
worth of the deceased W. D.
Ghartey is woefully inadequate,
and or misleading.
It should be
noted that, courts of law should
always evaluate the worth of a
deceased’s estate whenever a
dispute arises as to the assets
of the deceased person when he
was alive from the depositions
sworn to before the grant of an
L/A. If indeed W. D. Ghartey had
land to the size of 1052.50
acres, then assuming an acre of
land is conservatively put at
two cedis (¢2.00) then the total
acreage will be valued at ¢2104.
That will therefore mean that,
W. D. Ghartey did not have any
other assets, like houses,
furniture, household chattels,
dresses, shoes, clothes,
jewellery, farms, bank accounts
etc.
From our
assessment of the value which
the defendant himself put on the
worth of his uncle, it is clear
that he did not, and could not
be the owner of the 1052.50
acres of land that he was
reputed to have owned.
Persons
preparing legal documents for
deceased persons like letters of
administration should be
circumspect in ensuring that
they give an accurate, detailed
account of all the particulars
required. This is because a
legal document like letters of
administration must be taken at
their face value not only for
conferment of capacity but also
as the worth of the person whose
intestate properties are in
dispute. Using the above
principle, the defendant has an
uphill task in convincing this
court that his case must be
accepted in place of the
plaintiff’s case.
It should be
noted that, irrespective of the
discrepancy in the total worth
of the assets stated in exhibit
2 there are other cogent pieces
of evidence on record why the
plaintiff’s cases are to be
accepted, in preference to the
defendant’s case.
Exhibit Z
This is the
survey plan that was ordered by
the court and was eventually
tendered by C.W.1, Yaw Aboagye
Kyei who at all material times
worked in the Regional office of
the Survey Department in
Koforidua. There is no doubt
that the said C. W. I, is really
competent and has all the
requisite qualifications as a
Surveyor. He accordingly
tendered a survey plan of the
land, marked as exhibit Z on
19th September, 2000 before the
learned trial Judge Acquaye J,
(as he then was).
The judgment
of the learned trial Judge,
which was confirmed by the Court
of Appeal in relation to exhibit
Z, must be understood in proper
context. What it meant is that
the defendant, in indicating the
features and the land size of
his land, used the same method
he applied when he procured the
plan prepared and tendered as
exhibit I (one). As has already
been graphically discussed and
analyzed, exhibit I has been
torn into pieces and has no
legitimacy to stand on its own.
If therefore,
the defendant in giving
instructions to C.W.I towards
the preparation of exhibit Z
used the same criteria, then it
follows that for the same
reasons exhibit Z must be
rejected for lack of credibility
in so far as it relates to
defendant’s portion of the land.
What must be noted is that,
Survey plans generally are
prepared using features that are
credible and prominent and based
on overwhelming overt acts of
ownership. These include but are
not limited to corner pillars,
natural or original boundary
features like Ntome trees where
these are applicable, anthills,
streams, rivers, ruined
villages, sites of some trees
specifically planted to indicate
human habitation like coconut,
mango, palm trees, mahogany,
citrus, etc, fetish grove or
shrines, farms or farmsteads,
and credible boundary neighbours
to correspond with the
description of the land given in
the case
In the
instant appeal, the defendant
called D.W.I Kwame Ghartey a
stepson of Kwesi Ghartey who
lived and worked with him on the
land in dispute. From the
testimony of this witness, it is
clear that the land upon which
defendants predecessor owned,
lived and worked upon is no more
than 100 ropes.
This piece of
evidence is clearly inconsistent
with the land size that the
defendant has claimed. The
matter has been made worse for
the defendant, because he
claimed it was DWI and another
nephew of his uncle, called Kow
Pereba Ansah who showed him
portions of his uncle’s land.
This is exactly what he said in
his evidence in chief
“After my
uncle’s death in 1975, I first
went on the land in April 1975.
I went there to inspect the
general area of my uncle’s
immoveable properties in the
Miaso area. It was my uncle’s
son and his nephew call Kow
Pereba Ansah who was staying
with him. The son was called
Kwame Ghartey but is now staying
at Abosso in the Fanteakwa
District. Ansah is at Winneba
now. After I had been shown the
boundaries of the land I went
back to Accra and later started
working on the land by employing
labourers to assist me.”
It is
therefore clear that the
defendant cannot claim land more
than the persons who showed him
the land claimed Kwesi Ghartey
purchased.
There is
sufficient justification for
both the trial court and the
Court of Appeal rejecting the
land as was claimed by the
defendant in both exhibits Z and
I respectively.
We are
therefore of the considered view
that, in construing the
probative value of a survey
plan, apart from the features
which the court might take into
consideration, pieces of
material evidence, like
testimonies of witnesses about
their knowledge of the extent of
land and its possible effect on
the instructions given to the
Surveyor are indicators which
should not be taken lightly. In
the instant case, such evidence
coming as it were from the
defendant and confirmed by DWI
have been very effective in
reducing the credibility of the
defendant’s assertion that his
uncle purchased 1052.50 acres of
land from Kwabena Agyakwa.
Exhibits 3-17
These
exhibits undeniably are purchase
receipts, tendered by the
defendant as proof of purchase
of land by his uncle Kwesi
Ghartey from Kwabena Agyakwa on
the one part. On the second
part, are also receipts
indicating that kwesi Ghartey
sold land to some Krobo farmers.
What we have
observed in the writings on most
of these receipts is that they
all appear to be in the same
handwriting. Indeed if the
writings on exhibit 17 are also
taken into consideration against
the background that it is
reputed to be a note book kept
and belonging to Kwesi Ghartey,
then there is no doubt that he
is the author of the writings in
exhibits 3 – 16B.
The second
observation we wish to make is
that, the said receipts do not
specifically identify the
transactions to any parcel of
land. It is a desirable practice
for receipts involving
transactions touching land to
specifically refer to the land
and perhaps a description of
same. The absence of particulars
of the description of the land
transaction on the receipts does
not negate or nullify the said
transactions. It only casts
doubts when in this case, the
defendant is claiming that Kwesi
Ghartey by those receipts
purchased 1052.50 acres of land
from Kwabena Agyakwa. The
absence of the extent of land so
purchased in the circumstances
becomes very crucial.
Thirdly, in a
significant number of cases and
for example, exhibits 4, 5, 6,
7,8,9,11,13 we observe that the
transactions were witnessed by
some persons. Prominent among
these persons are, Osei kakri,
Odonkor Appiah, Yaw Tutu and
Tetteh Sosime. Osei Kakri and
Odonkor Appiah no doubt are the
original Krobo farmers reputed
to have purchased the land in a
syndicate from Kwabena Agyakwa.
In view of
all the above observations, the
findings of the learned trial
judge which were confirmed and
explained by the Court of Appeal
in their judgment when they
stated per Aryeetey JA (as he
then was) is very revealing as
follows:-
“At page 2 of
exhibit 17 on the left side the
five payments for the total
price of the 80 ropes of land
which Ghartey purchased from
Okyeame Agyakwa are recorded and
the five recorded payments
reflect five of the receipts
which the defendant tendered in
evidence. These are exhibits 3,
4, 5, 6 and 8 which are at pages
422, 423, and 424 respectively
of the record of appeal.
The five
receipts relate to the completed
payment of the sale transaction
recorded at page 2 of exhibit
17. Therefore they could not be
related to sale transaction,
payment for which continued
after the death of Okyeame
Ghartey.
None of the
five receipts I have referred to
was witnessed by the plaintiff’s
predecessors or any one else.
That is in sharp contrast with
the remaining receipts which
were witnessed by others
including some of the
predecessors of the plaintiffs.
That of course lends support to
the plaintiff’s stand that when
payments were made to Agyakwa on
behalf of the plaintiff’s
predecessors there were
witnesses who were represented
on the receipt. I am of the view
therefore that the learned trial
judge was right when he came to
the conclusion that it was the
predecessors of the plaintiffs
who purchased the land on which
they carried out their farming
operations and gave a portion of
it to the defendant’s
predecessor, Ghartey.
From the
testimonies of the two
surveyors, CW1 and PW3 who were
invited under different
circumstances to survey the land
in dispute we are left in no
doubt that the seven portions of
the land which the six
predecessors of the plaintiffs
and the one predecessor of the
defendant occupied after the
land had been shared among them
were clearly demarcated. There
is also the evidence that the
seven occupants of the various
portions of the land built
houses on the land and all of
them lived in harmony until the
death of Ghartey and the arrival
of the defendant on the scene.”
We associate
and agree with the conclusions
reached by the Court of Appeal
on the above exhibits save for
the following clarification.
The only
exception we wish to make is
that, we in this court have had
the benefit of the original
exhibits, and we have
accordingly found out that
exhibits 4, 5 and 6 were infact
witnessed by predecessors of the
plaintiffs in L20/92. This has
re-emphasised the conclusions
reached by the Court of Appeal.
As a matter
of fact, the witness column is
at the back of the original
receipts, which unfortunately
were not re-produced in the
photo copies that were made and
included in the appeal record.
Save for the
above correction, since we agree
with the said conclusions, that
will end our discussions on the
exhibits used and tendered
during the trial.
THE GROUNDS
OF APPEAL
We have in a
significant manner already dealt
with the grounds of appeal in
our discussions, comments, and
analysis of the exhibits
tendered in this case. We will
therefore deal briefly with all
the grounds of appeal in the
manner in which learned counsel
for the defendant argued them.
The defendant
raised the issue of capacity of
the plaintiff in suit No L81/92.
Since the issue of
capacity
is very crucial and fundamental,
it will be considered and
disposed of before we proceed
with further comments in this
appeal.
GROUND 1 OF
APPEAL IN SUIT NO. L81/92
1.
The learned Judges of the Court
of Appeal erred when they held,
affirming the holding of the
High Court, that the
Plaintiff/Respondent/Respondent
had capacity to institute the
action against the
Defendant/Appellant/Appellant.
It appears
learned counsel for the
defendant might have abandoned
this ground because he did not
advance arguments in support
thereof.
However, it
has to be noted that, the issue
of capacity like jurisdiction is
fundamental, and whenever this
is raised it must be dealt with
early to ensure that the issue
of lack of capacity does not
affect the substance of the
action.
In this
appeal, there is no doubt that
the plaintiff herein is a
daughter of Kwabena Agyakwa.
However, because of the system
of inheritance among the Akan
generally, which is matrilineal,
the plaintiff not being a
customary successor to the
estate of her father cannot
automatically succeed him.
However, the plaintiff in her
testimony stated that her father
gifted the portion of land in
dispute to his children. The
defendant did not deny the said
evidence and infact did not
cross-examine the plaintiff when
she testified that the land had
been gifted to her and her other
siblings by their father,
Kwabena Agyakwa.
We
accordingly endorse the
conclusion of the Court of
Appeal when it held thus:-
“the court
dealt with the issue of capacity
of the plaintiff and came to the
conclusion that from the
evidence on record the
plaintiffs had capacity to bring
the action.”
This ground
of appeal is thus dismissed.
GROUND 2 IN
SUIT NO L 81/92 AND GROUND 3 IN
SUIT NO L20/95
2.
The learned Judges of the Court
of Appeal erred in entering
judgment for the
plaintiff/respondent/respondent
as she failed to prove title to
the land in dispute.
3.
The learned Judges of the Court
of Appeal erred in entering
judgment for the
plaintiff/respondents as they
failed to prove title to the
land in dispute.
From our
assessment of the above grounds
of appeal, it is our considered
view that for the plaintiffs’ to
succeed they must be deemed to
have led credible evidence to
discharge the onus that lies
upon them by virtue of their
positions as plaintiffs as has
been laid down in sections 11
and 12 of the Evidence Act,
1975 NRCD 323.
We have
considered the decisions in the
following cases on the burden
of persuasion which a plaintiff
has to satisfy in civil cases,
to wit trials involving title to
land, in order to succeed.
The cases
are:
1.
Ricketts
v Addo [1975] 2 GLR 158 at 166
C.A
2.
Nartey v Mechanical Lloyd
Assembly Plant Limited [1987-88]
2 GLR 314, per Adade JSC
3.
Odoi v Hammond [1971] GLR C.A
per Azu-Crabbe J.A (as he then
was)
4.
Odametey v Clocuh & Anr
[1989-90] 1 GLR 14, at 28 where
the Supreme Court spoke with one
voice through Taylor JSC of
blessed memory.
5.
Ebusuapanyin Kwame Ohember & Anr
vrs Nana Obura Asankoma III and
Anr unreported unanimous
judgment of the Court of Appeal
suit No. 39/2000 dated 17th
July, 2009, Coram Dotse JSC
presiding, Aryeetey JA as he
then was, and Mariama Owusu JA
where the court stated the
following as steps that are
deducible from the ratio in the
decisions in Odametey v Clocuh
already referred to supra.
i.
It has to be considered
whether
the plaintiff has been able to
make a case upon his or her
testimony to entitle him or her
to be granted reliefs upon his
claim.
ii.
Secondly, it has to be
considered whether
the
plaintiff’s case will entitle
him to relief in view of the
defendant’s evidence.
iii.
Thirdly, it has to be considered
whether
if the plaintiff having failed
to make a case from his
testimony can rely on the
weakness in the case of the
defendant and ask for relief.
iv.
Consideration of the weakness of
the defendants case when he
testified.
v.
Whether the weaknesses in the
defendants case enure to the
benefit of the plaintiff’s case.
vi
Finally, the court has to
consider whether the plaintiff
can rely on the weakness of the
defendants’ case, to strengthen
his case – this latter stage
would seem to be contrary to the
principle laid down by Webber
C.J in
Kodilinye
v Odu [1935] 2 WACA, 336 at 337.
Applying the
above stages of proof to the
circumstances of this appeal, we
are of the considered view that
the plaintiff have been able to
lead credible and convincing
evidence by themselves and also
supported by their witnesses.
For example,
the plaintiff in suit No L81/92
apart from her own testimony
tendered a number of credible
exhibits to wit, A, B, C, E, F
and court exhibit Z. The
probative value of the above
exhibits has already been
discussed and there is no doubt
that the plaintiff has been able
to lead credible and acceptable
evidence which in our view
satisfied the criteria set out
in the case of Odametey v
Clocuh already referred
to supra where Taylor JSC stated
the opinion of the Supreme Court
thus:
“I think the
current principle is quite clear
at least since 1st
October 1979 when NRCD 323 came
into force. If there was ever a
doubt about the true principle,
although I am firmly of the view
that there has never been any
doubt, then NRCD 323 has now
definitely cleared all possible
doubts. The position is thus:-
If the
plaintiff in a civil suit, fails
to discharge the onus on him and
thus completely fails to make a
case for the claim for which he
seeks relief, then he cannot
rely on the weakness in the
defendants case to ask for
relief. If however, he makes a
case which would entitle him to
relief if the defendant offers
no evidence, then if the case
offered by the defendant when he
does give evidence discloses any
weakness which tends to support
the plaintiffs claim, then
in such a situation the
plaintiff is entitled to rely on
the weakness of the defendants
case to strengthen his case.”
The change in
the decision delivered long ago
by Webber CJ in the Kodilinye v
Odu case is therefore quite
clear.
Having held
that the plaintiff in suit No L
81/92 satisfied the standard of
proof set out in the Odametey v
Clocuh case supra, we are also
of the view that plaintiff’s
witnesses namely:
PW1
-
Ghartey Boateng Sampong
PW2 -
Alhaji Mohamed Kwame Osei
PW3 -
Enim Ayeko – Surveyor who
prepared exhibits E and 1
PW4 -
Tetteh Narh
As a matter
of fact, the testimony of PW1
has been so overwhelming in many
respects.
This is
because, as a Kwahu citizen we
consider him as independent and
therefore attach a lot of weight
to what he said. He not only
confirmed the evidence of the
plaintiff in suit No L81/92 but
also laid a very strong basis
for the case of the plaintiff,
the descendants of the Krobo
farmers in suit No.L20/92.
In addition,
PW1 demolished the case of the
defendant to such an extent that
there is no point in wasting
time on any further discussions.
On the other
hand, the evidence of the
plaintiffs in suit No. 20/92 and
their witnesses have also been
very credible, consistent and
highly probable and convincing.
What must be noted is that, in
evaluating the case of the
plaintiffs in suit No L20/92,
the background and foundation
evidence led by plaintiff in
suit No L 81/92 and the exhibits
tendered must be taken into
serious contention.
Quite apart
from the above, the case of the
defendant has been so
discredited and is also
inconsistent in relation to
other pieces of evidence on
record that we are not able to
accept it. Refer to analysis on
exhibits 1, 2 and 3-17. These
have been so much discredited
that, under the circumstances we
dismiss the above two grounds of
appeal urged on us by the
defendant.
GROUNDS 1 AND
4 IN RESPECT OF SUIT NO L 20/92
1.
The learned Judges of the Court
of Appeal erred when they held,
affirming the holding of the
learned trial Judge, that on the
evidence the Krobo farmers
purchased the land jointly with
G. D. Ghartey.
4.
The learned Judges of the Court
of Appeal erred when they held,
affirming the holding of the
learned trial Judge, that the
defendant/ appellant/ appellant
had trespassed on
plaintiff/respondent/respondent’s
land when on the evidence on
Record the Respondents had
clearly failed to prove that
title to the disputed lands were
vested in them or that they had
right to possession superior to
that of the appellant.
In
considering the above two
grounds of appeal to this court,
we have been minded to take note
of the fact that, both the trial
High Court and the Court of
Appeal have all made concurrent
findings of fact of very
important issues.
These facts
or issues have been materially
and or substantially confirmed
by this court. There are well
established principles upon
which a second appellate court,
like this Supreme Court will
depart from the findings made by
a trial court and concurred in
by an appellate court.
See cases of:
1.
Achoro v Akanfela [1996-97]
SCGLR 209, holding 2
2.
Doku v Doku [1992-93] GBR 367
3.
Koglex Ltd (No.2) vrs Field
[2000] SCGLR 175 and
4.
The unreported unanimous
decision of this court in suit
No. CA/J4/7/09 dated 3rd
February 2010, intitutled
Assemblies of God Church, Ghana
vrs Rev. Obeng & others
where the Supreme Court spoke
with one voice through me as
follows:-
“There is this general
principle of law which has been
stated and re-stated in several
decisions of this court that
where findings of fact such as
in the instant case have been
made by a trial court and
concurred in by the first
appellate court, in this case
the Court of Appeal, then the
second appellate court such as
this Supreme Court must be slow
in coming to different
conclusions unless it is
satisfied that there are strong
pieces of evidence on record
which are manifestly clear that
the findings of the trial court
and the first appellate court
are perverse.”
In the
instant appeal, we find no such
perverse condition prevailing to
warrant this court to interfere
and or intervene in the findings
of fact so ably made by the
trial court and concurred in by
the learned Justices of the
Court of Appeal.
On our own,
having evaluated the evidence on
record, the testimonies of the
parties as well as their
witnesses, as well as the
relevant exhibits in the case,
we are of the considered opinion
that the finding that the Krobo
farmers purchased the land as a
result of which W. D. Ghartey
became a beneficiary as he was
appointed their leader because
of his special skill cannot be
under estimated.
In similar
fashion, considering the
overwhelming evidence on record
there is no doubt that the
defendant has committed trespass
on the land of the Krobo farmers
and of the plaintiff’s
generally.
In the first
place, the plaintiff’s have been
able to prove to our
satisfaction the fact that their
predecessors acquired the land
from the predecessor of the
plaintiff in suit No L 81/92.
The plaintiff
therein confirmed it and
supported it with relevant and
convincing evidence through the
tendering of documents.
Secondly,
there have been massive overt
acts of ownership established by
the plaintiffs about their
strong presence on the land.
Thirdly, it
should be noted that, because
the defendant as it were is
challenging the title of his
predecessor’s grantor i.e.
Kwabena Agyakwa, he has not been
able to provide any credible
documentary evidence save the
self serving exhibits I and 2,
3-17, all of which have been
discussed supra. Besides,
evidence of DW2 clearly showed
that the defendant had over 74
Grunshie people on the land.
This is clear trespass committed
by him.
We are thus
unable to uphold the above
grounds of appeal as well. They
are accordingly dismissed.
Grounds 3 of
appeal in suit No. L 20/92 and
Ground 2 of Appeal in suit No. L
81/92 will next be considered.
3.
The learned Judges of the Court
of Appeal erred when they held,
affirming the holding of the
learned trial Judge, that the
boundaries of the land owned by
Ghartey (the predecessor of the
Defendant/Appellant/Appellant
are as shown in exhibit Z marked
I and Exhibit E.
2.
The learned Judges of the Court
of Appeal erred when they held,
affirming the decision of the
learned trial Judge, that the
boundaries of the land owned by
Ghartey (the appellant’s
predecessor) are as shown in
exhibit Z (marked 1) and exhibit
E.
In our
evaluation of the above grounds
of appeal, we consider the
effect and weight not only of
the parties testimony in court,
but also the importance of the
exhibits tendered.
In the
instant appeal, the defendant
mentions exhibits E, Z and I all
of which are Survey plans. It
must be noted that all of them
have been prepared under
different circumstances. Whilst
exhibit E was prepared under the
direction of the Eastern
Regional Minister, exhibit Z was
prepared under the authority of
the Court.
Exhibit 1 was
prepared as a self serving
document by Kwesi Ghartey and
has been held not to have any
evidential weight and value
whatsoever.
Under the
circumstances, the conclusions
reached by the Court of Appeal
cannot be said to be based on
speculation. On the contrary,
they should be considered as
having based their conclusions
on hard and acceptable
principles of reception of
evidence.
Thus, where a
court ordered the preparation of
a survey plan, and the other
plan prepared under the auspices
of a Regional Minister, where
all the parties concerned had
the opportunity to indicate and
show their lands to the Surveyor
in an open and transparent
transaction, it is to be
considered more credible and
respectable exercise than the
one sided survey plan prepared
for and by the defendants
predecessor, e.g. exhibit 1.
In addition,
the plaintiffs in both cases and
their witnesses must be taken to
have led more credible evidence
that the defendant. DWI for
instance contradicted in
material particulars the
evidence of the defendant.
Under the
circumstances we are of the view
that the documentary evidence
proffered by the plaintiff’s has
been able to support their case
as against the case of the
defendant. We find support in
this by the decision of the
Supreme Court in the case of
Fosua & Adu Poku v Dufie
(Deceased) & Adu-Poku Mensah
[2009] SCLGR 310
holding 1 where the court
unanimously held as follows:
“It was
settled law that documentary
evidence should prevail over
oral evidence. Thus, where
documents supported one party’s
case as against the other, the
court should consider whether
the latter party was truthful
but with faulty recollection.”
In the
instant appeal, having reviewed
the evidence on record, we are
of the firm belief that the
recollections of the evidence by
the plaintiff’s have been more
truthful than the defendant.
Secondly, the
documentary evidence relied upon
by the plaintiffs had been
credible. They are therefore to
prevail over the one sided
exhibits tendered by the
defendant.
We will
therefore dismiss these grounds
of appeal as well.
This will
then leave us with the following
grounds of appeal – Ground 4 of
appeal in suit No. L81/92.
4.
The learned Judges of the Court
of Appeal erred when they made
an order for recovery of
possession of the disputed land
in favour of the
Plaintiff/Respondent/Respondent.
The order for
recovery of possession granted
by the learned trial Judge in
favour of the plaintiff therein
is in our opinion a natural and
consequential order that flows
from the facts and findings made
by the trial court. Having so
ably upheld the declaration of
title in favour of the
plaintiffs, the Court of Appeal
had no option other than to
confirm the order of recovery of
possession.
It must be
noted that, in an action for
trespass where evidence abounds
that the defendant has brought
over 74 Grunshie people onto the
land in dispute, and that piece
of land has been found not to
belong to the defendant then it
follows that the person adjudged
the owner must be put in
possession. This is particularly
important in view of the fact
that the evidence of trespass
has been confirmed not only by
exhibit F, but also by the
defendants own witnesses who
confirmed the large presence of
Grunshie men brought onto the
land at the instance of the
defendant.
Besides,
sight must also not be lost of
the fact that it has been
generally accepted that before
the entry of the defendant onto
the scene, all had been quiet at
Miaso that is before the death
of his uncle Kwesi Ghartey.
The only
logical deduction is that, it
was the defendant who
destabilised the serene
atmosphere that prevailed in the
area upon his entry. He must
therefore be removed from the
portions of the land that do not
belong to him and vested in the
bonafide owners.
This ground
of appeal, like the others is
also dismissed.
CONCLUSION
In the
result, we dismiss the appeals
filed by the defendant herein in
the two consolidated suits, No
L81/92 and 20/92 respectively.
The appeals are accordingly
dismissed as being without any
merit whatsoever.
We therefore
affirm the judgment of the Court
of Appeal, dated 3rd
April 2008 and by necessary
implication that of the trial
High Court, dated 21st
January, 2003.
(SGD)
J. V. M DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
DR. S.K. DATE-BAHJ.S.C
JUSTICE OF THE SUPREME COURT
(SGD)
J.
ANSAH
JUSTICE OF THE
SUPREME
COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL:
ALBERT ADAARE
FOR APPELLANT.
ODAME ADUFU
FOR THE RESPONDENTS.
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